Solicitor General Theodore Olson is joining the brigade of administration officials that are leaving office, today being his last day as well as that of the head of the CIA. It is perhaps fitting that he used his last day to talk the Federalist Society, a conservative legal group with more than usual influence in legal and judicial circles today.
After all, though he downplayed it during his confirmation hearings in a way some consider almost perjurious, Olson (along with his wife, whose last book dealt with the evils of the Clintons) was involved with the attempt at removing President Clinton from office. Likewise, he was the primary advocate for Gov. Bush in Bush v. Gore. Imagine if every case a lawyer argued truly put his very job on the line!
His remarks addressed the losses the government suffered in the enemy detainee cases. It is somewhat interesting that the Federalist Society, involved in the weakening of executive power in the Clinton years, was so concerned about the issue. Olson argued the Supreme Court was "keenly sensitive that the court's human rights precedents have not, in retrospect, been perceived as the court's finest hours." The fact that Olson's immediate successor, Paul Clement, was allowed to tell the Court that the government did not perform acts akin to torture was not a fine hour either.
General Olson noted the importance of Justice Stevens. In the Guantanamo Bay Case, he suggested Justice Stevens "ingeniously crafted the court's dramatic shift in habeas corpus jurisdiction for alien detainees who have never set foot in the United States." I would suggest that it is Olson himself who was "ingenious" when arguing that a base controlled by the U.S. for around one hundred years was not really under the Court's jurisdiction.
Olson also offered that "[t]he justices are human, and they may have been affected," by the reports of abuses at Abu Ghraib prison. Perhaps, but they also are judges, and the reports also might have affected them in that respect as well, as it suggested the need for independent safeguards.
Still, he is not alone in noting the sway of Justice Stevens as suggested by some talk of a "Stevens Court." Linda Greenhouse also spoke of Chief Justice Rehnquist losing his court, which might be an exaggeration, but perhaps not too much of one this year. It is interesting in part because for years people have being arguing Justice Stevens is a maverick, and thus had less influence than his brains and abilities suggest he could. Better late than never, perhaps. Viva la Stevens! Lol.
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Other Judicial News: A few months ago, President Bush used a short recess to install two controversial judges that the Senate refused to confirm. He later agreed not to do so again, after Senate Democrats held up twenty five other nominees. The use of the "Recess Appointment Clause" in this fashion is controversial for at least two reasons: (1) It is likely the clause was meant to deal with the time between sessions, not short breaks within sessions (2) Its application to the appointment of judges sets up the possibility of limited judicial terms, since recess appointments expire if confirmation never occurs.
This is why such action was so rare in recent years and is not just troubling because of the particular executive involved. It also is just one of many examples of how this administration acts in a troubling way and opposition is (wrongly) seen as just politically motivated. Briefs opposing the practice was submitted in a lawsuit involving Judge Pryor (the other federal judge involved was Judge Pickering); see here and here.