For the past several years, Supreme Court buffs have speculated on which of the court's nine long-serving justices might retire. But this week it was the government's chief advocate, U.S. Solicitor General Ted Olson, who said he was calling it quits. In holding the post for three years, Olson personally argued 26 cases before the High Court--and has won 20 of them so far. He also managed to attend virtually every one of the 180 or so cases argued by his office. Now Olson says he's eager to return to a more lucrative private practice.
His resignation comes just days before the high court is expected to hand down decisions in three cases dealing with how the government treats detainees in the war on terror. For Olson, the subject was personal: his wife Barbara died on September 11 in the airplane that hit the Pentagon. He keeps her photo displayed on a cabinet in his office. Some court watchers think the administration could lose big in this week's decisions. Olson says he's awaiting the results with "hope and trepidation." Last Friday he sat down in his art deco offices at the Justice Department with Newsweek's Michael Isikoff and Debra Rosenberg.
Excerpts: NEWSWEEK: Why are you leaving now?
Ted Olson: The best time for a solicitor general to leave is June [when there are no more arguments before the Supreme Court until October] It boiled down to: Was it going to be this June or next June? If I were 50, I think I'd stay forever. I'm 63. I thought about it a lot. After arguments were over in April, I gave myself time to reflect. I went back and forth and back and forth and back and forth.
Why not leave after the election? It's only another six months.
I can't predict the outcome of the election anymore than I can predict the outcome of Supreme Court cases.
Did anyone in the administration ask you to stay on?
If I'd wanted to stay longer everybody would have been perfectly willing to let me stay longer.
You lost your wife Barbara in the September 11 attacks. Did you think about her while you were arguing the terror cases before the Supreme Court?
In a way for many people Barbara was symbolic of September 11. She was familiar to them. They've seen on her on TV. When they saw her picture on TV [after the attacks]...that brought it home to them. I felt in some respects I was a person inside the administration who felt what many people who lost family members on Sept. 11 felt that day. But you can't be warped in your judgment. When I was arguing before the Supreme Court, I didn't have that picture in my mind. You can't be wrapped up in emotions when you're arguing a case before the Supreme Court.
Do you think the process for judicial nominations has gotten too political?
It's badly broken. It's a tragedy. There are people of high intellectual capabilities, extensive experience and people who have dared to have opinions [who couldn't be confirmed today]. One side or the other is going to keep these people from serving as judges. The chickens are going to come home to roost. I have many friends in the academic and legal world who are liberal Democrats, I've always gotten along with people from all sides, and they [wouldn't be able to be confirmed either] and that's a shame. The idea that the Senate doesn't vote, that they don't give their advice and consent... it's a tragedy.