Ashcroft has no option but to defend. However, Ted Olsen can give an opinion as to what Ashcroft should argue. The Solicitor General is empowered to decide what cases should be defended and how to defend them. Solicitors General are listened to very carefully by the courts and it was a stroke of genius for McConnell to have tapped Starr who was Bush the first's solicitor general and a former Clerk in the Supreme Court.