Nation Topics - Law | The Nation

Remember when Hillary Clinton dared suggest that a vast right-wing
conspiracy was behind the campaign to destroy her husband's presidency?
Well, the troubles besetting the nomination of Theodore B. Olson as US
solicitor general provide stunning evidence of what she had in mind.

Olson's confirmation hearing was abruptly suspended last week by
Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) after a report
in the Washington Post raised questions about Olson's truthfulness under
oath about his relationship to right-wing billionaire Richard Mellon
Scaife and the $2.3-million, anti-Clinton Arkansas Project of Scaife's
American Spectator magazine. Olson served as the magazine's lawyer and on
its board of directors, but when questioned by Democratic members of the
committee as to his connection with the infamous Arkansas Project, Olson
stated: "It has been alleged that I was somehow involved in that
so-called project. I was not involved in the project in its origin or its
management."

That statement was subsequently contradicted in testimony before the
Judiciary Committee by David Brock, the writer responsible for the key
American Spectator articles attacking the Clintons. Brock stated that he
was present at "brainstorming" sessions on the Arkansas Project with
Olson at the home of American Spectator Chairman R. Emmett Tyrrell Jr.
Brock connected Olson with the Spectator's strangest article linking
Clinton to the suicide of his close friend and aide, Vincent Foster.
According to the Post, Brock said Olson told him that "while he didn't
place any stock in the piece, it was worth publishing because the role of
the Spectator was to write Clinton scandal stories in hopes of 'shaking
scandals loose."'

That is not the sort of judicious, nonpartisan stance that one would
hope for from a nominee to the position of solicitor general, often
called the "tenth member of the Supreme Court," who represents the US
government before the Court.

Since judicial objectivity is key to the performance of this
all-important job, it was irresponsible of President Bush to nominate
Olson, a key leader of the right wing's nonstop attacks on Clinton. Olson
not only was deeply connected with Scaife and the American Spectator but
he also represented David Hale, the key witness against Clinton in the
Whitewater case, and advised Paula Jones. His partisanship was amply
manifested when he represented Bush before the US Supreme Court to halt
the recount of Florida ballots.

But the issues now being raised against Olson's nomination go beyond
partisanship and deal with the honesty of his testimony under oath before
the Judiciary Committee. In addition to the testimony of ex-Spectator
writer Brock, the Washington Post reported that Olson and a fellow law
partner at Gibson, Dunn and Crutcher prepared some of the anonymous
anti-Clinton material that was published in the Spectator.

The Post reported last Friday that American Spectator documents show
that Olson's law firm was paid more than $14,000 for work on the Arkansas
Project. Part of this money was to pay for a hit piece on the Clintons
that Olson purportedly wrote under a pseudonym, cataloging all the
possible laws that the Clintons might have violated if the
unsubstantiated charges hurled at them by their right-wing critics proved
true.

After the Post ran its story last week, Hatch conceded "there are
legitimate issues" justifying his decision to defer action on Olson's
nomination pending further investigation. One issue concerns Olson's
testimony at an April 5 hearing of the Judiciary Committee as to how he
came to represent Hale, a key source for the Spectator. Olson said he
couldn't remember how the contact was made and never mentioned David W.
Henderson, the Arkansas Project director. But Henderson last week told
the Post he was the person who introduced Hale to Olson.

Even if one assumes that Olson has a conveniently poor memory on key
matters relating to his involvement with the American Spectator and its
Arkansas Project, his behavior hardly suggests the stellar qualities
required of the chief representative of the US people before the
highest judicial body. Nor is this the first time Olson's credibility in
testimony before Congress was questioned. The Post article noted that, in
1986, Independent Counsel Alexia Morrison was appointed to investigate
whether Olson had provided misleading testimony to a congressional
committee when he worked at the Justice Department in 1983. Morrison
concluded that Olson's testimony was "disingenuous and misleading," but
that his statements were "literally true" and therefore he could not be
criminally prosecuted.

Pretty slippery for the "tenth member of the Supreme Court," but,
sadly, given the recent shenanigans of the Court's right-wing majority,
Olson should fit right in if he is ultimately confirmed.

Research assistance was provided by the Elections 2000 Fund of the Nation Institute.

When Anthony looked at the calendar, he could see that he had only two days to live. Where must your thoughts run when you taste your own death in your mouth?

