Florida Recounts Attract Legal Powerhouses – By Joseph P. Williams (usnews.com) / Nov 13 2018
Prominent players in the 2000 presidential election recount landed big jobs after the dust settled. It’s likely to be the same this time around.
Since the Florida senate and gubernatorial races ended in a statistical deadlock six days ago, a legion of attorneys have descended on the Sunshine State, primed for political battle over a hotly-contested, highly-consequential election.
But if history is any guide, the legal ground troops in Florida litigating the ongoing recount – fighting to determine if Andrew Gillum, the Democrat, or Republican Ron DeSantis won the Florida governor’s race, or whether Sen. Bill Nelson, the incumbent Democrat, successfully fought off Republican challenger Gov. Rick Scott for the senate seat – could include a future White House chief of staff, a next-generation political heavyweight or Supreme Court justice.
Several lawyers who worked on the 2000 Florida recount between former Vice President Al Gore, the Democratic’ presidential nominee, and then-Texas Gov. George W. Bush, the Republicans’ choice for president, parlayed that experience into high-profile, highly-influential political and legal careers, particularly on the right.
They include Chief Justice John Roberts, a lynchpin of the high court’s conservative bloc, Justice Brett Kavanaugh, Roberts’ newest colleague, and Sen. Ted Cruz, a Texas Republican who just won re-election and ran for president in 2016.
Democratic veterans of the 2000 recount, made names for themselves mostly behind the scenes, including Bob Bauer and Ron Klain, both of whom went on to low-profile but extremely influential White House jobs under President Barack Obama. After leaving the West Wing, both Bauer and Klain built their connections into membership among Washington’s so-called super lawyers – elite attorneys whose decisions can move the national agenda.
Perhaps most remarkably, two Florida recount alumnae who often squared off in court during the Bush v. Gore dispute – Ted Olson, who went on to become solicitor general under President Bush, and David Boies, a liberal hero who started a powerful solo practice – set aside their political differences, joined forces and helped bring marriage equality to the gay community.
“People involved on both sides of the Bush v. Gore recount went on to careers at the top levels of government,” says Michael Morley, a law professor at Florida State University. “One way of looking at the situation is that both sides recruited top attorneys – the very people you would expect to be tapped to serve in top government positions.”
The current election disputes in Florida’s statewide races, along with the 2000 presidential recount, “are two really important points in our history of election administration,” says William Yeomans, a law professor at Columbia University who worked in the Department of Justice under former President Bill Clinton at the time of the recount.
Eighteen years ago, “most Americans had no idea how elections were conducted, and sort of the ugliness of the administration of elections, and how much irregularity there was and how circumstances could make your vote not count,” Yeomans says.
As a result of the recount, “the country got an amazing education in election administration that spawned an entire wing of legal expertise,” Yeomans says. But the recount also spawned the lucrative new legal practice of election law.
“The election law bar has grown up since then there were a few people that did election law then but it was not a staple then the way it is now,” he says. “People made a lot of money off of it.”
Perhaps the most prominent Florida recount veteran is Roberts, whom Bush nominated to the high court in 2005, not long after he took office.
At the time of the disputed election, Roberts was a lawyer at Hogan & Hartson, a well-connected Washington law firm; he returned to the firm after serving in the Justice Department and the White House counsel’s office under former President George H.W. Bush in the early 1990s. As the 2000 Florida recount escalated, Roberts raced to Florida to advise then-Gov. Jeb Bush, the state’s Republican governor and brother of the presidential candidate.
Roberts “came to Florida in 2000 at his own expense and met with Governor Bush to share what he believed the governor’s responsibilities were under federal law after a presidential election and a presidential election under dispute,” Jacob DiPietre, the Florida governor’s press secretary told The New York Times just after Roberts’ Supreme Court nomination.
DiPietre told The Times he is “not sure who” connected Roberts with the governor. But the move paid political dividends: President Bush nominated Roberts to the appellate court not long after taking office, selected him for the Supreme Court to replace retiring Justice Sandra Day O’Connor, then promoted him when Chief Justice William Rehnquist died suddenly before Roberts was confirmed.
Kavanaugh, Roberts’ new Supreme Court colleague, joined Bush’s Florida recount legal team after building his political bona fides as an investigator and assistant counsel for Ken Starr, the independent counsel investigating former President Bill Clinton in the mid-1990s.
By 2000, however, Kavanaugh had previous experience litigating in Florida: Just months before the disputed presidential election, he represented the family of Elian Gonzalez, the six-year-old boy at the center of an international dispute with Cuba, and also represented Jeb Bush when the governor tried to create a school-voucher program that would use taxpayer money to fund private religious schools.
Kavanaugh, too, saw his stock rise after the 2000 presidential election was settled.
Not long after George Bush won the White House, Kavanaugh was in the White House serving as the new president’s staff secretary – a powerful administrative job that required Kavanaugh to personally approve nearly every document that reached the Oval Office. Bush later nominated Kavanaugh for a federal appellate judgeship for the Washington, D.C. circuit, a prestigious bench known as a conduit to the Supreme Court; he was confirmed in 2006.
And when Justice Anthony Kennedy – who was on the high court in 2000 and was a pivotal vote to end the Florida recount – resigned from the Supreme Court, he met privately with Trump to recommend Kavanaugh replace him. Should the ongoing Florida senate and gubernatorial races reach the Supreme Court, Kavanaugh may help determine the outcome.
Back in 2000, Sen. Cruz was a 29-year-old mid-level domestic policy aide to the George Bush campaign, but he got swept into the recount fight because of his legal background: Harvard Law School graduate, former Supreme Court clerk, experience with constitutional law.
Though he initially had menial tasks, Cruz aggressively worked his way into a more prominent role, writing briefs, suggesting strategies and helping support them through legal arguments.
“I was far too cocky for my own good, and that sometimes caused me to overstep the bounds of my appointed role,” Cruz wrote in his book, “A Time for Truth,” according to an article in The New York Times about his experience in the Florida recount.
Other prominent former Florida recount participants who were rewarded for helping George W. Bush win the presidency include Alberto Gonzales, who was attorney general under the president, and Olson, who was the president’s top advocate before the Supreme Court. Gonzales is currently dean of Belmont University College of Law in Nashville, while Olson is a partner with Gibson Dunn, a politically-influential Washington law firm.
While Republican recount veterans ended up with the lion’s share of high-profile jobs, Yeomans says it’s likely because Bush won, not because lawyers on Gore’s side were any less talented.
“The Florida recount attracted some of the leading legal talent that had political inclinations at the time,” says Yeomans. “I think that was true on both sides. It doesn’t surprise me that Justice Roberts and Justice Kavanaugh both would have been there because they were both leading players on the conservative legal movement” and the Bush-Gore fight was fertile ground.
“Ron Klain, who played a leading role on Gore’s recount team, went on to become Vice President Biden’s Chief of Staff,” says Morley, the Florida State law professor. He also points out that Obama tapped Klain as the administration’s “ebola czar,” a role that required him to coordinate several government agencies to keep the potentially deadly disease under control in the U.S. He left the West Wing role in 2015 to praise from both sides of the aisle.
Klain’s Florida recount colleague, Bauer, “played a major role on the Gore recount team and later became White House Counsel under Obama,” says Morley.
While the ongoing disputes over the 2018 midterm vote in Florida is likely to produce a behind-the-scenes operative who may emerge to prominence, there’s at least one foot soldier from 2000 who’s heading back into the fray.
“Barry Richard, who represented Bush in the Florida Supreme Court, is representing Gillum,” Yeomans says.
