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Ted Olson

Second Interview with the Former U.S. Assistant Attorney General

Ted Olson is a lawyer who served as U.S. assistant attorney general in the Reagan administration and solicitor general under George W. Bush. He has argued high-profile cases in front of the Supreme Court, including Bush v. Gore and Citizens United v. Federal Election Commission.

This interview was conducted by FRONTLINE’s Jim Gilmore on November 5, 2020. It has been edited for clarity and length. You can see an earlier interview with Ted Olson here.

This interview appears in:

Supreme Revenge

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The Death of Ruth Bader Ginsburg

Let's start off with Justice Ruth Bader Ginsburg, the significance of her death.This was a—not just a normal seat in the Supreme Court.This was a renowned one, because of how famous she became.Talk a little bit about the significance and how it was handled.Surprising that [Mitch] McConnell moved forward quickly?

Well, I will just say this about Justice Ginsburg.I have had, throughout all the time that I've known her—and I've known her for a long time, since she was on the Court of Appeals—enormous respect for her, for her courage, for her intelligence, for her style, for all of the things that she was able to do.She was a giant on the Supreme Court and a giant in our American life.And I think that all of us, if we have a chance to do so, think about what great contributions she made to America and to the justice system.Was it surprising that the president and the Senate moved so quickly?Not surprising, given the fact that there was an election coming up.No one knew how that election was going to come out.There was an opportunity to make the appointment, and there was an opportunity to make the confirmation process work.These are political decisions by political people, and it shouldn't be surprising that they make them for political reasons.

McConnell’s Focus on the Courts

… It's also led to the fulfillment of a goal that McConnell had had, really, for three decades.How important to understand is that, and how important was it to McConnell to accomplish that goal?

Well, I don't recall when he first started talking about that, but the idea of changing the character of the court was something that was in his mind for a long time.It was—he's a very determined individual.When he puts his mind to something, it's just not possible to swerve him one way or the other.He sets his mind to doing something, and he's going to do it.So it wasn't terribly surprising that, when he had an opportunity—he had three opportunities within three and a half years to put three individuals on the Supreme Court.Of course the president had to nominate those individuals, but I'm sure he had a role in suggesting who those individuals might be.But there was really nothing that was going to stop him from fulfilling that objective of obtaining the Senate confirmation to those nominations.

Of course something that comes up quite often when talking about this is that McConnell's actions on pushing forward Justice [Amy Coney] Barrett happened at a—when thinking back on—to the past and how he dealt with the [Merrick] Garland nomination and stopping that, even though the election was nine months away, compared to now, this time where it was really only a month away, some of the Democrats, some of the people that opposed it, of course, called it hypocritical.What do you—how do you view it? What do you call it?

Well, I don't call it hypocritical or not hypocritical.I'm not making a judgment about that.He did it because he could.He controlled the Senate.His position was the Senate has the right to approve, advise, and consent to a nomination.We were elected to fulfill that duty.We chose in the Garland situation not to move forward; that is the role and responsibility and the right and the prerogative of the United States Senate.By the same token, he felt that we were elected to do this; we're in a position to do it; there was a nomination before us.We had the strength, the prerogative, the responsibility to move forward to it.He didn't regard it as hypocritical; he regarded it as consistent with the responsibility of the Senate at the time of the Garland nomination and the Senate at the time of the Barrett nomination.

Looking at his personality, he's got a very strong personality.He's been very, very successful in what he's done.But when his critics will call him ruthless in making decisions in the way he did in this situation, it doesn't seem to faze him whatsoever.

It wouldn't faze a Senator McConnell to be called ruthless or determined or whatever adjectives or labels people might put on his behavior.He had the—he felt that he had the responsibility.He had the authority.He was the leader of the Senate.He had an opportunity to move forward, and he was going to do it.And name calling was not going to faze him.And it never has, and it never will.

