Bush v. Gore Revisited
By Stephen Murdoch

Photographs by Howard Ehrenfeld

During 36 mad days at the end of 2000, two teams of lawyers became embroiled in one of the most significant and controversial battles in American politics. The scene was Florida and the prize was 25 electoral votes. Riding on the outcome was the next presidency of the United States.

The lawyers were making history and they knew it. Not since Republican Rutherford Hayes of Ohio faced Democrat Samuel Tilden of New York in 1876 had there been a battle so intense, and most lawyers involved felt sure they would never see one like it again.

The elections of 1876 and 2000 bear similarities, both real and superficial. Both times the Democrats won the popular vote (but lost the election) and Florida’s electors were contested. Perhaps more significantly, institutional bodies composed of members appointed by Democratic and Republican politicians ultimately resolved each dispute. Congress brought the Hayes–Tilden crisis to a close by creating a putatively nonpartisan commission comprising 10 members of Congress and five Supreme Court justices. Originally, there were to be seven Democrats, seven Republicans, and one independent, but the independent declined to serve on the commission. A Republican replaced him, tipping the balance eight to seven for the Republicans, and after much political wrangling in the House and Senate the presidency went to Rutherford Hayes.

One striking difference, however, between Hayes–Tilden and Bush–Gore is that in 1877 the political parties reached a compromise to end the electoral dispute. In exchange for gaining the presidency, the Republicans agreed to end Reconstruction formally and withdrew the last of the remaining Federal troops from the South. In 2000 the Democrats simply lost the White House. There were no concessions. In fact, it’s still not clear what they gained. Perhaps nothing—not even a sense of being aggrieved, which can be so helpful in motivating political troops.

Many liberals around town, bruised and outboxed, have not forgotten the events of 2000. They remain disgruntled at Republican Party tactics, bad decisions made at the top of the Democratic Party, and a U.S. Supreme Court that inappropriately intervened in a state’s election process. But if the 2002 federal election is anything to go by, the feeling of being wronged has not galvanized the Democrats. In part this may be due to the outside world’s rough intrusions and our responses since the 2000 presidential election. Graver events have supplanted everyone’s memories of the election; the nation’s security looms larger than Al Gore’s push for manual recounts and George Bush’s successful opposition.

Democrats might also feel their party is partly responsible for the lost election, depriving them of any sense of mistreatment at the hands of a foe. Vice President Gore was not a compelling enough candidate and the campaign, including the recount effort, was not pursued aggressively enough.

This may or may not be fair, but almost two and a half years after Bush v. Gore, the parties’ top lawyers revisited the decisions that eventually led George W. Bush to the White House, allowing us to consider if Republican strategy was better than the Democrats’ or if Bush’s victory was simply inexorable.

Battle Lines Are Drawn
Former secretary of state James Baker went to bed in Texas on November 7 with the election still in doubt. He did not begin to think about what the Republican response to Vice President Gore’s refusal to concede defeat should be until he received a telephone call the next morning from Don Evans, Governor Bush’s campaign chairman, and then later a call from the candidate himself, asking Baker to head up the Republicans’ post–Election Day efforts. Baker quickly made his way to Florida and found his forces thin on the ground. He met in the conference room of the state Republican Party in Tallahassee with Ben Ginsberg, the Bush campaign’s general counsel, and half a dozen Florida lawyers. They put out word to bolster their troops and to gather intelligence.

Soon thereafter Baker organized his lawyers into five areas (with Ginsberg overseeing them)—an effort that would stand him in good stead for the rest of the 36 days. Theodore Olson took control of federal litigation; Barry Richard (a well-known Florida lawyer) headed the state litigation effort. A third group handled legal strategy, a fourth covered the canvassing boards, and a final group dealt with overseas ballot issues. Baker early on, with the help of other veteran lawyers including Ginsberg, foresaw the main legal issues ahead and structured his organization accordingly.

Vice President Gore’s top advisers, too, did not know exactly what to do after Election Day. At a meeting in Gore’s headquarters in Nashville, Washington lawyer John Hardin Young, unknown to many of the Democrats’ top brass at the time but an experienced recount specialist, emphasized one of the golden rules of recounts: the candidate behind in the votes—as Al Gore was—wants the recount to be as broad and inclusive as possible. The Democrats’ first task, though, was to find out what had happened on Election Day.

