The Ted Olson I Knew

Despite the vast areas of law and politics about which we disagreed, Ted Olson’s passing hit hard last week. Many highlights of his career are well known: head of the Justice Department’s Office of Legal Counsel under Ronald Reagan; victorious advocate in Bush v. Gore and Citizens United v. Federal Election Commission; Solicitor General under George W. Bush; unexpected but successful champion of gay marriage and undocumented immigrants brought to the U.S. as children, in the cases of Hollingsworth v. Perry and U.S. Department of Homeland Security v. Regents of the University of California, respectively. But such achievements do not fully capture key aspects of Ted as a human being, qualities that would be most welcome in our current polarized political moment.

I was privileged to experience Ted in a variety of capacities at three distinct stages in my career. First, I had the privilege of working my last several months at the Justice Department’s Office of Legal Counsel under his leadership. I was a “career lawyer,” not a politically sensitive appointee. But I, along with many (probably most) of my OLC colleagues, was a Democrat. As I understood matters, Ted was under no small pressure from the White House to make life miserable for Democratic “holdovers” and to populate the office, sometimes called the think tank of the Justice Department, with more politically sympatico successors. He was having none of it. As far as I could tell, he was not merely respectful but personally congenial and professionally supportive of every young lawyer in the office, regardless of race, sex, or political affiliation. He was, to put matters simply, a great boss. And like his Democratic predecessor, John Harmon, who had hired me in the first place, Ted cared only about getting the law right, not about whether his opinions conformed to a party platform.

Over the years, as a faculty member at different law schools, I later invited Ted to give school-wide talks. During my deanship at the University of Pittsburgh School of Law, I asked him to give a speech—regarding the topic, my memory is hazy—as part of the law school’s centennial celebration in 1995. Later, while Ted was Solicitor General under the George W. Bush administration and after I had joined the faculty at The Ohio State University School of Law (now the Moritz School of Law), I invited Ted to give a lecture on his position as the government’s advocate before the Supreme Court. What stuck with me was that, after going through the more formal parts of his remarks, he would speak to his primarily student audiences about the pleasures of service as a government lawyer. Law students hear a great deal about problems in the profession, and more than a few no doubt pursue their studies burdened by doubt as to whether they have chosen the right path. Ted wanted to convey just how much satisfaction, even joy, one could have as an attorney and public servant. The students seemed thrilled to hear it. As an educator, I was deeply grateful for the message he chose to send.

Our final collaboration was on a project with a clumsy name, the Knight Commission on the Information Needs of Communities in a Democracy. In essence, the commission was a Knight Foundation-funded initiative, organized through the Aspen Institute, to assess the information needs of 21st-century American communities and to recommend measures by both public and private sectors to help communities better meet those needs. In 2008, before the blue-ribbon commission was fully formed, I was named its research director. I learned, however, that the commission’s co-chairs had yet to be recruited and that both Knight and Aspen were concerned that at least one co-chair have well-established credibility with conservative audiences, lest the whole project be seen as partisan or one-sided. As I recall, I am entitled to take credit for nominating Ted; at the very least, I have correspondence to verify that I worked hard to recruit him as chair. He and co-chair Marissa Mayer, the former head of Yahoo, led a series of deliberative meetings with fifteen other demographically, politically, and professionally diverse commissioners. Approaching 70 and having reached the pinnacle of our profession, Ted derived no benefit from this pro bono commitment other than whatever pleasure he took in sharing ideas with such a broad-gauged group of thinkers, primarily from outside the academy and offering the country some guidance dealing with these thorny issues. But as I had anticipated, his warmth and enthusiasm were unflagging. They helped navigate the project to a consensus report that the Barack Obama-era FCC credited with influencing its policy on access to digital broadband. At least as helpful as his intellectual acumen was what Ted offered as an inclusive team leader. If we failed to solve the problems of democracy, the fault is hardly his alone.

Ted’s later-career role in making the case for gay marriage, both in California and nationally, and his successful advocacy on behalf of the “dreamers,” immigrants who were brought to the U.S. by their undocumented parents, no doubt surprised many for whom Ted was best known as a giant in the conservative legal universe and a bête noir of Hillary and Bill Clinton in the 1990s. But such efforts were consistent with his personal and professional values, honed in decades of government service and over 50 years at Gibson, Dunn, the Los Angeles-based powerhouse law firm. In appreciation of Ted, Nina Totenberg, the famed NPR legal correspondent who covered Olson for decades, has written that “he proved time and again that he was a lawyer first, and a true believer second.” I think “open-hearted human” belongs ahead of “true believer” also. The legal profession and the nation would be well served if every young lawyer, on the right or left, could be mentored by a role model so gifted in craft and honorable in spirit.

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