WASHINGTON - Theodore B. Olson's role as the politically savvy attorney who successfully argued George W. Bush's case before the Supreme Court in the contested presidential election last year may have helped him land the nomination for U.S. solicitor general. But the conservative lawyer's role as a Clinton antagonist during the Whitewater-Lewinsky years has turned that nomination into a battle.
Last week, the Senate Judiciary Committee postponed until tomorrow a vote on Olson's nomination after doubts were cast on his account of his role in a conservative magazine's effort to uncover material damaging to Bill Clinton.
And while Democrats are still pushing for a bipartisan investigation into Olson's links to the American Spectator magazine's so-called "Arkansas Project," the committee's chairman, Sen. Orrin G. Hatch, a Utah Republican, insisted yesterday that he would not postpone the vote again.
In a letter to the senior committee Democrat, Sen. Patrick J. Leahy of Vermont, Hatch said, "There is no credible evidence that Mr. Olson has been anything less than forthright and truthful, and that no further delays are warranted."
Hatch added that he was concerned about a perception that "the delay and partisan rancor on the Judiciary Committee concerning this nomination is an effort to seek retribution for the results of the Supreme Court's decision in Bush vs. Gore, which Mr. Olson skillfully and successfully argued."
But Leahy complained that legitimate questions remained about "the veracity and forthrightness of Mr. Olson's responses to questions from the committee." Leahy said his requests for documents from the American Spectator and from Olson himself that might corroborate Olson's version of events had been rebuffed.
A tie vote in the committee, which is evenly split along party lines, would send the nomination to the full Senate for confirmation, and no Republicans on the panel have indicated that they will oppose the nomination. But Democrats, angered by Hatch's refusal to allow any further examination of Olson's testimony, could bar the nomination from a vote by engaging in a committee filibuster.
"This is a politically charged nomination and has been a politically charged nomination from the start," one Democratic aide said yesterday. "The standards are going to be high."
The Arkansas Project was a $2.4 million investigative effort by the monthly magazine financed by foundations run by Richard Mellon Scaife, a conservative billionaire. From 1993 to 1998, the project sought to uncover scandals and possible criminality by Clinton and his wife, Hillary Rodham Clinton, during the former president's years as governor of Arkansas.
To Clinton allies, the Arkansas Project was Exhibit A in what they saw as an orchestrated drive by conservatives to topple the president.
Olson was a lawyer for the American Spectator and in 1996 joined its board of directors. When asked at his confirmation hearing last month about his role in the Arkansas Project, Olson said, "I was not involved in the project, in its origin or its management."
In written answers to questions after his testimony, Olson acknowledged that he had had social contacts with the magazine's editors and writers when Clinton-related articles were being discussed.
But he said, "I was not involved in organizing, supervising or managing the conduct of those efforts." Olson said he did not recall "giving any advice concerning the conduct of the project or its origins or management."
One former Spectator staff writer, David Brock, has disputed that account. Brock said Olson was directly involved in the project and attended meetings at the home of the magazine's editor-in-chief to discuss possible articles. Others at the magazine, however, have said that Olson's testimony was accurate.
American Spectator documents show payments of more than $14,000 to Olson's law firm, Gibson, Dunn & Crutcher, that was attributed to the project in 1994. Olson received some of that money for an article he wrote for the magazine, under a pseudonym, enumerating the laws the Clintons might have violated if the allegations chronicled in the magazine's articles could be proved. He concluded that Clinton could face up to 178 years in prison and Hillary Clinton, 47 years.
Douglas Cox, Olson's law partner and spokesman, says the dispute between Olson and Senate Democrats appears to be nothing more than a "silly word game."
Cox says Olson has never denied that he wrote for and did legal work for the Spectator in 1994 - and that he knew the magazine was pursuing and publishing investigative reports on Clinton scandals.
But Cox said Olson understood the Arkansas Project to refer to just one small part of the magazine's Clinton-related effort: the fact gathering by investigators in Arkansas that was bankrolled by Scaife's foundations and that Olson says he had no role in.
"The whole dispute is over whether Ted should have labeled those earlier activities - his legal work and his writing [for the magazine] - as part of the 'Arkansas Project,'" Cox says, "which seems to me pretty gosh darn ridiculous."
But the Judiciary Committee Democrats argue that the panel should interview more witnesses and gather documents to compare the work Olson did for the magazine with his sworn statements that played down his role in the Arkansas Project.
In a letter to Olson, Leahy said he was "troubled" by the nominee's responses. "The credibility of the person appointed to be the solicitor general is of paramount importance," Leahy wrote.
The solicitor general's office decides which cases the federal government should pursue to the Supreme Court and then argues those cases on behalf of the United States.
In some ways, it's not surprising that Olson's confirmation journey would be a bumpy one. A leading conservative legal activist, he has a history of being on the front lines in partisan battles, from his 1988 Supreme Court challenge of the independent counsel statute - while he was the subject of an independent counsel investigation - all the way up to his representation in December of the man he hopes will soon be his top boss.
Throughout the Clinton years, he was not as visible as his wife, Barbara Olson, a former federal prosecutor and congressional investigator of Clinton's who became a TV pundit and wrote a critical book about Hillary Clinton called "Hell to Pay." But behind the scenes, Olson assisted not only the American Spectator but also a number of Clinton's other foes.
Olson helped prepare Paula Corbin Jones' lawyers for their oral argument before the Supreme Court in 1997. He is a close friend and former Reagan administration colleague of Kenneth Starr, the Whitewater independent counsel. And within the Whitewater inquiry, Olson represented David Hale, the disgraced former Arkansas judge who pleaded guilty to two felonies and became Starr's top witness against Clinton.
Olson's confirmation struggle is not the first time he has faced questions about his testimony to Congress. Allegations that he misled Congress about an environmental program as an assistant attorney general in the Reagan administration led to an independent counsel investigation.
The prosecutor, Alexia Morrison, ultimately decided not to seek an indictment of Olson, but not before Olson had challenged the constitutionality of the independent counsel law all the way up to the Supreme Court, where he lost, 7-1.