Bench Memos

Ted Olson’s Shameless Pandering

Today’s Wall Street Journal has an essay by noted political theorist Supreme Court advocate Ted Olson arguing that Senator McConnell is doing the nation a great disservice by refusing to act on the Garland nomination. According to Olson, the judicial confirmation wars are “damaging to the court and corrosive to civil discourse,” which is bad because “the public’s willingness to accept decisions depends on the court’s moral authority, independence, reputation and integrity.”

Once he runs out of bromides, he proposes a solution:

As unlikely as it might be, Republicans could make Merrick Garland’s nomination a turning point. But it cannot be a unilateral cease-fire. If they are willing to consider Mr. Garland on the merits, Democrats would in exchange have to commit to consider future Supreme Court nominees with the same level of courtesy, decency and respect when a Republican occupies the White House.

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If, however, a pact could be reached among responsible Republican and Democratic leaders to give well-qualified Supreme Court nominees of either party a hearing and a vote within 120-180 days of a nomination, we could start down a path toward restoring an atmosphere of respect and civility to this process—and to prospective Supreme Court justices.

Some might say Olson’s proposal is naive. After all, Republicans seemed to be seeking a truce after the Bork and Thomas confirmation fiascoes by giving Breyer and Ginsburg nearly unanimous votes in the Senate. If giving the former General Counsel of the ACLU a clear path to the Supreme Court isn’t enough to prove the GOP’s willingness to defer to presidential prerogatives in this area, I don’t know what is.

Democrats rewarded the show of good faith with even more obstruction. In fact, President Obama is the first president in American history to have personally filibustered a Supreme Court nominee (Alito). That failed filibuster followed the so-called “Gang of 14″ agreement, which was yet another good-faith Republican attempt to deescalate the judicial confirmation wars. It was perceived as naive and counterproductive by many conservatives, who were eventually proven right: Democrats abandoned the Gang’s agreement after Democrats took control of the Senate in the 2006 elections and used their majority to block conservative nominees.

But Olson knows all of that. And he is not naive. So what is he up to?

Olson’s piece is all about polishing his standing within certain social networks and marketing himself to judges and prospective clients who might otherwise question the value of hiring him to argue in front of a Court dominated by liberals. If that isn’t what Olson is up to, why did he say that the onus is on Republicans instead of Democrats? As others have suggested, Democrats could make the first move in this disarmament pact by withdrawing the Garland nomination and agreeing to hold the seat open until the next presidential term. And they could follow that by supporting some sort of legally meaningful step to prevent Democrats from obstructing the next Republican president’s nominees.

The bottom line is that you don’t upgrade from SuitSupply to Brioni by being an idiot, and no one ever accused Ted Olson of being an idiot. He is a hired gun. He has always been a hired gun. And that is precisely why conservatives should be glad that he is enjoying the fruits of his labor, and not life tenure or what Justice Jackson described as the infallibility of finality.


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