“You have to gather the information. You have to get on the ground, look at the machines, look at the tally sheets, talk to the people who were there on Election Day. Recounts only succeed if you find out what happened,” Jeffrey Toobin, in his book Too Close to Call, quotes John Young telling the gathered campaign workers.

Experienced lawyers in Gore’s camp, such as Ron Klain, knew too that in all massively complex cases the first task was to gather facts. William Daley, Gore’s campaign manager, dispatched Klain to Florida to oversee the initial information-gathering process. Klain and a plane full of lawyers and young Democrats left from Nashville that day.

Remembering the events more than two years later, Klain says the Democrats’ fact gathering during the first couple of days in Florida paid off, revealing three types of lost votes. First, they believed some people had actually been prevented or deterred from voting. They received reports of people wrongfully stricken from voter rolls and heard rumors of various efforts to suppress voter turnout, but the Democrats were never able to investigate these reports adequately. Besides, even though Gore’s lawyers thought these wrongs could win the “crispest” legal remedies, these remedies tended to be future-oriented, such as enjoining wrongs in elections to come. And although the Gore camp, says Klain, cared “philosophically” about future elections, they were most concerned with winning the present one. Not surprisingly, they looked to the other two types of lost votes.

A second group of voters had had their preferences tabulated for the wrong candidate. The best example of this was the people who voted for Pat Buchanan in the Democrat-dominated Palm Beach County because of the butterfly ballot (Buchanan received 6,500 votes in that county, totaling more than all his votes in the other 66 counties combined). Warren Christopher (brought in from Los Angeles to oversee the recount effort), Daley, Klain, and Mitchell Berger, a Florida lawyer, discussed suing over the butterfly ballot, but Young and his recount colleague Chris Sautter maintained that close elections are won by recounts—the broader the better—and not lawsuits. Besides, the gathered lawyers realized that the courts were very unlikely to redistribute votes based on voting statistics or affidavits from voters claiming to have misvoted. Thus, for this group there was no remedy to be had at all.

Sensing the inefficacy of the first two scenarios, the Gore campaign then focused on people who had voted but not had their preferences tabulated. Of these there were two types: those who had voted for more than one presidential candidate (overvotes) and those who had voted for none at all (undervotes). The remedy for these votes was not a lawsuit, but manual recounts—a review of the ballots by human beings, rather than machines—to discern the intent of each voter.

Young and Sautter pushed to do a statewide recount, but Christopher, Daley, and Klain felt the mechanisms were too cumbersome and the political risks too great. To do a statewide manual recount, they noted, Florida law required the Democrats to prove to the canvassing boards in all 67 counties that there had been an error in vote tabulation in Palm Beach County. The Democrats worried they did not have evidence of errors in all the counties and therefore it was politically dangerous to request recounts in all of them.

“I think some of us were concerned that by asking for [a manual recount] in counties where we did not have the evidence [of vote tabulation error], we might dilute our claim to get it in the counties where we did have the evidence,” says Klain. “We had four—at least four—counties where we had very strong cases that there had been errors in vote tabulation.”

The Democrats also worried that with 67 petitions throughout the state their resources would be spread too thin and the returns, if any in some counties, too meager for the effort. In the end, the Democrats decided to focus on four strongly Democratic counties with large numbers of undervotes and clear vote tabulation errors: Miami-Dade, Volusia, Broward, and Palm Beach.

Meanwhile, the Republicans were worried about the votes they had lost in Florida’s required machine recount. Florida law stipulated that votes be recounted automatically by machine if one candidate is ahead by .5 percent or less. Almost six million votes were cast in Florida, meaning a margin of about 30,000 or less would have prompted an automatic machine recount. After Election Day, Bush led Gore by just 1,784 votes, well within the margin, and by November 9 the automatic machine recount had reduced Bush’s lead to just 327 votes. James Baker and his troops were determined to lose no more ground in manual recounts.

