Why Not Ted Olson

In Washington’s conventional wisdom, Senate Democratic Leader Harry Reid’s opposition killed Theodore B. Olson as President Bush’s choice for attorney general. But that is not the whole truth. From the moment Alberto Gonzales resigned on Aug. 27, there was divided advice about Olson inside the White House. Influential senior aides flinched at a difficult confirmation, reflecting a disinclination to confront Democrats — with consequences for the last year of George W. Bush’s presidency.

Before Reid issued his dictate, there was hand-wringing among the president’s aides not only about former Solicitor General Olson but other well-qualified prospects who might not meet the Reid test. That launched a three-week search for someone to satisfy Senate Democrats while not antagonizing the conservative Republican base — no easy task. The best Bush’s talent scouts could do was Michael B. Mukasey, a 66-year-old retired federal judge who appears unqualified and ill-equipped for his daunting task of rehabilitating the Justice Department.

The selection of Mike Mukasey instead of Ted Olson prompts worries among loyal Republicans that transcend Justice’s problems. The White House first indicated that the president would veto the expensive student loan bill, but it has switched signals. After considering vetoing a congressional ethics bill that does nothing about earmarks — or at least letting it become law without his signature — he signed it, albeit without a ceremony.
That has spawned speculation over whether Bush really would veto a popular health insurance bill or a catchall appropriation, the latter at the risk of closing down the government. An unpopular president managing an unpopular war, he looks like a lame duck playing out the string.

The White House’s short list of successors to Gonzales included Republican lawyers with broad, high-level experience inside the Justice Department: George Terwilliger and Laurence Silberman, both of whom had served as deputy attorney general, and Olson.
Terwilliger did not survive the White House selection process, and administration sources said there was doubt Silberman — currently a U.S. Appeals Court judge for the District of Columbia circuit in senior status — would accept. That left the highly esteemed Olson.

Behind the closed doors of the White House, a spirited debate ensued. Olson had just the experience and ability to clean up the Justice Department. But in 2001, he was barely confirmed as solicitor general, 51 to 47, largely along party lines. With no challenge then to his qualifications, Democrats cited his role as a board member of the American Spectator magazine investigating President Bill Clinton. The White House debate was settled last week when Sen. Reid flatly declared Olson could not be confirmed.

Bush insensibly bought into Democratic senators’ confusion of confirmation standards — between federal judges who will be on their own for lifetime service and a Cabinet member serving at a president’s pleasure and executing his wishes. Ideology aside, Mukasey is not well qualified to be attorney general by any rational standard. With his governmental career exclusively as a prosecutor and judge, he now is being asked to bring order to a building he does not know. He will not get much help from a desiccated and demoralized staff, which now lacks both a permanent deputy and associate attorney general.

What concerned the White House, however, was not Mukasey’s administrative skills but the perception of his ideology. Mukasey was attractive to Bush aides dreading a tough confirmation battle because of support for him by Democratic Sen. Charles Schumer, his fellow New Yorker who has led many fights from the Senate Judiciary Committee against Bush nominees. But Schumer’s support and leftist judicial advocate Nan Aron’s earlier recommendation of Mukasey for the Supreme Court made him suspicious in the eyes of conservative Republicans.

The president’s team was not repeating the earlier mistake of suddenly springing the Supreme Court nomination of Harriet Miers, only to have her shot down by conservatives. Senior aides Ed Gillespie and Barry Jackson contacted conservatives last weekend, and some talked personally with Mukasey. He passed muster with them as conservative enough.

Presidents sometimes regret making nominations for the sake of presumed confirmability, but the beleaguered Bush team did not feel it had much choice in picking Gonzales’s successor.