Supreme Court Nominations Since Bork

… Since Bork, it's fascinating that Amy Coney Barrett has had more of a clear-cut conservative record, not in the hearing so much, but in things that she's said or written in the past.… Is this, in some ways, sort of a [Robert] Bork redux, where someone that has those credentials, that is respected for being a very conservative judge, gets the right to take this to the Supreme Court, and the big difference being that—this time around, compared to Bork, the GOP really had all the cards?

Well, that's a compound question.Let me answer it this way.Yes, Judge Barrett was a conservative individual.She clerked for Justice [Antonin] Scalia.Before that, she clerked for Judge [Laurence] Silberman on the D.C. Circuit.He is also a conservative individual, as was Justice Scalia, of course.But Justice Ginsburg had a very, very strong and very liberal record.I mean, she was a warrior; she was an advocate.She wrote and she spoke her mind.So if you just compare the two, those two individuals, they each had strong records in their own right.They had strong views about the judicial responsibility and how things ought to work in this country under the Constitution.So I wouldn't say that there was too much difference.I wouldn't go back to Bork.The fact is that since Bork, most of the presidents have tried to find someone who they believe would reflect their particular point of view on the Supreme Court.That's why judges going onto the Supreme Court are now all coming—essentially all coming from Courts of Appeals, because judges on Courts of Appeals, federal Courts of Appeals, have a record on federal constitutional and federal statutory questions, so their president can have some idea as to how those justices might behave or react once they get to the Supreme Court.Justices are appointed in their 50s now.They might serve until they're in their 80s.That's 30 years.Presidents think about, if I'm going to make a nomination to the Supreme Court, I'm going to appoint someone who's going to be on there for a long time that will have similar views to my own.

Just to push this one more time, though, for conservatives—certainly McConnell talks about it—is that there was a good reason to be aggrieved on the way that Bork was handled and then [Clarence] Thomas was handled.And here you have now three confirmations of conservatives.There must be some feeling that Amy Coney Barrett was in some ways finally someone getting on the court that they'd been fighting for for many years.

Well, I think that the—I don't like to disagree with you, but I think that Justice [Neil] Gorsuch and Justice [Brett] Kavanaugh were individuals that—the senators and the president who nominated them were strong, firm, conservative individuals.And their record—Justice Kavanaugh had been on the D.C. Circuit; Justice Gorsuch had been on the 10th Circuit.They each had fairly strong, conservative, originalist records on the court.Justice Barrett, I don't think, is a whole lot different; she'd only been on the 7th Circuit for a couple of years.She'd been a law professor.But she had clerked for Justice Scalia and Judge Silberman, so they had a fairly clear idea of what their record was.But the same is true with respect to Gorsuch and Kavanaugh.

Please, do not fear disagreeing with me.

I'll try to stifle the impulse just to give in.

Talking about the hearings, 16 days after the nomination we get to the hearings, and it's fascinating that Senator [Lindsey] Graham opens it up with a statement where he basically says that they're there to confirm Barrett, and basically he agrees with the fact that it will be on a party-line vote.The question is, what does this say about the bipartisan process that we've always thought of during judicial committee hearings?And this is what the Democrats would say, is that the process of advice and consent, which they're called to be involved in, basically was shown to be dead here.

Well, it was shown to be dead in the Judge Bork confirmation process.That was a highly partisan hearing.And Judge Bork, who I knew, and was close to, and in my opinion was one of the most qualified persons to ever be on the Supreme Court—he had written books; he had taught in law schools; he'd served on the D.C. Circuit—and in my opinion, he was an extremely well-qualified person.But he was savaged during the confirmation process.The Democrats really don't have any right to complain about this.The strongest number of negative votes against a nominee to the Supreme Court have come against nominees of Republican presidents.And Gorsuch, Kavanaugh, and you go back to even justices before that.There was only three votes, negative votes in the Senate, against Justice Ginsburg.I think it was only three.And there was only nine, I think, against Justice Breyer.But after that, with respect to the Republican nominees and in the wake of the Thomas and the Bork confirmation hearings, the votes against Republican presidential nominees have been fierce.Kavanaugh just made it, and Gorsuch, it was very, very few extra votes for him either.

