Courts

Ted Olson Throws High-Profile Hissy Fit, And Gets Schooled By The ABA

Olson tries to play the media. Ends up playing himself.

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Ted Olson (Photo by Paul Archuleta/FilmMagic)

Ted Olson earned a hefty dose of goodwill from the establishment gatekeepers when he broke with his up-until-that-moment partisanship to fight California’s gay marriage ban. For anyone who followed the law before then, it always seemed a bit unfair that this single act of common sense obscured Olson’s years as the right’s legal hatchet man — at the center of everything from fighting the Office of Independent Counsel for the Reagan administration to serving as Solicitor General for W.’s early years of gutting civil liberties.

Thankfully, this side of Ted Olson has stood up again, throwing a high-profile hissy fit where he quit the ABA over the ABA President Bob Carlson’s support of an FBI investigation of Brett Kavanaugh.

“He purports to have the authority to do so under the ABA charter and by-laws. He does not,” Olson wrote. “The members of the ABA do not need his self-appointed leadership on issues of due process and the rule of law or how the Senate Judiciary [Committee] should conduct its constitutionally ordained processes.”

Self-appointed? He won an election. I know Republicans may not understand this anymore, but in the rest of the world, the person who gets the most votes actually gets to be president. Go ahead and add Ted to the list of Republicans who think investigations are bad if they get in the way of unraveling health care. But the best part of this snit, which was transparently staged for the benefit of the legal media — literally the whole story is “Ted Olson told the National Law Journal so we would have to publish it” — is that Olson is flat wrong about every level of his complaint.

ABA executive director Jack Rives said Tuesday, “I’ve got the greatest respect for Ted Olson, who has been a longtime friend and supporter of the ABA. But in this case, the president does have the authority under our bylaw 29.2 as the principal spokesperson for the association.”

So much for textualism.

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But Tony Mauro and Ellis Kim are professionals and their write-up of this stunt is not without some sly comedy:

Miguel Estrada, a colleague of Olson’s at Gibson Dunn, agreed with Olson that “it certainly seemed as if [Carlson] was trying to arrogate to himself authority he has not demonstrated he has to take sides in a partisan fight. People consider leaving when the ABA does that.”

That would be Miguel Estrada… the guy whose unsuccessful nomination to the federal bench featured in the documents that Kavanaugh pretty clearly lied about under oath. It seems so quaint in light of the present context, but a couple weeks ago we were talking about Kavanaugh claiming he’d never seen stolen emails that he absolutely saw. Throwing him in this story underlines with a wink how ludicrous this all is.

The record shows that I’m less than charitable to Jeff Flake, but the dude is smart enough to understand that “no, let’s not investigate anything that could be sexual assault” is a dumb hill to die on.

Ted Olson didn’t get that memo. Because — like the man Kavanaugh seeks to replace, Justice Kennedy — Olson remains the same partisan hack he always was but with a soft spot for basic human rights for gay people.

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That’s commendable. It’s not exculpatory.

Ted Olson Is Fired Up Over ABA’s Kavanaugh Letter, Drops Membership [National Law Journal]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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