Both Camps Turn to Big Guns for Supreme Court Arguments

One is the darling of the liberal legal elite, a Harvard constitutional law scholar who cut his teeth on high-pressure Washington politics 13 years ago by helping the Democrats derail the Supreme Court nomination of conservative Judge Robert H. Bork.

The other is a California-bred Republican lawyer who has taken on often-unpopular clients, such as the Los Angeles police officers convicted in the Rodney G. King beating or a military college that fought in vain to keep out women.

Laurence H. Tribe and Theodore Olson have sparred before but never in a contest as anxiously watched or as historic as Friday’s oral argument before the U.S. Supreme Court on the Florida election controversy. The lawyers’ rhetoric could help decide who will govern the nation. And the argument will be widely and rapidly heard by the public as never before in the court’s history. The justices have authorized an audiotape of the argument that can be broadcast almost immediately after the hearing.

Olson will argue on behalf of Texas Gov. George W. Bush that Florida Secretary of State Katherine Harris clearly had the authority to end the manual recounts in Florida on Nov. 14 and declare the GOP’s Bush the winner. Tribe will counter for Vice President Al Gore’s camp that the Florida Supreme Court, which permitted some manual recounting of votes to continue past the original state deadline, has broad discretion to interpret the state’s electoral laws.

Both lead attorneys are regarded by their peers as keen legal minds, eloquent and forceful. Whereas Olson is considered more attuned to detail, Tribe thrives on laying out broad scholarly arguments--a professorial style that strikes some critics as arrogant and cocky.

But as a University of Michigan law professor once remarked of Tribe: “Sure, he’s cocky, but so were Babe Ruth and Muhammad Ali.”

Tribe, a frequent guest on ABC-TV’s “Nightline” in recent years, turned professorial when he and Olson met in a federal court in Florida two weeks ago over Republican efforts to block manual ballot recounts. Tribe said in court that Olson, like “any student in a basic constitutional law class,” should realize the many shortcomings in his legal reasoning. The judge praised the arguments of both men, but Tribe won.

Tribe, 59, graduated from Harvard Law School in 1966 and went on to clerk for the late U.S. Supreme Court Justice Potter Stewart. He returned to Harvard as an assistant professor in 1969 and a decade later published a treatise on constitutional law that is still widely read by law students and frequently cited in court opinions.

Much of Tribe’s early trial work was done on behalf of liberal causes, usually pro bono. He defended abortion rights and the right of Hare Krishnas to solicit donations at a state fair. He represented the National Organization for Women in a battle for ratification of the Equal Rights Amendment. And he argued against laws prohibiting consensual sodomy between adults and for 1st Amendment protection of public school advocates of gay rights.

During the 1980s, as his reputation grew, Tribe took on corporate work and his fees skyrocketed. For helping Pennzoil Co. win an $11-billion fight with Texaco Inc. in 1985, he received $4 million in legal fees.

Some believe that Tribe’s biggest moment--his high-profile role in the bitter 1987 Senate confirmation hearings of Supreme Court nominee Bork--may have cost him a seat on the high court. By denouncing Bork as an extremist and saying that he had a “fundamentally narrow view of liberty,” Tribe helped doom the nomination.

“He’s an absolutely first-rate mind and would probably be Supreme Court material for a Democratic president except for the fact he took such a strong stance against Bork and so would never be able to get Senate Republicans to confirm him,” said Paul Rothstein, a professor of constitutional law at Georgetown Law School.

His counterpart in Friday’s Supreme Court proceeding, the 60-year-old Olson, made his mark on the West Coast, graduating in 1965 from Berkeley’s Boalt Hall School of Law, signing on at the blue-chip Los Angeles law firm of Gibson, Dunn & Crutcher and backing Ronald Reagan’s bid for the White House. His big break came in 1981, when a mentor and fellow partner at the firm, William French Smith, became U.S. attorney general under Reagan and tapped Olson to be a top aide.

A former colleague at the Justice Department recalled this week that some saw Olson as a “right-wing zealot.” But he soon impressed many critics as a straight shooter who was unafraid to question prevailing Republican sentiments.

Politics, however, almost did in Olson when Democrats on Capitol Hill accused him of perjuring himself in 1983 testimony related to an environmental cleanup project. An outside counsel investigated the charges for 28 months in a case that the U.S. Supreme Court eventually used to affirm the authority of such outside corruption inquiries.

The independent counsel ultimately concluded that although Olson was “less than forthcoming” in his testimony, he should not be indicted. For Olson, the scars from the investigation were deep. “It was as if a horrible presence had come to live with me. I would wake up at night thinking: ‘If I could only make people understand, it would go away,’ ” he recounted later.

