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Hawaii's two U.S. senators should vote against the confirmation of Washington lawyer Theodore B. Olson as U.S. solicitor general because his appointment spells trouble for native Hawaiian rights, say some Hawaiian leaders. Hawaiian leaders
oppose Bush choice
for high justice postBy Pat Omandam
Star-Bulletin"I think we should be very concerned because given this guy's history, he has gotten the Supreme Court to reverse actions and programs that have been taken in the past," said Rowena Akana, a trustee for the Office of Hawaiian Affairs.
"So my sense is he very well may try to reverse actions that were taken in the Clinton administration that were positive for Hawaiians. That's a scary thing," she said.
President Bush on Wednesday said he intends to nominate Olson to the U.S. Department of Justice post, where he would supervise appellate work for the U.S. government, including arguments before the U.S. Supreme Court. Olson served as an assistant attorney general under the Reagan Administration, and has argued 15 cases before the U.S. Supreme Court.
As one of Bush's top lawyers, Olson recently argued before the high court that the controversial Florida recount was flawed because different counties used different standards for determining intent.
Many people in Hawaii, however, remember him as the attorney hired by the Campaign for a Color-Blind America who successfully argued on behalf of Harold "Freddy" Rice in the Rice vs. Cayetano appeal before the justices in October 1999. Those arguments led to the Feb. 23, 2000 ruling that struck down OHA's Hawaiians-only voting and candidacy requirements, and paved the way for another lawsuit, Patrick Barrett vs. State of Hawaii.
Barrett is challenging the constitutionality of OHA, the Hawaiian Homes Commission and native Hawaiian gathering rights.
"Ted Olson, being nominated for solicitor general, isn't helpful for Hawaiians obviously," said Clayton Hee, an OHA trustee. "So it just makes the Barrett case, should it get that far, that much more difficult."
Hawaii attorney Robert Klein, who represents homesteaders in the Barrett case, said while Olson was a paid advocate for Rice to argue against the restrictions to the state-funded OHA elections, he must now look at all arguments involving the U.S. government in a fair and equitable manner based on the merit of the case.
"I think you can't get away from the fact that the guy advocates a certain position, a certain conservative view of things which is probably appealing to the president, but you can't look at every argument from the advocate's standpoint," said Klein, a retired Hawaii Supreme Court associate justice.
"You've got to look at everything from a much more neutral position, and hopefully he'll do that, hopefully they'll hold him to that."
Olson, a partner in the Washington, D.C., firm Gibson, Dunn & Crutcher, sent an email reply to the Star-Bulletin saying that he will not comment on any questions while his nomination is pending in the Senate.
In a news release issued Wednesday by his law firm, Olson said he has immense respect for those who have served as solicitor general and those people around them. "If confirmed, I will dedicate myself to living up to the high standards that they have established," he said.
Many hope he will. Outgoing U.S. Solicitor General Seth P. Waxman sided with the state and OHA in the Rice appeal before the U.S. Supreme Court. Waxman concluded the United States has a trust obligation to Hawaiians because it bears a responsibility for the destruction of the Hawaiian kingdom and the unconsented and uncompensated taking of its land.