Ted Olson and the pushovers

-- by Dave

Why is it that foulmouthed left-wing bloggers seem to be the only people who have noticed that there's a peculiar set of political rules ruling the Beltway, particularly within media circles, these days?

Here's what we've noticed: For some reason, Democrats must be the model of decorum and civility and moderation and bipartisanship when it comes to governing; any deviance from this script brings on fainting spells and finger-wagging. Meanwhile Republicans can be as vicious and nasty and ruthless and nakedly partisan as they please, and their "toughness" is merely celebrated.

Just this morning, Sen. Patrick Leahy laid out in an L.A. Times op-ed what the Senate Judiciary Committee hoped to see from any forthcoming nominee to replace Alberto Gonzales as the nation's Attorney General. It's straightforward and thoughtful, largely in line with the bipartisan tone Democrats have adopted in making clear what they're hoping for from the White House in the wake of the mess over the firings of nine U.S. Attorneys that resulted in Gonzales' resignation. It concludes:

The president begins this process. Through his choice for attorney general, he can be a uniter or a divider. For the sake of the Department of Justice and its vital missions on behalf of the American people, this would be an excellent time to work with us to unite the nation.

"Work with us" has been the byword for Democrats on the nominee. But this same morning, a New York Times report gave us a clearer picture of the White House's idea of working with Democrats:

The White House is closing in on a nominee to replace Attorney General Alberto R. Gonzales, with former Solicitor General Theodore B. Olson considered one of the leading candidates, administration and Congressional officials said Tuesday.

Reports of Mr. Olson's candidacy suggested that President Bush, in choosing the third attorney general of his presidency, might defy calls from Democrats and choose another Republican who is considered a staunch partisan to lead the Justice Department. Mr. Gonzales is departing after being repeatedly accused of allowing political loyalties to blind him to independently enforcing the law.

"Clearly if you made a list of consensus nominees, Olson wouldn't appear on that list," said Senator Charles E. Schumer, the New York Democrat who led the Judiciary Committee effort to remove Mr. Gonzales. "My hope is that the White House would seek some kind of candidate who would be broadly acceptable."

Nominating Ted Olson is nothing short of a sharp stick in the eye to Democrats. Because they don't come any more partisan and power-grabbing and ruthless than Ted Olson. There isn't a more consummate Bush insider than Olson.

Olson's name was floated as a potential AG last March, when it first appeared that Gonzales was in trouble, and as I noted at the time, such a nomination would essentially be asking to replace Gonzales with Gonzales On Steroids, especially when it came to the executive-privilege claims the White House used to protect itself during the congressional investigations into the USA firings.

But then, as Tom Schaller observed at the time:

The GOP understands that real power has less to do with election results than legal maneuvering. In fact, conservative lawyers worked hard during the last decade to limit presidential power, before promptly reversing course after Mr. Bush won ...

And there's no one who understands this better than Ted Olson, who has a long and sordid legal career devoted largely to Nixonian manipulation of the law on behalf of Republicans. The classic example: Olson complained bitterly about the independent-counsel laws as being open to abuse when he was himself the subject of an IC investigation in the 1980s (a matter I explored in some detail for Salon). Yet in the 1990s, he was an ardent advocate of abusing the IC statutes in pursuit of President Clinton, as Joe Conason reported in some detail as well.

Those early years, as I reported, also raise considerable doubts about Olson's subsequent reputation for his superb legal acumen. His attempts to claim executive privilege for the Reagan White House -- which resulted in political disaster for Reagan -- were later described by a prominent Republican involved in the mess as "without a doubt the sloppiest piece of legal work I had seen in 20 years of being a lawyer."

Of course, much of the country remembers Olson as George W. Bush's advocate before the Supreme Court in the 2001 Florida election fight, wherein he also distorted and fabricated his way to one of the most dubious legal victories in history. When he was subsequently nominated to be the nation's Solicitor General, he once again distorted and misled his way through Senate confirmation hearings, effectively covering up his ugly partisan role in the Clinton witch hunt.

