by Ted Cruz
And George W. Bush had brought in his father’s right-hand man, Jim Baker, to lead the team overall. Baker was legendary. He had served as White House chief of staff, as secretary of the treasury, and as secretary of state. He had managed five presidential campaigns. He was George Herbert Walker Bush’s best friend and closest confidant, but he was not particularly conservative. During the Bush 41 administration and the Reagan administration before that, Baker far too often had run circles around conservatives in those administrations.
When George W. Bush launched his 2000 presidential campaign, he notably excluded Baker and the other more moderate greybeards that had surrounded his father’s administration. But, for this unpredictable mayhem, George W. Bush wisely turned to Baker because nobody alive better combined legal knowledge with cunning, ruthless savvy, a nuanced understanding of the press, and a statesman-like gravitas. Baker came to direct the entire team.
Also early on, we realized we needed trial lawyers—that we couldn’t have all pointy-headed Supreme Court clerks who do appellate law. Rather, we needed courtroom lawyers who wouldn’t run scared if they saw a jury. I suggested Fred Bartlit, a legendary trial lawyer who spent decades with the Chicago-based law firm Kirkland & Ellis and then started his own firm, Bartlit Beck in both Chicago and Denver. When I had finished my clerkship with the chief, I had interviewed at Bartlit Beck.
One of my closest friends clerking at the Court was Glen Summers, a Scalia clerk who was among the most conservative clerks at the Court. (Glen would later be a groomsman at Heidi and my wedding.) Glen and I both interviewed together at Bartlit Beck and at Cooper Carvin. I seriously considered going to Bartlit Beck but ultimately chose a different path. I had gotten to know Fred in the course of the interviews and recognized that we needed the skills of a seasoned trial lawyer. Ben gave the green light for me to call Glen and ask both him and Fred to come to Florida. Fred then asked if he could bring his lead partner, Phil Beck. I didn’t know Phil at the time, but Fred promised that Phil was as talented a trial lawyer as there was practicing, and we needed him. I said we’d be glad to have him.
We set up the Bartlit Beck team in a different building. We told them that, at some point relatively soon, there’s going to be a trial, so don’t get drawn into the media circus, don’t get drawn into the appellate battle, but get ready for trial. And they did.
Early in the proceedings, there were a total of seven different cases pending in different courts, all challenging the outcome of the election. The first time the votes were counted, George W. Bush won. He had the most votes, but Democrats wanted a recount—and it quickly became clear that they wanted to keep counting over and over and over again until Al Gore was finally declared the winner. That’s not surprising in any election. Whoever has the fewest votes has all the incentive to want endless recounts because otherwise, they lose.
In the first few days in Florida, Secretary Baker asked me to serve on all seven of the different legal teams to ensure consistency between what we were saying in different courtrooms. And my first six days down there, I slept a total of seven hours. It was chaos. We had charts on the wall, mapping out each of the different cases, any one of which, if it went wrong, could cost the presidency of the United States.
Our trial team was led by Bartlit Beck and Houston-based Baker Botts (where I had spent two summers working in law school). They spent two weeks separated from everyone else getting ready for trial.
Of course, the Democrats had their own array of trial lawyers. But their entire team was led by, and much of the work was done by, one person, David Boies. David Boies is an amazingly talented litigator. He’s brilliant, and he has a photographic memory. He seemed equally adept at questions of law and questions of fact and was as quick on his feet responding to unexpected changes as any lawyer I have seen in a courtroom.
But Boies was simply doing too much. He led the State Supreme Court effort, which for us had been led by Mike Carvin. He led the U.S. Supreme Court effort, which for us was led by Ted Olson. He led the state trial team, which for us was led by Fred Bartlit and Phil Beck. He became the chief press spokesperson for Vice President Gore, which for us was led by Jim Baker and former deputy AG George Terwilliger. In any one of these endeavors, Boies was excellent. At all of them, simultaneously, there simply were not enough hours in the day for one man.
For elections, many counties in Florida used a punch-card system of voting where the voter pushes a stylus through a punch card and pushes out what’s called a “chad”—the little rectangle that the stylus pokes out. One of the arguments presented by the Democrats was that the voting machine used in Florida’s punch card systems had a problem that led to systematic undercounts of the votes. The theory went that the first column of a punch card was always used in every election, whereas the second and third columns were used less frequently. Therefore, they claimed, the first column would get more chads built up under it, and, as they piled up, it would become more difficult to push the stylus through and vote for the candidate you wanted—which they presumed to be Al Gore.
This was a curious theory, on many fronts. And we knew we had significant evidence to counter it. One of the younger lawyers working on the team was preparing to take the deposition of the Democrats’ trial expert, and he was eager to rip the expert apart. Fred and Phil jumped in and stopped him and said, “You will do no such thing. We are going to use this at trial. And we have zero interest in telegraphing our trial strategy at pre-trial deposition.” Instead, the deposition focused primarily on questioning the expert’s academic qualifications, which presumably led the Gore team to believe that, at trial, we were going to dispute whether this expert were sufficiently qualified.