So Barrett takes the bench eight days before an election.At that point when she arrived at the Supreme Court, 60 million people had already voted.The question is, can we in any way divorce this nomination, this process, from politics?

Well, I think that what we have to recognize is that we have nominated extremely highly qualified individuals to the Supreme Court.I include President Obama's nominations of Elena Kagan and Justice Sonia Sotomayor.They were very, very highly qualified persons.Justices Kavanaugh and Gorsuch and Barrett were very, very highly qualified persons.If you know these justices, although their backgrounds might tell you how they're likely to vote, they are independent.Once they are confirmed to the Supreme Court, they are individuals, and they are individual judges in their own right.So you can think of the Supreme Court as nine justices, but it's nine individual Supreme Courts sitting there, and they will do what they think is right.And I think that yes, it's very difficult to divorce the politics from it, given the political nature of the confirmation proceedings.

But these justices will surprise you from time to time.Chief Justice Roberts has surprised the conservatives several times since he took the court.… And other justices—Justice Gorsuch surprised the conservatives just earlier this year, in a case involving discrimination against gays and lesbians.So justices will surprise individuals, and they will turn out more and more, as time goes by during their tenure, to be very independent, hopefully.All of those individuals were extremely well qualified.We put them through a sort of a gauntlet, when they have to go through this confirmation process, which is not a pleasant process.None of us would really like to go through something like that, because no matter how qualified we are, we're going to be, in a sense, verbally terrorized in the confirmation process, and our reputations will be—there's attempts to damage our reputations by one side or the other.Both sides are guilty of this.It is not a pleasant process.

But it's important to understand that we've only had about 115 justices on the Supreme Court; we've only had 17 chief justices on the Supreme Court, and they've all turned out to be individuals and independent.

McConnell’s Focus on the Courts

During the film, we'll probably use a statement by Senator McConnell when he's on the floor in the Senate, where he said—and I wanted to ask your thoughts on it, the significance of it.He says to his fellow Republicans, a legislator sees their accomplishments as ephemeral, and he talks about how it's not nearly as significant as securing the courts, which will be for generations.What's the significance of that?What's your thoughts on that?

Well, the significance is that legislation can be changed from one year to the next.Senators and representatives in the House can revise legislation, amend legislation, repeal legislation.But once the Supreme Court makes a decision, if it's a constitutional decision, it can only be changed by the justices themselves or an amendment to the Constitution.Both of those things are unusual and difficult.Justices may change their position with respect to interpretations of a statute, but that happens relatively rarely, too.So if Senator McConnell says this is—we're talking about individuals who will make decisions that may last for generations—he's absolutely right.It's just simply a statement of fact.

… One of the other things that we talk about, McConnell made a statement in an interview.It was very surprising for him, in some ways, to sort of blow his own horn.But he says, he crowed—he sort of defined that no other majority leader since LBJ had done something as significant as what he has done with the courts.From your point of view, how important is it what McConnell has achieved here?

Well, I think that Senator—Majority Leader McConnell is relatively correct about the importance of the decisions that he has made or he has led to help the Senate make, with respect to the permanence and significance in American society of those decisions.Now, we've had some very, very important majority leaders over history.Lyndon Johnson was of course one of them.But he's—but when Senator McConnell says something like that, he is certainly cognizant of the significance of appointing or affirming what the—confirming what the Senate does, a Supreme Court nominee.It is something that is very significant and lasts for a long period of time.

The Court and a Biden Administration

… If Biden, in fact—let's assume that he has won the presidency.Understanding his history of being chairman of judiciary through the Bork hearings, through the Thomas hearings and such, he now inherits a 6-3 conservative court.How do you view that?Is this in some ways his worst nightmare?How ironic is it that he finds himself in this position?

