The fundamental question Sen. Pat Leahy, D-Vt., is asking his fellow members of the Senate Judiciary Committee -- the "legitimate issues" even committee chairman Sen. Orrin Hatch, R-Utah, acknowledged when Ted Olson's confirmation vote was delayed a week on Thursday -- is whether Olson can meet the standard for honesty, integrity and full disclosure needed to be solicitor general.
In his May 4 letter to Olson, Leahy didn't mince words: "The credibility of the person appointed to be the Solicitor General is of paramount importance.
"When arguing in front of the Supreme Court on behalf of the United States Government," Leahy writes, "the Solicitor General is expected to come forward with both the strengths and the weaknesses of the case, to inform the Court of things it might not otherwise know, and to be honest in all his or her dealings with the Court. I expect that same responsiveness and cooperation from nominees before this Committee."
Olson has certainly given the committee plenty of reasons to wonder whether he's up to the task.
Of paramount concern to the Judiciary Committee now appears to be what Leahy regards as Olson's "lack of responsiveness" to questions about Olson's role in an investigation into the Arkansas-era lives of Bill and Hillary Clinton, the so-called "Arkansas Project." Another trails back to the mid-1980s, when an independent counsel was appointed to investigate whether Olson misled Congress.
And there's a third reason, which can be found in Olson's most recent sojourn as then-candidate George W. Bush's lead federal attorney during the Florida recount mess.
Because while Olson has made a name for himself as a successful attorney and a beloved member of the Washington right, it's certainly an open question whether he's capable of the integrity needed for a job first held by Kentucky's Benjamin Bristow, who made a name for himself in the 1800s by aggressively prosecuting members of the Ku Klux Klan.
This is not escaping the notice of the Senate Judiciary Committee, a senior Democratic Senate aide says. "This seems to be a pattern with this guy," the aide said.
An example can be seen in Olson's argument before Judge Donald Middlebrooks in the District Court for the Southern District of Florida. This was the first lawsuit filed by either of the principals -- a request for a restraining order to stop the four counties that were beginning the recount process -- in what became the U.S. Supreme Court case Bush vs. Gore. In winning that case, Olson delivered the presidency to the man who is now trying to appoint him solicitor general.
During those Nov. 13 arguments, attorney Bruce Rogow, representing the Palm Beach County canvassing board, was stunned when he heard Olson make an argument before Middlebrooks that he calls "disingenuous." At issue was the vagueness of the Florida recount standards, which instructed canvassing boards to count votes where "the intent of the voter" could be ascertained. Olson argued that it was "crucial that votes in presidential elections be counted according to consistent uniform and objective standards."
Rogow and Harvard law professor Lawrence Tribe, arguing on behalf of Gore, claimed there was nothing unreasonable about the Florida standard, that Bush himself, in 1997, had signed a similarly vague hand recount statute into law. Texas Election Code, Section 127.130, said that a hand recounted punch card ballot can be counted only when: 1) at least two corners of the chad are detached; 2) light is visible through the hole; 3) an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote; or 4) the chad reflects by other means a clearly ascertainable intent of the voter to vote.
In other words, Texas also had the vague, subjective "intent of the voter" law. When it was Olson's turn to speak, however, he misrepresented the Texas law.
"We heard references to the manual recount in Texas," Olson said. "The Texas provision, which has been mentioned for obvious reasons, has a list of very specific standards."
Olson then went into the standards: "The ballot may not -- and this is in the statute to control the discretion of the official -- the ballot may not be counted unless at least two corners of the chad are detached, light is visible through the hole, an indentation on the chad in the stylus, etc., etc., I'm not going to go through all of the details with respect to it. But that is an effort by the state to articulate clearly standards by which individual judgment can be exercised in very specific limited situations."
Olson's "etc., etc.," glossed over points 3 and 4 -- with their references to "ascertainable intent" -- that make the Texas law as vague as Florida law. Olson made this remark in his closing arguments, at a point in the case when Tribe and Rogow didn't have the opportunity to rebut and point out what both lawyers later commented was a surprisingly misleading argument for Olson to make before a federal judge. It was also unnecessary, since Texas law was not particularly relevant to this case.
Olson, of course, ultimately won the war, though he lost this little skirmish, with Middlebrooks denying Olson's request for a restraining order. But now, his tactics involved in that particular case may merit more scrutiny than they received during the fevered post-election campaign in Florida.