The expert at issue was a Yale statistician who had prepared a report that examined prior Florida elections. He argued that in Florida, the 1998 race for U.S. Senate had been in column one, the race for governor in column two, and there were significantly more undervotes in the Senate race than in the governor’s race. Specifically, 1.6 percent more votes were cast statewide in the governor’s race than were cast in the Senate race. That, the Democrats argued, supported their theory that the chads would build up under the first column, and the rubber in the voting machine would get stiffer under column one, and as a result it would make it harder to push the stylus through and vote.
I remember the night before trial commenced. All of us on the trial team were in a large conference room seated around the table. Phil Beck had a baseball cap on and was wearing it backwards. He had a yellow pad in front of him. In a corner of the room, the television set was on, and David Boies was being interviewed by Larry King. Phil looked up and said, “What in the hell is he doing on Larry King?” He said, “We’re going to trial tomorrow, and I’m going to destroy his lead witness, and he doesn’t know it because he’s on #@#$! Larry King!”
The next day, things played out just as Phil had predicted. The Yale statistician laid out his theory that prior elections showed it was harder to vote for races in column one than races in column two. Then Phil stood up for his cross-examination. Phil began gently enough, but then moved in for the kill:
“In your sworn affidavit, sir,… you said ‘a closer inspection of the Palm Beach ballot reveals that the senatorial race was recorded in the first column and the gubernatorial race in the second,’ right?”
“Right.”
“Now, professor, you’ve never inspected the ballot that was used in 1998 in Palm Beach County, closely or otherwise, have you?”
[six full seconds of silence, with the professor looking deeply anxious]
“I have not seen the ballot.”
“Well, I got one this morning. [showing the witness the ballot]… Now you understand, sir, that this thing I’m pointing to on the left, that’s page one of the ballot.… We got page one of the ballot… and then page two of the ballot.… Now do you understand, sir, that the way these ballots work, on page one, everything that’s on page one you vote for in the first column.…�
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“Yes, I understand, sir.”
“Now you read please for the court… what is the race here at the top of column one?”
“… It’s the… United States senator.”
“And what’s right underneath the United States Senate, in column one?”
“State governor, lieutenant governor.”
“So, so what you said in your sworn affidavit, was in column two was actually in column one, right?”
“… it should have been in column one. My mistake; it was the second race, and that’s what I put.…”
“Well, in your affidavit, you didn’t say that the fact that it was the second race was what’s important, you said that the fact that the Senate was in column one and the governor was in column two, why that ‘seemed to suggest’ that the voting machine wasn’t recording all the votes in column one.…”
“I said that this was possible, yes.”
“And you can see here that that sworn affidavit… that just wasn’t true, was it, sir?
“It contained a mistake.”
“… and when you signed that sworn statement, you were relying on the Gore legal team to give you the straight facts, weren’t you?”
“I relied on the facts that I received. Yes.”
“That’s all I have, Judge.”
It was the most stunning cross-examination I’d ever seen. Television dramas notwithstanding, “Perry Mason” moments are rare in court, and yet because our team was fully prepared—we had examined the actual ballots, we had physically tested the voting machines used in Florida elections—we utterly destroyed the Gore team’s expert witness. Afterwards, that Yale statistician was seen weeping, cradling his head in his hands in the courtroom hallway.
* * *
During one of the early days of the litigation, as we walked into one of the many trial court proceedings, Warren Christopher, who had been Bill Clinton’s secretary of state and was helping lead Al Gore’s team, turned to Jim Baker and said, “Boy, it’s something else trying to manage the egos of all these lawyers.” Baker responded, “Really? We haven’t had that problem.” Now, that was unquestionably the right political answer to give. It projected strength and calm, but as it so happens, it was also truthful.
The legal team that the George W. Bush campaign brought together in Bush v. Gore is the finest legal team I’m aware of that has ever been assembled in any case. It was a dream team of the top Republican lawyers across the country. Ordinarily, you could never assemble a team like that on any case and have it work. The egos would inevitably clash. Too many 800-pound gorillas on the same litigation team is not a recipe for success. Bush v. Gore was different, however. The Republican lawyers across the country watched what was happening, and they were horrified by it.
For example, as I mentioned, John Roberts was widely considered one of the finest, if not the finest, Supreme Court advocate alive. Prior to John’s being retained, the Bush campaign had already tasked Ted Olson with leading the Supreme Court argument. Remarkably, John was content merely to help with the briefs, to draft and edit portions of them, and to help prepare Ted for oral argument at multiple moots.
One day, however, in the midst of the recount, I saw John carrying a suitcase walking out of the Tallahassee headquarters. I stopped him and said, “John, where are you going?” He said, “Back to D.C.” I responded, “John, you can’t leave. We’re in the middle of a battle for the whole country.” He somewhat sheepishly replied, “Well, I’ve got a U.S. Supreme Court argument tomorrow morning.” John went, got on a plane, flew to D.C., and argued a complicated intellectual property case the next morning, which he ended up winning 9–0. Then he immediately returned to working to help us litigate the case. John was a truly gifted lawyer.
