Legal Warrior
Can the lawyer who won Bush v. Gore win over social conservatives for Rudy Giuliani?

The Wall Street Journal, Saturday, November 24, 2007

WASHINGTON--Rudy Giuliani doesn't always follow Ted Olson's advice. "I remember conversations with Rudy before he became mayor when he was thinking about running," Mr. Olson says. "I was asking him, 'Why in the world would you want to do this? A, you can't get elected. You're a Republican; it's New York City. And B, there's nothing that can be done about New York City. It's too big; the problems are too deeply engrafted onto the city; the city's in the grip of labor unions, crime, high taxes, heavy burdens. The city's a terrible place, and it's too big to govern.' "

Just as Mr. Olson was sure Mr. Giuliani couldn't get elected in New York because of his party, it has been a common assumption that the former mayor cannot win the Republican presidential nomination because of his liberal positions on social issues, particularly abortion and guns. Mr. Olson is one of the nation's top conservative lawyers, having represented President-elect Bush in Bush v. Gore and served as Mr. Bush's solicitor general. As chairman of Mr. Giuliani's Justice Advisory Committee, he intends to help the candidate defy conventional wisdom again.

Sitting in Mr. Olson's law office during our early-morning interview, I ask how his candidate can reassure social conservatives. Mr. Olson points to the judiciary: "Judges have taken some of those decisions off the policy table, taking them away from the people by constitutionalizing these issues. The only thing that someone elected president can do about those things is appoint good, solid judges who will act as judges--interpret the law, not make it up; not create new rights that weren't there in the Constitution. I am convinced . . . that Rudy knows how important it is to appoint the right kind of individuals as judges, and that he will do that."

Mr. Olson has known Mr. Giuliani since 1981, when the two young lawyers held senior Justice Department positions. Mr. Olson is full of praise for his erstwhile colleague: "He's a wonderful person to work with. He's got ideas, he's got vision, he's got leadership. . . . There's tremendous loyalty to him and from him because of the relationships he develops with people."

The pair remained friends as both built impressive careers. Mr. Giuliani served as New York's high-profile U.S. attorney before seeking the mayoralty, which he lost narrowly in 1989 and won in 1993.

Mr. Olson spent most of his time in private practice, earning a reputation as one of the nation's leading appellate attorneys. In 2001 President Bush nominated him solicitor general, the lawyer in charge of arguing the government's positions before the Supreme Court. He held that post until 2004.

Mr. Olson was barely confirmed in May 2001, when the Senate was still nominally in Republican hands. The tally was 51-47, with only two Democrats voting "yes."

Democrats objected to his choice of clients: In addition to his work on Bush v. Gore, in the 1990s he gave legal advice to The American Spectator, a conservative magazine whose dissent and muckraking made it the target of a Clinton administration grand-jury probe. (Disclosure: I write regularly for the Spectator.)

This past September, Mr. Olson made news when Senate Majority Leader Harry Reid opposed his confirmation as attorney general--a position to which the president had not even nominated him. When I observe that Mr. Olson would not have been confirmed, he readily agrees: "I never would have been able to get out of that [Senate Judiciary] Committee, so there would never have been a vote at all."

Mr. Bush instead went with the "consensus" choice, Judge Michael Mukasey. "I think the judgment was correct," Mr. Olson says, describing the new attorney general as "an outstanding person." But even Mr. Mukasey had a difficult confirmation: Mr. Reid and all but six of his fellow Democrats voted against him.

At issue was "waterboarding," an interrogation technique the CIA is believed to have used to extract life-saving information from a handful of high-level al Qaeda terrorists. Democrats demanded that Mr. Mukasey pronounce waterboarding a form of "torture." He demurred.

Mr. Olson argues that Mr. Mukasey had no choice: "Whatever he had said would have put himself into a box. They were basically asking him to say that something was illegal that the administration had already said that it had done.

"Now, when you're about to become the chief law-enforcement officer for the United States, you don't start pronouncing that certain people are guilty of committing crimes. . . . And he did not have information relative to the actual circumstances. Waterboarding might or might not be torture, it might or might not be legal, depending upon the circumstances--depending upon how severe it was, depending upon how exigent the need was for it. He couldn't answer those questions."

The Democrats' objection was but a pretext anyway, Mr. Olson suggests. "I think many of those senators knew he couldn't answer those questions. . . . Everybody admitted that he had great credentials and was highly qualified to be attorney general." If they refused to give him a vote, they could not have complained credibly about the lack of leadership at the Justice Department: "I think they finally decided, 'We need to get out of this box,' and [Chuck] Schumer and [Dianne] Feinstein helped them out of the box by getting him out of committee and allowing the vote to take place."