Despite all the palaver, the denouement came quickly.

Can you top this? seems to be the theme of the escalating police scandal in Los Angeles.

In California, as in most states, any election aftermath involves a wan hunt for silver linings. As always, it's hard to find them.

The Control Equipment such as Voltage Regulators, Auto Transformers, Oil Circuit Breakers, Panel Board, etc., was designed by and supplied by General Electric Company.

The media coverage of the Clinton pardons has been so biased,
overblown and vituperative as to call into question the very purpose of
what currently passes as journalism. It is difficult to recall a more
partisan, one-sided hatchet job.

Surely, even the faintest sense of fairness would compel a comparison
of former President Clinton's actions with that of his predecessors and,
as Rep. Henry Waxman pointed out at a recent hearing to a largely
indifferent Washington press corps, Republican Presidents have more than
matched the outrages of Clinton.

Forget Gerald Ford's pardon of Richard M. Nixon, which, while
effectively short-circuiting an ongoing probe of possibly the most
egregious behavior of any US President, can be rationalized as a
healing gesture. Nixon had accomplished much, and he was by then a broken
man. We can also overlook Ronald Reagan's pardon of Yankee owner George
Steinbrenner, who had pleaded guilty to violating election laws.

But unforgivable is what former President George Bush did. He
protected himself--a former Reagan Administration official--in an ongoing
investigation when he pardoned Reagan's Defense secretary, Casper
Weinberger, and the rest of the Iran/contra gang of six.

At the time, Independent Counsel Lawrence E. Walsh bitterly charged
that "the Iran/contra cover-up, which has continued for more than six
years, has now been completed"--by presidential fiat. Walsh called it
"evidence of a conspiracy among the highest-ranking Reagan Administration
officials to lie to Congress and the American public" and said that, "in
light of President Bush's own misconduct," he was "gravely concerned"
about Bush's decision to pardon others.

Bush could easily have been said to have covered up his own potential
culpability--far short of anything Clinton has been accused of doing in
his pardon of Marc Rich or anyone else. Nor did the Bush Iran/contra
pardons pass the one-more-pardon-before-leaving-the-White-House "smell
test" so liberally applied to Clinton's pardons; the pardon came after
intensive lobbying by former Reagan aides and many last-minute White
House meetings.

As for pardoning drug dealers, so upsetting when ordered by Clinton,
again why no comparison with Bush's similar and arguably more offensive
pardon of that nature? Bush's pardon of Aslam Adam, a Pakistani heroin
trafficker serving a fifty-five-year sentence, would seem more startling than
Clinton's pardon of an LA Latino from a sentence one-fifth as long.

And, OK, let's talk about Marc Rich. Let's compare his pardon to that
of another financier, Armand Hammer. If Rich bought his pardon, he at
least felt the need to employ the precaution of funneling a contribution
through his ex-wife, as some charge. Hammer was considerably more
blatant. Not only had he pleaded guilty to the charge of making illegal
campaign contributions but also, when pardoned from that offense by Bush,
he forked over two gifts of $100,000 to the GOP as well as to Bush's
inaugural committee.

Those represented fresh contributions to an incoming administration
that could continue to bestow favors--not, as with Clinton, to a
soon-to-be ex-President's library. But if it is library contributions
that now so fascinate, why did House Government Reform Committee Chairman
Dan Burton turn down ranking Democrat Waxman's request that the records
of contributions to Republican Presidents' libraries also be subpoenaed?

And imagine the outcry if Clinton had pardoned an immigrant exile
accused of masterminding an airline bombing that cost the lives of seventy-three
people, including twenty-four teenage members of an Olympic fencing team. Yet
that is what George Bush did in acceding to the requests of his son, Jeb,
to pardon Orlando Bosch, gaining Jeb support in Miami's exile Cuban
community.

The most serious of Clinton's pardon excesses, that of former CIA
Director John Deutsch, does not rise to that level, but it is odd that it
has not been criticized. By pardoning Deutsch, Clinton ended an inquiry
into how sloppily top secrets are handled at the highest level. The
Clinton Administration had held former Los Alamos scientist Wen Ho Lee in
solitary confinement for mishandling data that wasn't even classified as
secret at the time. It was Lee and not Deutsch who deserved a pardon. But
that would have meant enduring criticism, and Clinton only does that for
well-connected people.