Our team was united by the shared conviction that the facts were clear: Bush had won. The voters had voted. The election was done. Yet in election recounts, Democrats tend to win recounts far more frequently than do Republicans. Republicans, in recounts, are often too ready to throw in the towel. Democratic activists and lawyers, in contrast, are often heavily driven by the ends justifying the means.
I recall our team discussing what to do when the Democrats initially asked for limited recounts, in just four heavily Democratic counties in Florida. We had a debate: Should we counter by asking for reciprocal recounts in four overwhelmingly Republican counties? I still remember Mike Carvin energetically arguing “no” because, he said, that in the Democratic recounts, “their guys will cheat, and they will steal. Their guys are going to be poking the chads out with their fingernails as they’re counting.” And every time they count, they will have more Democratic votes. “Our guys won’t cheat,” Mike continued “They’ll actually just count it, and so it doesn’t advantage us to count again in a Republican county because if our guys aren’t stealing votes, counting again doesn’t help us.”
Now, some observers would surely dispute whether Mike’s characterization was accurate or not, but I can tell you the Bush trial team believed it was true. And that is why we didn’t seek targeted recounts in selected Republican counties.
I remember in those early days, sitting and helping draft the initial pleading in which we laid out a Fourteenth Amendment Equal Protection Clause claim—namely, that counting ballots under multiple different legal standards in multiple different circumstances all simultaneously violated the Constitution’s guarantee for equal protection under the laws. When we first drafted it, all of us agreed the claim was weak. At the time, it was a truly novel claim—but over the course of the thirty-six days that the recount ensued, a remarkable thing happened: each day, that claim got stronger and stronger.
The first major appeal in Bush v. Gore ended up in front of the Florida Supreme Court. The Florida Supreme Court, at the time, was dominated by partisan Democrats, many of whom had been appointed by Democratic governors. My old boss, Mike Carvin, was arguing the appeal for us, and the central legal question was whether the Florida election statute, which provided a strict two-week time frame to certify the election, permitted the courts to keep the election open beyond that deadline.
I remember our team got together to moot Mike as he prepared for that argument. He argued, rightly, that under the law there was no discretion to disregard the statutory two-week time frame. At the moot, several of us asked him, what if we, the imaginary, judges want to change that time frame? Mike responded adamantly, “You can’t.” “But what if we do?” we replied. Again, Mike responded, “You can’t.” At which point I interjected, “Mike, suppose they just say they’re going to make up a new deadline?” Mike exploded, “Then they’re barbarians!”
And so it was. The court disregarded the statute and invented a whole new deadline (extending via judicial fiat the certification date from November 14 to November 26).
That decision prompted the first time the case went to the U.S. Supreme Court. When we filed for certiorari, the lawyers working on the case disagreed about whether the Court would take it. Many thought the Court would avoid the case because it was a political hot potato. I was of the view—as were many of the other Supreme Court clerks working on the team—that the Court would choose to take the case even though it was risky, and even though it would potentially pull the Court into political controversy. I believed Chief Justice Rehnquist and the other justices would feel an obligation to the country to take the case. That proved correct, and the Court agreed to hear the appeal.
The lede in Linda Greenhouse’s New York Times story that day reflected the conventional astonishment that the Court would hear the case: “The Supreme Court today unexpectedly placed itself in the middle of Florida’s presidential vote-counting imbroglio.…”
As we were preparing our Supreme Court brief, I worried that the legal argument being put forward—that federal law categorically prohibited Florida from changing its election law on certification—was too aggressive, that it tried for a complete victory, and that the justices might not be prepared to go that far. And so I
suggested that we needed a fallback position in the litigation. In the years since then, I have often tried to give courts fallback positions that could still amount to meaningful victories. As a litigator seeking to represent your clients, you should never let the perfect be the enemy of the good. And a good litigator is able to pivot and find multiple ways to win for his or her clients. For that reason, I suggested that perhaps there was a result the Court could arrive at short of total victory that would nonetheless be consequential.
As a fallback, I suggested we urge the Court simply to clarify federal law and remand for reconsideration, and then I teamed up with my good friends Noel Francisco and Timothy Flanigan to draft an insert for our brief making that argument. Noel (who later was a groomsman at Heidi and my wedding) had been a clerk for Judge Luttig and Justice Scalia. I had helped recruit Noel as a young lawyer to join me at Cooper Carvin. Today, Noel just finished serving as the U.S. solicitor general under President Trump for the past three years. In the midst of the Florida recount, I recall Noel and me musing late at night about—if somehow Gore were to prevail—maybe starting our own law firm together and perhaps even trying to convince Judge Luttig to leave the bench and join us. But fate would take us on a different path.
Tim had clerked for Chief Justice Burger along with Judge Luttig, he had succeeded Luttig as the head of the Office of Legal Counsel under Bush 41, and he would later become the deputy White House counsel under George W. Bush. Tim and his wife have a total of fourteen kids, including three sets of twins. He’s the only person I know who could (and did) give Justice Scalia grief on the family front, saying, “nine kids, Justice, that’s a nice starter family.…” When Tim went home briefly from Florida to D.C. for Thanksgiving, he jokingly referred to it as a “conjugal visit.” I replied, “Tim, you do know what happens when you do that? Have you considered maybe a nice game of Parcheesi?”