In a move calculated to avoid a partisan floor fight in the early days of the Democratic majority, following Senator James Jeffords defection from the GOP, majority leader Daschle agreed to let the nomination of Theodore Olson to be solicitor general come to the senate floor, where it passed 51-47. The solicitor general is the government's advocate before the Supreme Court. Democrats could have filibustered the nomination, but chose not to. Senators Zell Miller of Georgia and Ben Nelson of Nebraska broke ranks with their party to vote for Olson. Senator Hillary Rodham Clinton derided the Republican leadership for rushing the Olson nomination onto the senate floor. "I think it's an act of raw political partisanship to save a nomination that clearly is in trouble and should not go through," she said.
Earlier this month Democratic senators had achieved a modicum of solidarity when the Judiciary committee voted 9-9 along party lines on the Olson nomination. Two previous votes had been postponed because of concerns raised by Democrats about Olson's testimony. Under the current agreement for sharing political power between major parties in the senate, party leaders can take nominations to the floor of the senate in case of deadlock, and following the vote Judiciary Committee chairman Orrin Hatch asked Senator Trent Lott to do so. On the senate floor 60 votes were required to consider the question of the nomination. Democrats asserted that Olson's testimony had been evasive at best concerning his involvement in the "Arkansas Project" -- a group that sought to smear the Clintons. Olson denied being involved in the "origin and management" of the Arkansas project, but that statement has been contradicted in reports by Salon.com and the Washington Post.
The Arkansas Project was run from the offices of American Spectator magazine, a conservative monthly headquartered in Arlington, VA. Olson was a member of the magazine's board of directors, and reportedly was present at the founding meeting of the Arkansas Project on a boat in the Chesapeake Bay in November of 1993. As chronicled in Joe Conanson's book, The Hunting of the President, at the 1993 meeting Richard Larry, representing conservative financier Richard Mellon Scaife, proposed using Scaife's money to try to link the Clintons to Vince Foster's death, allegations of drug dealing at the Mena Airport in Arkansas, and similar stories. Scaife had already contributed more than $3 million to the Specator's tax-exempt parent organization, effectively producing a conservative political lobbying group under a nonprofit umbrella.
Despite paying out nearly $2 million to a dubious array of conspirators, the project never produced anything that even the Spectator's own editor considered credible journalism. "There always seemed to be lots of hush-hush and heavy breathing, but it never amounted to anything concrete enough for a story," wrote executive editor Wladyslaw Pleszczynski in 1997. Organizations exempt for taxes under regulation 501(c)3, such as the Spectator Foundation, are prohibited by the IRS from engaging in political activities like lobbying or "opposition research." When publisher Richard Burr tried to audit the project, however, he was fired, and given a severance package in excess of $300,000 in exchange for his silence. His replacement on the Spectator board was Ted Olson.
The Spectator's leading investigative reporter at the time, David Brock, told the Washington Post that Olson had encouraged the publishing of a story that Bill Clinton had somehow directed the killing of Vince Foster, " because the role of the Spectator was to write Clinton scandal stories in hopes of 'shaking scandals loose.' " The Spectator has tried to claim that Brock was not part of the Arkansas Project, but Spectator financial records from 1995 obtained by Salon.com identify almost $40,000 in payments to Brock as Arkansas Project expenses, and Brock has detailed several trips he made on behalf of the project in 1994 and 1995.
As for Olson himself, Joe Conason reported in the New York Observer that American Spectator financial records also show payments to Olson's law firm marked as expenses for the Arkansas Project. Olson reportedly wrote a memo in 1994 stating that his law firm had been asked to develop a " chart summarizing various federal and state criminal laws that may be implicated by conduct of certain public officials."
Olson changed his initial April 19 statement to the committee, after a series of written questions from senior minority Judicial Committee member Patrick Leahy, to say that he "was not involved in organizing, supervising or managing the conduct of those efforts," and did "not recall giving any advice concerning the conduct of the 'Project' or its origins or management." Faced with Olson's backpedaling, Brock's testimony, and expanding evidence of Olson's involvement in the Arkansas Project, chairman Hatch admitted that there were "legitmate" questions about Olson's role.
Even Olson's current position is questionable in light of available evidence to the contrary. Olson claims he did not know of the project until 1997, despite reports of the 1994 memo. Mr. Olson also changed his story about how came to represent former judge David Hale's. Hale, who has been characterized as a "swindler," and "con-man," became Kenneth Starr's chief witness against the Clintons in the Whitewater investigation. Olson has vacillated about how he met Mr. Hale, but David Henderson, a director of the Spectator foundation and close associate of Richard Scaife, has admitted introducing Hale to Olson. At the time Olson already represented the Spectator, and Mr. Henderson was in charge of the Arkansas Project.
Potential conflict of interest, or at least the appearance thereof, for a Solicitor General designate, surfaced earlier this year when Olson argued for the Bush campaign before the Supreme Court. Conservative Justice Antonin Scalia's son Eugene, it was revealed, is a partner at Olson's law firm. (Another of Scalia's sons, John, joined the firm of Barry Richard who represented the Bush campaign before the Florida Supreme Court).
Salon.com suggested that the real reason to reject Olson's nomination was the same reason Republicans denounced Bill Clinton so vehemently -- not his activities, but that he lied about them. In this case, however, it appears political expediency triumphed.
Holland, Jesse J. "GOP gets Olson confirmed before handing over Senate control" Associated Press 25 May 2001.
Conason, Joe "Arkansas Project Should Haunt Olson" New York Observer 18 May 2001 (for the 21 May edition): 5.
Conason, Joe "The Ties That Bind Scalia and Olson" New York Observer 18 Dec. 2000: 5.
Holland, Jesse J. "Senators in 9-9 deadlock on Olson nomination" Associated Press. 17 May 2001.
Alterman, Eric "Olson takes a tumble" MSNBC.com 11 May 2001.
Kamiya, Gary "Why the Senate should reject Ted Olson," Salon.com 18 May 2001
Lindsey, Daryl and Kerry Lauerman "Smearing David Brock" Salon.com 17 May 2001
Lewis, Neil A. "Senate Committe Is Split by Party on a Bush Nominee" NYTimes.com 18 May 2001