Well, it is historically significant that individual presidents have frequently been unhappy with Supreme Court decisions or the bodies of the Supreme—members of the Supreme Court that they face.Franklin Roosevelt, as you know, as everyone knows from their history books, was furious with the Supreme Court, the "nine old men," so much that he recommended changing the composition of the court so he could get more justices that would be more favorable to him.President Eisenhower expressed disappointment in his appointment of Earl Warren and Justice [William J.] Brennan, based upon the decisions they made.President Obama was disappointed for time to time with Supreme Court decisions.He complained in his State of the Union address about one of the Supreme Court decisions.I can't think of another—of any president who has not been unhappy from time to time with Supreme Court decisions.The thing is, the Supreme Court makes their decisions based upon the law; presidents are expected—or presidents expect that there will be—their will be somehow fulfilled in the political process.But once it gets to the judiciary, they are occasionally going to be disappointed.

A President Biden, if that is the president that we are inaugurating in January of the coming year, is definitely going to be disappointed, but he's going to be disappointed in the first instance because he's probably going to be dealing with a divided Congress, so it's not going to come out the way he wants with respect to the legislative arena, either.

… So talk about specifically in this situation what Biden should expect.How much power will the court have over Biden in some ways?Certainly with executive orders, the fights that end up in the courts, talk a little bit about the power of the court and how it will affect Biden walking into the role of president.

… President Biden is probably going to be disappointed from time to time with respect to decisions by the Supreme Court that are inconsistent with what he would like it to be.The cases will come more quickly to the Supreme Court if it's a President Biden executive order, with respect to immigration or tariffs or things involving other matters.President Obama famously said, "I have the pen, and I can make my signature on executive orders."President Trump has done that in spades.I would expect that President Biden, if he is frustrated by a divided Congress, will turn to executive orders to accomplish things that he would like to get accomplished, and those cases might get to the Supreme Court relatively quickly.And he may be disappointed.He might not be disappointed.The Supreme Court could affirm his decisions, because this Supreme Court, a conservative Supreme Court, is likely to be somewhat permissive or somewhat deferential to the exercise of executive power by the president, and that would include President Biden.He may be a beneficiary of that.

What other issues do you see the court leaving a strong imprint on, this court coming up?How would you view how significant it will be and what kind of imprint they could make?

Well, the Supreme Court decides cases that come to it.The Supreme Court can't select cases to bring before it.So in a sense, the Supreme Court is responding to litigation that takes place in our lower courts, including state Supreme Courts, from time to time.So a lot of it depends upon what kind of cases.We know that there will be cases involving criminal law, the rights of the accused of crimes.We know because it happens almost every term.Cases involving freedom of religion or the free exercise of religion or state involvement in religious activities: There are cases before the Supreme Court today involving that.There will be cases involving individual liberty, the right to vote.Civil rights are cases that are going to come before the Supreme Court: the right to vote, arguments about suppression of the right to vote.All of those things are going to come before the Supreme Court.Plus, there is the usual variety of cases involving federal statutes: antitrust, patent, energy, the climate and things of that nature.So you really can't put a constraint on what's going to happen in the Supreme Court, because a lot of it is fed to the Supreme Court.They decide cases and controversies, but those cases and controversies have to come to them first.They cannot reach out and decide a social issue on their own.

But as a 6-3 court, what do you envision the effect that they will have and the imprint on the general direction of the way the country has been going?

Well, I think that a 6-3 court, this 6-3 court is going to give a great deal of deference to what legislators decide when they vote for a piece of legislation: What do the words mean?Now, many times legislators don't like to make tough decisions, because a decision that is made by a member of Congress can alienate half the population every single time.So Congress frequently uses very vague, subjective terms when it puts legislation together, and that frequently requires the justices to decide, well, what did they mean?So this—these justices, the conservative members of this court, are going to require that the members of Congress put into words what they mean and not get away with slippery words like "fairness" and things like that, because those are open invitations for justices to just decide things themselves.I think this court will say: "You've got to be more specific as to what you mean.We're going to interpret the language that you passed, not what someone thinks was your subjective intent when you passed that legislation."