What Clinton did in catering to the wishes of his rich backers was
probably less motivated by library gifts than by misplaced compassion for
well-heeled but seedy people. That makes it all the more depressing, for
one would have hoped that someone who came up the hard way would know
that the filthy rich don't deserve special favors. But the rich pay the
piper, and no matter who's in the White House, Presidents do dance.

So it is, and so it always has been. The presidential pardon is a perk
of office, which has only the function of exonerating those the judicial
system would otherwise continue to condemn. It is a power begging to be
abused, but no more so by Clinton than many a Republican President who
preceded him.

The rogues in robes are on the move. US Supreme Court Chief
Justice William H. Rehnquist, the leader of the pack, and the rest of the
Court's right-wing majority have launched a judicial revolution that
usurps the power of Congress as it applies to civil rights law.

In its latest decision, the Court last week overruled Congress and
held that state governments can arbitrarily deny jobs to disabled people
without violating the equal protection clause of the Constitution. The
Court's decision to gut the Americans with Disabilities Act, passed in
1990 by a huge bipartisan majority in Congress and signed into law by
former President Bush, is yet another assault on representative
democracy. Not content with short-circuiting the presidential election,
the Court has now decided that it, and not Congress, shall make the laws.

When passed more than a decade ago, the only significant opposition to
the ADA came from a band of ultra-rightists led by Jesse Helms (R-N.C.),
who mustered just seven other ultra-conservative Senate votes.
Unfortunately, the Senate's far right is now well-represented on the
Court, and the Justices did what Helms failed to do.

The ADA was the most significant civil rights legislation in decades,
allowing the tens of millions of Americans with disabilities access to
jobs, schools and buildings. The legislation was inspired by those, such
as wounded war hero Sen. Bob Dole (R-Kan.), who believed that the
barriers to the full participation of the disabled in our public life
were a clear violation of their civil rights.

In the recent case before the court, a registered nurse at the
University of Alabama hospital was demoted upon returning to work after
breast cancer treatment. Rehnquist, in helping to overrule a federal
Court of Appeals decision that the ADA prohibited such discrimination,
put cost accounting above the right to access when he wrote that it would
be "entirely rational and therefore constitutional for a state employer
to conserve scarce financial resources by hiring employees who are able
to use existing facilities."

Don't be surprised if the Court next rules that it is not necessary to
provide ramps or other facilities to wheelchair-bound people seeking
access to public buildings, or Braille numbers to aid the blind in
elevators. The Court has already gutted barriers to age discrimination in
employment.

What is at issue is the interpretation of the Fourteenth Amendment to the
Constitution extending the protection of universal civil rights to all
Americans regardless of the state in which they reside. The Fourteenth
Amendment--originally addressing the issue of racial
discrimination--explicitly empowers Congress to pass "appropriate
legislation" needed to guarantee equal protection of the law for all.

In striking down key provisions of the ADA, Rehnquist dealt a body
blow to the separation of powers, which grants to Congress sole authority
to pass federal law. Rehnquist said that the law in question was
ill-conceived because he didn't agree with Congress's evaluation of
evidence on the subject, saying it was based on "unexamined, anecdotal
accounts" that did not qualify as "legislative findings."

Given that the ADA was one of the more carefully researched pieces of
legislation ever passed by Congress, there's no reason to believe that
the Court won't throw out any law it doesn't agree with. As Justice
Stephen G. Breyer pointed out in his dissent, the ADA had been the
subject of a dozen Congressional hearings. Breyer attached a thirty-nine-page list prepared for Congress of state-by-state examples of official acts of
discrimination against the disabled. This is not enough? And, anyway,
when it suits its political purpose, the Court's right-wing majority is
quick to rule the opposite, insisting that Congress, not the courts, has
sole power to craft federal law.

Just this past weekend, Justice Antonin Scalia claimed in a speech
that those who believe that the Constitution is an evolving or living
document want to use judicial interpretation to make law. He taunted:
"You want a right to abortion? Pass a law. That's flexibility."

Yet when Congress did pass a law extending the scope of civil rights
protection to the disabled, Scalia didn't like it. He joined the 5-4
opinion overturning it.

Just a couple of questions: If the life of every fetus is sacred, why
would we want to deny that fetus, if born with disabling birth defects,
full civil rights? If one is denied a state job solely because he or she
must use a wheelchair, is that not a clear violation of the equal
protection of the laws called for in the Fourteenth Amendment?