Subsequently during his tenure as SG (which ended in 2004) he played a key role as the White House's legal architect, and almost certainly was the brains behind its wide-ranging grab of executive powers:

Certainly in many other areas -- particularly the aggressive assertion of executive powers in setting up military tribunals and designating citizens "enemy combatants," as well as various surveillance powers under the so-called Patriot Acts -- the Bush White House has displayed all the signs of attempting to reacquire powers lost to the executive branch in the 1970s … a belated "Nixon's revenge," as it were. There is a high likelihood that Ted Olson has been one of the guiding lights in these acquisitions.

"Executive privilege" is especially an area near and dear to Olson's heart. And it is clear, from his record, that Olson believes such privilege should be nearly illimitable -- unless, of course, the president is a Democrat.

What his record especially suggests is that Olson may very well lead the Bush White House on a merry goose chase, attempting to extend executive privilege into areas where it was never intended, and where almost certainly legal mischief could turn up afoot. It has the makings of a real train wreck.

This is especially the case now, with a Roberts Court that likely would give this White House wide deference on such claims. With Olson in charge of the Justice Department, the White House would have a wide berth to pursue these executive-privilege claims with impunity.

Compare, if you will, Olson's track record with the criteria Leahy offers in his op-ed:

* Experience and sound judgment grounded in respect for the law and for the vibrant framework of checks and balances among co-equal branches of government.

* A proven track record of independence to ensure that he or she will act as a check on this administration's expansive claims of virtually unlimited executive power.

* The commitment and the personal attributes needed to regain credibility and the respect of the public, Congress and the Justice Department's workforce.

* A willingness to apply the law without fear or favor, without regard to partisan politics, and to stand up to the White House when necessary. The attorney general is the people's lawyer, not the president's.

* A commitment to restore vigilance and vitality to a civil rights division that has been run onto the rocks by misdirection and by shameful -- possibly even illegal -- efforts to replace dedicated career attorneys with applicants who were improperly hired for their political loyalty to the Bush administration.

* A respect for Congress' oversight role. At its best, the confirmation process can be a clarifying moment. It can also be a catalyst for resolving problems like the White House's refusal to provide witnesses and documents that are needed to answer questions about the U.S. attorneys scandal and the warrantless wiretapping program.

Now, there are many Republicans, good loyal conservatives, who would fit this description more than adequately. But if Olson really is the nominee -- and it's hard to say whether this is a mere trial balloon -- then it would be hard to envision someone who less meets the qualifications. On nearly every count, Olson fails, sometimes spectacularly.

We'll see if Olson is indeed the nominee; but even if he isn't, the fact that he's one of the favorites sends a message. The White House's response to Leahy and the Democrats is loud and clear, and one we've heard before: Go fuck yourselves. You want us to replace Gonzales, a reliable right-wing lackey? Fine; we'll give you a right-wing consigliere.

If Olson is nominated, watch for the Beltway media in the following days to briefly wring their hands about this rather naked poke in the eye but eventually come around to the conclusion that Bush's nomination is "bold" and represents his "resoluteness" or some such nonsense. Then the right-wing Wurlitzer will kick in and start reminding us what a swell fellow Ted Olson really is (I think you can hear Joe diGenova and Victoria Toensing winding up their grinders even as we speak).

Compare this, if you will, to the mass tut-tut coming from the Beltway over MoveOn.org's tough treatment of Gen. Petraeus for his report to Congress. And even more pointedly, it's worth noting Democrats' response to the assault -- namely, to cower and run from their own best advocates.

These, then, are the Bush Rules in action: Only Democrats have to be civil. "Bipartisanship" means acceding to the conservative agenda. And Republicans can be as vicious as they like, because then we'll just call it "toughness" or, if it's really ugly, "just a joke."

You'd think by now that Democrats would have figured out they're being played for patsies, that the calls for "civility" are just an obfuscatory demand for capitulation and a cover for the right to indulge in the lowest and meanest kind of discourse. But judging from the past week's events, it's clear they haven't.

So while I'd like to believe that Ted Olson finally will get the major public scrutiny he deserves -- particularly for his long history of misleading testimony before Congress, probably not a trait one would want in an Attorney General -- I'm also reminded that the last time Leahy and Co. had him in their sights, they wound up being outmaneuvered by Senate Republicans.

But then, they'll at least be applauded for their civility, won't they?

[Cross-posted at Firedoglake.]