What do you think of the reality that the majority leader, McConnell, will again take that position in the coming years?What role will he play on Biden judicial nominations, do you believe?

Well, I think that—I think that he may be more inclined to give a President Biden judicial nominees a hearing and move them forward.This last four years or so, the Democratic members of the Senate have resisted almost every nominee.They have not been successful, but they—they've required cloture votes on almost every judicial nominee that's come to them from President Trump.I have a feeling that … Majority Leader McConnell will give those nominees hearings, and I hope fair hearings.And if they're well-qualified individuals, they will be confirmed.

Politicization of the Court

One of the big questions we have is, McConnell has been focused for decades on the courts, on the federal courts.The Democrats during the hearings basically vowed revenge for what they saw as the rule of "because we can," as it was defined.This political war that sort of has taken place in the courts over the period of time that we're talking about, is that just the beginning?Where do we go from here?

Well, we can't go much lower.I would hope, because I have a great faith in the judicial branch of our government, and because I believe that the politicization of that process, of the judicial nomination and confirmation process, has been damaging to the judiciary, because most of the people that are nominated to our courts—our District Courts, our appeals courts and the Supreme Court—have been individuals, men and women of good character, of good experience, that have—they've come from our finest legal academies.And we—our judiciary is the envy of the world.It is an honest judiciary.We don't have corruption in our judiciary.And when we nominate well-qualified individuals to our courts, they should be treated respectfully.And if they are qualified to be a judge, we should respect and accept judges of—from either president, if they meet those qualifications.I would hope that … the temper of the process is diminished somewhat so that judges, potential judges, do not have to go through an unpleasant gauntlet every time someone is appointed to a judicial post.

The Court and the Election

… This is something you're in the midst of right now.The significance of President Trump's threats to take the election to court basically—to stop the votes, etc., the things that are coming out right now—how this situation compares to 2000, for instance.Could 2000 and the complicated situation we got ourselves in happen again?

Well, what happened in 2000, remember, was one state.We were fighting at that time over judicial changes to the rules with respect to the counting of ballots in one state.One side was arguing: Count every vote.The other side was arguing: Well, yes, but don't change the rules in the midst of the vote-counting process.The rules should be fixed and objective.Here we have potential litigation, or actual litigation, all over the United States.And we have judges, state court judges changing the time when votes may be counted, changing the rules with respect to whether there has to be a postmark or whether there's an appropriate signature on a mail-in ballot.We have all these kinds of cases coming from state court judges, from federal judges, from gubernatorial decisions, from election official changes.And so you are going to have some disputes in a close election like this about whether or not those changes are legitimate, or whether or not they're appropriately made by the body of government that's making them.One of the arguments is that the legislatures set those rules, and they can't be changed by judges.So there's going to be litigation over that. …

During the controversy in 2000, the Bush v. Gore controversy, that took five weeks to get from Election Day to the final Supreme Court decision.Here, we're facing something that's a great deal more complex and much more involved.But there are—there are deadlines built into the Constitution.The president leaves office on Jan. 20, unless he's reelected.But he cannot, if it's President Trump, cannot stay in office past Jan. 20.There has to be a new presidential inauguration on that date.And there are federal statutory deadlines as to when electors must cast their votes and when those votes are presented to the Congress for validation.So those deadlines put a squeeze on all of the judicial proceedings that are taking place.

So it is going to be controversial, and it's going to be difficult, and people will make mistakes.Judges might make mistakes, and the people bringing those cases might make mistakes.And it's so highly politicized that there's going to be tension and controversy.I hope these things get resolved peacefully and relatively calmly.But there's a potential there for high temper.

… With Biden's win, we're assuming, with the new 6-3 court, with Mitch McConnell as majority leader once again, a majority leader now that has a lot more power in a lot of ways, he also does not have to deal with Donald Trump—he's going to be dealing with a Democrat—does this make him the most consequential, possibly powerful man in Washington, D.C.?