The war on terror--or, as Mr. Giuliani has called it, "the terrorists' war on us"--has been pivotal in the lives of both Mr. Olson and Mr. Giuliani. The attacks of 9/11 took a grievous personal toll on Mr. Olson. His wife, Barbara, a conservative pundit, had planned to fly to Los Angeles for a television appearance on the eve of his 61st birthday (he was born Sept. 11, 1940). She postponed her trip so she could have breakfast with him on his special day. As a result, she was aboard American Airlines Flight 77 when hijackers crashed it into the Pentagon.

When I ask Mr. Olson how his loss has informed his views on terrorism, he says, "I think everybody in this country felt it personally, and I think Barbara was a personal symbol to a lot of people. She personified Sept. 11 because they'd seen her on television so many times. I received thousands and thousands of letters from people who had identified with her--people that agreed with her, and many people that did not agree with her."

The war on terror put Solicitor General Olson on the front lines of the legal battlefield. In 2004, when the first round of terrorism cases reached the Supreme Court, Mr. Olson argued the government's case. One of the resulting decisions, Rasul v. Bush, continues to ramify. The justices held that terrorists at Guantanamo Bay had a statutory right to challenge their detention by petitioning a federal court for a writ of habeas corpus.

To reach this conclusion, the court had to overturn a 1950 case, Johnson v. Eisentrager, in which the justices ruled that alien enemy combatants held overseas did not have such rights. The habeas statute had not changed since Eisentrager. "Congress had 50 years within which to change it," Mr. Olson says. "It did not change the statute, and the court reversed itself. Justice [Antonin] Scalia, in his dissenting opinion, . . . pointed out the administration quite properly relied on what the Supreme Court had said before."

The matter remains unresolved, despite Congress's efforts to correct the court's interpretation. The Detainee Treatment Act of 2005 stripped federal courts of jurisdiction over Guantanamo detainees' habeas petitions. But last year, with Justice Anthony Kennedy casting the swing vote, the court ruled in Hamdan v. Rumsfeld that the act did not apply to petitions already filed. The Military Commissions Act cured this infirmity, but the challenges continue. This term the court is expected to decide whether detainees have a constitutional right to petition for habeas corpus.

What will the justices do? Mr. Olson knows the Supreme Court as well as anyone, but his guess is as good as mine: "I think it all depends upon Justice Kennedy."

If 9/11 was personally devastating for Mr. Olson, it was politically transformative for Mr. Giuliani. The mayor's calm in the face of catastrophe made him a national hero. As Time magazine put it in proclaiming him Person of the Year, "When the day of infamy came, Giuliani seized it as if he had been waiting for it all his life, taking on half a dozen critical roles and performing each masterfully."

Mr. Olson echoes the sentiment: "You can't prepare as a leader for something like that. You don't know what you're going to do. You don't know what you're going to be made of. His instincts were the kind of instincts that we need in a leader. He went to where the problem was. He understood what the people needed in terms of compassion, in terms of stability, in terms of determination, in terms of inspiration. 'We will fight back. We are New Yorkers. We will not be defeated. We are Americans.' Those are the things people needed to hear."

Thus Mr. Olson's succinct case for President Giuliani: "He knows how to deal with a crisis, a disaster. He knows how to fight terrorism."

What about those social conservatives Mr. Giuliani has to win over? A few hours after I interviewed Mr. Olson, he introduced Mr. Giuliani's speech at the annual conference of the Federalist Society, the hub of the conservative legal community. Sure enough, the former mayor promised that as president he will choose judicial nominees "with the advice of people like Ted." He seemed to be on the same page as his adviser: "We need judges who embrace originalism, endeavor to determine what others meant when they wrote the words of our Constitution--justices like Justice Scalia, Justice Thomas, Justice Alito and Chief Justice Roberts. That would be my model."

He reassured the gun-rights constituency, praising the recent appellate decision that struck down the District of Columbia's handgun ban as a violation of the Second Amendment. (The Supreme Court agreed this week to hear the district's appeal.) He weighed in on several other hot-button constitutional questions: against the use of eminent domain to benefit private developers, against racial quotas, for allowing "under God" to remain in the Pledge of Allegiance and the Ten Commandments to be displayed in public.

But he said not a word about Roe v. Wade, the decision that imposed abortion on demand nationwide via fanciful constitutional reasoning. Social conservatives in the audience noticed the omission. If Mr. Giuliani is trying to win their support, he isn't doing it the easy way.

Then again, maybe it won't matter. It is often said that 9/11 changed everything. In a few months we will have a better idea of whether and how it changed Republican presidential politics.

Next article: The Second Time as Farce (The American Spectator, 12/07-1/08)

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