The Democrats did not abandon the idea of statewide recounts entirely, however, but instead of exercising their legal right to ask for recounts in all 67 counties, they opted for a political strategy. On November 15, eight days after Election Day and while Florida’s secretary of state, Katherine Harris, was attempting to stop the manual recounts from being included in the election results, Vice President Gore went before a national television audience and proposed two solutions to his opponent. First, if the recounts currently under way were allowed to continue to completion, the Democrats would not file suit, regardless of the outcome. If that did not suit Bush, Gore said, then the Democrats would agree to a manual recount of the whole state.

The Republicans never seriously considered the idea. To Ginsberg, Gore’s televised appeal was simply an effort by the Democrats to “recoup” after they realized that asking for recounts in only four counties was “an obviously flawed strategy.”

Baker says Gore never really asked for a statewide manual recount, anyway. “Vice President Gore’s people asked that there be a recount in four solidly Democratic counties. [The Gore campaign] made a major blunder because it gave us the moral high ground to say, Wait a minute, what’s fair about recounting in four major Democratic counties?” he says.

For Baker too many votes had been lost already. He was not going to agree to a statewide recount, or any recount, and the Gore camp was left with the legal options it had chosen and their unsuccessful consequences. The Republicans went to the mats on the issue of recounts, expounding upon the evils of manual recounts in their public comments.

“[I]f you go back to my press statements during that period, I make the point that manual recounts open the door to mischief because of human nature. People are subjective,” says Baker. (Ironically, in May 2001 the Republican-controlled Florida legislature passed a law requiring ballots in future close elections to be recounted by hand.)

This argument against manual recounts in particular galled the Democrats. Klain argues that machines can crunch large numbers quickly, but humans are better at judging close factual situations and better at arbitrating disputes. “There’s nothing in our lives where we’re prepared to accept the idea that we’d rather have the machine outcome than human judgment,” he says. “I’ve never seen it. Whether or not it’s a mistake on your tax return, or your credit bill, or your water bill, or whatever.”

The Republicans also hammered away at the fairness of “asking for manual recounts only in the counties where [the Democrats] controlled the majority of people who were doing the counting. That was never in any way, shape, manner, or form designed to be a fair process to see what the votes were. It was designed to change the votes,” says Ginsberg.

In the public relations war, the Democrats were never able to refute successfully the Republicans’ spin on manual recounts or surmount Republican tactics to stop them. Although Ginsberg adamantly denies it, commentators have argued that the Republicans filed suit in federal court in part simply to tarnish the Democrats’ recount efforts. “We would never file a suit for public relations purposes,” says Ginsberg.

The Republicans also brought out street protesters—a tactic the Gore campaign found distasteful—in Texas, Florida, and Washington. In Miami-Dade, Democrats still feel the actions of Republican protesters were brought to questionable, if successful, heights. There scores of young Republican Hill staffers, a few politicians, and activists from the Cuban community may have contributed to the canvassing board’s decision to stop their manual recount. In what became infamously known as the “Brooks Brothers Riots,” protesters harassed Democrats and county workers by pounding on doors, manhandling people, and loud sloganeering.

“I think the Miami-Dade board of canvassing was intimidated out of completing the manual recount. I think that was wrong,” says Klain.

Baker is reticent about the event. “Well, I’ve heard [the Democrats] express that opinion and I guess that’s their view,” he says.

More forthcoming, Ginsberg notes that the Miami-Dade canvassing board itself said it was not intimidated into stopping the hand recounts. Moreover, “the notion of being intimidated by a bunch of Republicans wearing tassled loafers is amusing at best,” he says.

Getting a Fair Shake
Litigation was ultimately the most successful tool in James Baker’s kit. The Republicans cobbled together an incredible litigation team with some of the best legal minds in the country. Baker, Ben Ginsberg, Robert Zoellick, Michael Carvin, Theodore Olson, and scads of other smart and highly experienced lawyers attended legal planning and brainstorming meetings. These gatherings included a number of former U.S. Supreme Court clerks, of whom Bush counted about two dozen in his ranks.

“I mean it truly was an amazing array of people,” says Ginsberg. He describes the meetings as “fascinating legal bull sessions. Everybody would throw their ideas on the table, people shot down ideas, bolstered ideas; ideas came full circle.”

Though fascinating, the hours were long and the pressure enormous. “Enjoyable in retrospect,” says Ginsberg, “at the time the whole thing felt like a root canal.”

