Considered In or Out?

The White House could announce as early as Wednesday its nominee to replace Attorney General Alberto Gonzales, and former U.S. Solicitor General Theodore Olson has emerged as a leading candidate—despite initial concerns in the administration that he could face a tough confirmation hearing, according to sources close to the process.

Olson, a highly regarded Washington D.C. lawyer, has broad support inside the administration because of his deep experience in the Justice Department in two different presidential administrations. In addition to serving as solicitor general during President Bush’s first term, Olson headed the Office of Legal Counsel during the Reagan Administration.

Olson argued on behalf of George W. Bush in the Supreme Court in Bush v. Gore and is considered one of the nation’s top Supreme Court lawyers. He was serving as solicitor general when his wife, noted commentator Barbara Olson, was killed in the Sept. 11 terrorist attacks. She was a passenger on the hijacked American Airlines flight that crashed into the Pentagon, killing her and 58 other passengers and crew members.

On the administration’s short list since Gonzales first disclosed he would be resigning, Olson has all the right credentials. But some officials, including White House Chief of Staff Josh Bolten, had been concerned that he would face stiff opposition from Senate Democrats. Olson was confirmed solicitor general by a razor-thin 51-47 vote in 2001, when Republicans ran the Senate.

Bolten contacted Olson the weekend before Gonzales’ resignation to see if he would be considered for the post, sources said. Bolten also spoke with George Terwilliger, a former federal prosecutor who was deputy attorney general in the George H.W. Bush administration, as well as Laurence Silberman, a senior judge on the U.S. Court of Appeals for the D.C. Circuit.

Olson and Terwilliger said they were willing to be considered for the position, according to sources close to the process, but Silberman told Bolten he was not. Silberman, a deputy attorney general for Presidents Nixon and Ford, recently co-chaired the Commission on Intelligence Capabilities, which examined the background evidence cited for the invasion of Iraq. He said firmly that he did not want to leave the federal bench.

Olson or Terwilliger would have to leave prominent law practices to head the Justice Department, but both could return to their law firms at the end of the administration. Silberman would have to leave the bench permanently if he were nominated, and he told Bolten that he was not ready to do that, sources said.

Another potential nominee, former Deputy Attorney General Larry Thompson, is in a situation similar to that of Silberman: He would have to quit his position as general counsel of Pepsico and would be unable to return—the company could not leave that position open in his absence. Thompson, widely respected by colleagues in the Justice Department, also has indicated he did not want to be considered for the job.

Others under consideration include retired federal judge Michael Mukasey, a former federal prosecutor nominated to the bench by President Reagan in 1987. As the chief judge of the southern district of New York, he presided over several terror trials, including the conspiracy trial of Sheikh Omar Abdel Rahman, the convicted mastermind of the first World Trade Center bombing in 1993. Mukasey left the bench last year and is now a partner in a New York law firm. While highly regarded, he is seen by some as lacking in managerial experience needed to take over the beleaguered Department.

In deciding between Olson and Terwilliger, White House officials are weighing several factors. Olson is considered the stronger and more experienced candidate, but concerns that his confirmation hearing could turn into a partisan brawl have not gone away, sources said.

That’s the strike against Olson: He’s a bigger fight.

Olson’s supporters have argued to Bolten and others that he would actually be less controversial now than at his 2001 hearings, having been well regarded during his stint as solicitor general. Terwilliger’s supporters counter that he’s equally capable--and more easily confirmable in a contentious Senate.

President Bush’s choice could send a signal: How much fight does he have left—or feel like expending—in the remaining 15 months of his administration? Stay tuned.

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