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?”
Noel and Tim and I worked side-by-side. Indeed, one of my favorite memories of the entire recount is the three of us, arm-in-arm, at two in the morning reading Shakespeare’s St. Crispin’s Day speech aloud, “we few, we happy few, we band of brothers.…”
In the late hours of the evening, the three of us drafted an insert for our Supreme Court brief, roughly a page long, that suggested the intermediate fallback. And, as it so happens, that fallback is the path the Court ended up taking. By a unanimous 9–0 vote, the Supreme Court vacated the decision of the Florida Supreme Court and, rather than ruling for us on the merits, the Court instead clarified federal law and remanded