Well, Mitch McConnell, if he is majority leader, and there's a President Biden, he is going to be a very powerful individual.The majority leader of the Senate always has been a very powerful individual.But individual senators under at least preexisting rules, before the filibuster was changed and—if it has been changed; we don't know with respect to legislation whether it would, whether it would be changed; presumably it won't—but individual senators have a lot of power.Nancy Pelosi, the speaker of the House, is going to have a lot of power.In the Senate, nothing's going to come to the floor without the approval of the—of the leader of the Senate.

But by and large, in the House of Representatives, the speaker has a great deal of power as to what gets to the floor there, so we will have very important and powerful competing power centers in this country with a Democratic House, a Democratic president and a Republican-controlled Senate.

The Confirmation Process

… One other short thing.I want to go back in time a little bit for one other thing, just to be able to maybe put you in that part of the film, as well: the Kavanaugh hearings.Describe sort of where we are at that time.Again, it seems that partisanship reigned, but the bottom line on it all was also what we talked about, was that whoever is in the majority, who owns the Senate or the Judiciary Committee, basically owns the process, to some extent.Talk about just the Kavanaugh hearings and what you think about what happened in that situation and why.

Well, I have to acknowledge a bias.I have known Brett Kavanaugh for a long, long time, probably most of his legal career.I testified in support of Judge Kavanaugh to be on the Supreme Court.I had appeared before him as a lawyer.I found him to be a very decent individual, and I supported him.I thought that what he had to go through—and I'm not going to get into the merits of that—but what he had to go through was very divisive, very painfully hurtful to him.And Justice Thomas went through something quite similar.And I know those scars do not go away.The process can be very, very damaging.And even members of the court who received much more of an overwhelming bipartisan vote nevertheless were exposed to some very unpleasant proceedings.

I can remember when Justice [Samuel] Alito's wife walked out of the hearing in tears because of something that was said about Judge Alito when he was going through the confirmation process.These things can be very damaging to an individual.And we take some of the most wonderful people in this country and nominate them to the Supreme Court.Then we put them through an abusive, somewhat humiliating process.There's a Kabuki dance that takes place in the Senate, where people are making speeches and pounding on the table and making outrageous charges and rhetoric in the form of questions which aren't really questions at all.It's an unpleasant process for someone to have to go through it.

I went through it as a nominee for the executive branch, and it was not pleasant then.But for justices on the Supreme Court, it can be a very, very unpleasant experience.

… After watching Kavanaugh, all of the partisanship of it, watching senators and politicians on both sides accusing judges based on their political party that nominated them of being sort of political operatives, and ending up at the point with Justice Barrett, where it's a party-line vote—we're told for the first time in 151 years that a justice is confirmed along a party line.When you see that, what do you think?Are we at a low point in the way we understand—the way our politicians, our senators, our country understands the judiciary?

I do think that we are a low point—at a low point in the process.It has become, when it is exclusively partisan, and this may have—this most recent Barrett confirmation may have been the only one in recent memory that was purely partisan, that was only one side of the party—of the parties supported it, and one party opposed.But it's been pretty close to that, because there may have been one or two senators that switched over, so forth.It has become so bitterly partisan that the American people have no choice but to think of it as this individual is a—is reflective of the people who vote against him or her, or the people who vote for him or her.And therefore, that individual, when they become a justice, will be that partisan that they've been characterized to be during the confirmation process.I wish we could wave a magic wand and change that.People have asked me, what suggestions do you have, and I've run out of thoughts.I would like to see qualified persons on either side of the political spectrum appointed by Republican and Democratic presidents treated with respect and understanding that they are going to be on the Supreme Court.Let's let the American people see their good qualities and explore what their qualifications are, but not make it into a process that humiliates and degrades the individual that we're going to have on the Supreme Court.

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