Hypocritically, the same five Justices who struck down the ADA as a
violation of states' rights were all too willing to toss out the issue of
states' rights on the Florida election count. The lesson then and now is
that the current majority of the US Supreme Court seeks to usurp the
power of the states and the Congress when--and only when--it suits its
fiercely held ideological agenda. Sadly, civil rights are the prime
target of that agenda.

It may be legal, but it's still a coup d'état. The nomination of
Theodore B. Olson to be solicitor general, a position of such influence
that it is often referred to as "the 10th member of the Supreme Court,"
affirms that President Bush has turned the US judiciary over to the far
right.

We can't say we weren't warned when Bush, during the campaign, named
Clarence Thomas and Antonin Scalia as his role models for future judicial
appointments. They returned the compliment by obediently bowing to the
arguments of Bush's lawyer, Olson, that abruptly stopped the vote
counting in Florida, thus handing the election to Bush.

Once in office, Bush quickly appointed three of Thomas's closest
personal and ideological buddies to head the judicial branch of the US
government. Newly minted Atty. Gen. John Ashcroft made that point when he
rushed off to Thomas's chambers to be sworn in out of the public eye. Then
came the appointment of Larry Thompson, who had defended Thomas in his
stormy confirmation hearings, as deputy attorney general. Then the pièce
de résistance: Olson.

While newspaper editorials praised the Bush Administration for its
moderate style, the often mute Thomas emerged from the shadows to
celebrate the far right's triumph. At a conservative dinner soiree,
Thomas issued a militant call to arms decrying "an overemphasis on
civility." Indeed, instead of being civil to those with whom he
disagrees, we had the unseemly spectacle of a Supreme Court Justice
calling for ideological war: "The war in which we are engaged is
cultural, not civil." He chided moderates in his own party saying he was
"deeply concerned because too many [conservatives] show timidity today
precisely when courage is demanded."

Surely he wasn't referring to the President, who has given the GOP
right wing the prize it really wanted: control of the judiciary. Clearly,
the intention is to use the powers of the state to pursue the right's
social agenda while virtually dismantling the federal government as a
force for social justice.

The choice of Olson as solicitor general seals the right wing's
seizure of power. But it could not have happened without the denigration
of the Clinton Administration and its threat to marginalize the right by
moving politics back to the center. Key to the effort to destroy Clinton
was this same Olson, who will now represent the US government in cases
involving affirmative action, the environment and women's rights. Guess
what side of those issues Olson has represented in the past? Olson, a
member of the board of directors and legal counsel for the extreme right
American Spectator magazine, was a principal figure in smearing Clinton
even before the man was elected to his first term. The magazine used $2.4
million provided by far-right billionaire Richard Mellon Scaife to dig up
dirt on Clinton in what started as Troopergate and ended up propelling
the Paula Jones case to the status of an impeachable offense. It was this
same Olson, a close friend of Kenneth Starr, who coached Jones' attorneys
before their successful request to the Supreme Court to allow a civil
suit to be heard against a sitting President.

Olson is one of those family values conservatives who evidently
believes that only wealthy women like his lawyer-talk show pundit third
wife should work. He argued unsuccessfully before the Supreme Court
against a California law that protected the jobs of women who took four
months of unpaid disability leave for pregnancy, terming it "destructive
to women."

Olson had another major failure when in 1996 he argued against women
being admitted to the publicly financed all-male Virginia Military
Institute on the grounds that the school's character would be
fundamentally altered. To which Justice Stephen Breyer tartly replied,
"So what?"

One of Olson's unsavory victories came when he got a federal appeals
court to rule that the affirmative action program for admissions at the
University of Texas was unconstitutional. An opponent of environmental
protection, Olson has gone to court to get sections of the Endangered
Species Act declared unconstitutional.

Now Olson and the other friends of Thomas are in a position to weigh
in heavily on future nominations to the Court, and their own names will
surely head the list. These are lawyers who have devoted not only their
professional lives but their personal political activity to reshaping the
Court as an activist vehicle to turn back the clock on the rights of
women, minorities and working people as well as to leave the environment
open to corporate exploitation.

By selecting this triumvirate to head the Justice Department, Bush has
sent the strongest of signals as to his intent to use the Court to
advance the far right's agenda. So much for moderation.