Olson--who lives in Great Falls, Va.--has made an impressive comeback in the last dozen years. The husband of conservative author and commentator Barbara Olson and a close friend of former Whitewater independent counsel Kenneth W. Starr, Olson boasts a solid list of favorite GOP-backed causes, with clients including Reagan.

But he has also taken on issues not traditionally linked with conservative politics. In his years in Los Angeles in the 1970s, for instance, he represented numerous media companies--including The Times--on 1st Amendment issues, and he challenged the city of Burbank’s right to ban news racks from most city streets.

In 1996, Olson lost a closely watched case on gender equality. The U.S. Supreme Court ruled that Virginia Military Institute--the nation’s last male-only state college--had to open its doors to women.

Litigator Alan Morrison, who argues frequently before the Supreme Court, said that, when he was looking for a lawyer to lodge an appeal on behalf of a white rancher in Hawaii who objected to a voting policy that favored native Hawaiians, he knew many lawyers would find the conservative politics too hot to handle.

“But I knew it wouldn’t offend Ted,” he said. “It probably energized him. . . . He’s a partisan Republican.”

Olson won the Hawaii case, as the Supreme Court ruled earlier this year that states cannot use race or ancestry to grant special voting privileges.

While Democrats and Republicans have turned to two of their most able and loyal legal minds to argue the complex case, some legal observers said that strategy could carry a downside: In a case that is already so politically charged, the lawyers risk being seen by the justices as too partisan or ideological.

“You can’t leave your baggage behind,” said Carter Phillips, a veteran litigator before the high court. “I don’t think it’ll be lost on any member of the court that they come in with an ideological viewpoint. It’s just a fact. So whoever can seize the middle of the court can win.” Added Jonathan Turley, a George Washington University legal scholar: “The danger . . . with both Tribe and Olson is that they are viewed as legal firefighters who are called out by their respective parties.”

Even lawyers concede that no one really knows what impact--if any--the Supreme Court’s review will have in determining the next president. More certain is that Tribe and Olson will face nine justices who love a good interrogation and who are unlikely to be swayed by the celebrity status of the lawyers standing before them.

Litigator Morrison said that the justices are often more likely to badger litigators whom they know well from past appearances.

“They’re equal-opportunity abusers,” he said.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Bush’s Legal Team

JAMES A. BAKER III

A close advisor to former President Bush, the former secretary of State was called in to manage the Florida situation for George W. Bush’s campaign; recruited at the urging of Bush’s father and Dick Cheney.

FRED BARTLIT

A Chicago trial lawyer brought in Tuesday by the Bush team to bolster its already massive legal team. He specializes in representing large corporations in complex litigation. *

PHILIP BECK

A trial lawyer who will work with the rest of the Bush team on litigation. He and Bartlit are partners in the same Chicago firm.

DARYL BRISTOW

Harvard Law School graduate is a partner at the Houston-based law firm of Baker Botts. He mainly handles corporate litigation work.

BEN GINSBERG

A former Boston Globe reporter, now a Bush campaign fund-raising legal advisor; also a former counsel to the Republican National Committee.

THEODORE OLSON

A former assistant attorney general in the Reagan administration; close friend of former independent counsel Kenneth W. Starr; personal attorney for former President Reagan. *

BARRY RICHARD

One of Florida’s leading constitutional lawyers and a former state deputy attorney general. In 1998, he served as campaign legal counsel to Republican Gov.-elect Jeb Bush.

G. IRVIN TERRELL

Along with Baker and Bristow, a senior partner at Baker Botts--one of the leading corporate donors to the Bush campaign.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Gore’s Legal Team

DAVID BOIES

Known for his nearly photographic memory; won the federal government’s antitrust case against software giant Microsoft Corp. He most recently represented the music-swapping firm Napster.

WARREN CHRISTOPHER

A Los Angeles lawyer who has held a high profile in Democratic politics for more than 30 years; helped President Clinton choose his entire Cabinet--including himself as secretary of State.

KENDALL COFFEY

Argued on behalf of Miami relativies of Elian Gonzalez before the federal appeals court in Atlanta; represented Miami Mayor Joe Carollo in voter fraud suit over his election loss.

W. DEXTER DOUGLASS

Longtime aide and general counsel to late Florida Gov. Lawton Chiles. A graduate of the University of Florida’s Law School, he has long been involved with the state’s Democratic politics.

LAURENCE H. TRIBE

Constitutional law professor at Harvard; helped lead attacks on one time Supreme Court nominee Robert H. Bork, who was rejected by the Senate after being nominated by President Reagan.