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DECISION 2000 / AMERICA WAITS

Both Camps Turn to Big Guns for Supreme Court Arguments

November 30, 2000|ERIC LICHTBLAU and ROBERT L. JACKSON | TIMES STAFF WRITERS

WASHINGTON — 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.

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