As election night began, the networks called the election for Al Gore early on. At 7:50 p.m., they declared that Florida, with its pivotal twenty-five electoral votes, had voted for Gore—even before the polls had closed in the entire state of Florida. The western panhandle (the most reliably conservative part of the state), in a later time zone, still had people going to the polls when the networks declared it all over.
All of us were despondent; it seemed our efforts had been in vain, until suddenly the networks revisited their call. As more results came in, one network after the other changed the call from Florida going for Vice President Gore to being too close to call. Then, later in the evening, the networks were ready to make a call again. This time, they declared the state won by George W. Bush, and shortly thereafter, the presidency won by George W. Bush.
Al Gore called to concede, and we began the celebrations. But then, not long after, Gore called back to retract his concession. The margin had grown narrower—with Bush’s lead dropping from some 50,000 votes down to just 1784 votes—and, at the end of the night, the results remained uncertain.
Two days later, Josh called me into his office and asked me to get on a plane and fly to Florida. The Gore campaign was contesting the election, and lawyers from across the country were descending on the Sunshine State like proverbial locusts. I packed a bag and headed straight to the airport. When I arrived in Tallahassee, we set up headquarters in the State Republican Party building, coincidentally named the George Herbert Walker Bush Building. Initially, there were just a handful of Republican lawyers on the ground. Our team was led by Ben Ginsburg, the campaign’s outside counsel and an experienced election lawyer. Ben was a friend, and he knew well the complex world of the Federal Election Commission (FEC).
Many lawyers in Ben’s position would have seen this litigation as an opportunity for them to be the stars, but Ben demonstrated a remarkable humility by recognizing early on that his primary expertise was not as a litigator, but rather as an advisor—a quarterback—on FEC matters. Accordingly, Ben and I sat down, just the two of us, in a conference room in Tallahassee with a yellow notepad and asked ourselves, “Who are the best lawyers in the country to defend Governor Bush, to try our case?”
My being in that room was a happy accident. At the time, I was just twenty-nine years old. Just a few years out of law school, I had clerked for Judge Luttig and the Chief and had spent two years in private practice. And as it so happened, I was the only practicing litigator on the full-time campaign staff in Austin. What I had practiced, albeit briefly, was constitutional litigation.
As we sat looking at the empty notepad, it was a Field of Dreams-type scenario: “If you call them, they will come.” The first lawyer I suggested was my former boss, Mike Carvin. Mike, a brilliant Supreme Court litigator, is the best lawyer I have ever seen at anticipating unexpected questions and seeing around corners in unpredictable litigation. Ben readily agreed, so I called Mike on his cellphone. Mike was, at the time, at a wedding in Seattle. He flew from Seattle to D.C., where his wife met him at the airport with a suitcase of fresh clothing, and, hours later, he arrived on the ground in Tallahassee.
Another lawyer I suggested calling was John Roberts. John was then the head of the Supreme Court practice at Hogan & Hartson and universally considered one of the finest Supreme Court advocates in the country. I called John and asked him to come down. He dropped everything and flew to Florida.
Ted Olson, another highly respected Supreme Court advocate and the former head of the Office of Legal Counsel under Ronald Reagan, had already been tapped to lead the Supreme Court team.
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