This gathering of talent, coupled with Baker’s political experience and knowledge, was unbeatable. From the outset Baker believed that the Republicans would not get a “fair shake” before the Florida Supreme Court.

When Baker was secretary of the treasury during the Reagan administration, he worked with Senator Lawton Chiles, a Democrat from Florida and chair of the Senate Budget Committee. Despite hailing from different political parties, the two men formed a friendship based on hunting wild turkeys; Chiles would invite Baker to Florida to hunt and Baker would host Chiles in Texas. Thus, when Chiles was later governor of Florida, in the 1990s, Baker learned of the types of lawyers being appointed to the bench.

“I knew Dexter Douglas, who was [Chiles’s] right-hand man for judicial appointments, and I knew the nature of the attorneys that had been appointed by Lawton to the Florida Supreme Court,” says Baker.

Indeed, by 2000 Democratic governors, including Rubin Askew and Bob Graham, had appointed all of Florida’s Supreme Court justices. The result was a court out of step with a conservative state that took decidedly liberal stances on issues like abortion and the death penalty.

This knowledge of the Florida court’s makeup helped shape Baker’s strategy during the recount effort of 2000. “Early on I concluded that it was really important—if we could do so—for us to find a way to get into federal court, or get a federal court to look at this question,” says Baker.

Consequently, Theodore Olson brought suit in federal district court in Miami claiming that voters’ due process and equal protection rights had been violated. Florida law, the Republicans claimed, was too vague when it directed manual recounts to discern the voter’s intent. There was no way to review the ballots consistently under this standard and it therefore violated constitutional guarantees of due process.

The vague standard also violated the equal protection clause because counties could apply different standards from one another. In addition, only certain counties were being recounted, leaving the uncounted counties out of the final tally, also in violation of the equal protection clause.

The Republicans’ decision to sue in federal court just days into a state election process caught Warren Christopher off guard. “It seemed to me to be inconsistent with their whole stance of states’ rights. And to go immediately to the federal court did surprise me,” he says.

The Republicans’ federal lawsuit drew substantial criticism not just from the Democrats, but from the right wing of the Republican Party as well. To Baker, though, criticisms like these tended to be from “philosophical political writers who didn’t understand the lay of the land.” Under Baker the Bush campaign was unwaveringly real politics.

The Republicans eventually failed to persuade the federal district court and the Eleventh Circuit to enjoin the recounts, the latter court finding that there was no irreparable harm to Bush, who (by December 6) had been certified by Katherine Harris as the winner of Florida’s electoral votes.

Whether or not the Republicans got a “fair shake,” the Florida Supreme Court, too, held for Gore. The court first decided that manual recounts could continue in three counties and later unanimously found that Harris had abused her discretion in excluding the manual recount tallies submitted after November 14. Displeased, the Republicans felt the court ignored the factual record established at the trial court level and “changed the election rules to what appeared to be a preordained result,” says Ginsberg. As a result, the manual recount was allowed to continue “under the sort of hodgepodge of inconsistencies that was true in the counties.”

As everyone expected, the Republicans appealed the Florida Supreme Court opinion to the United States Supreme Court.

Time Runs Out
Republicans emphasize that they had no inside knowledge that the Supreme Court would intervene. Solicitor General Theodore Olson, who argued for Bush before the Supreme Court, notes that the Court has a lot of discretion as to whether or not to take a case, and the Republicans were not in the know. “[L]et me make it clear that I think we knew at the exact same moment that [the Democrats] did. That is to say, when the Supreme Court granted certiorari in the first case,” says Olson.

Nevertheless, some former Supreme Court clerks on the Republican side believed it was a distinct possibility the Court would weigh in, as did James Baker. They were more confident, at least, than the Democrats, who figured the Republicans would appeal the Florida Supreme Court decision, but did not believe the U.S. Supreme Court justices would accept the case. “I was quite surprised by their decision to grant cert,” says Klain.

Not all Democrats were surprised. From the outset Warren Christopher thought the Supreme Court might take the historically significant case. “I thought that the Supreme Court of the United States might sense that this was a matter that they should get into, despite the fact that the Court on many occasions has left the state voting procedures to the states,” he says.

Olson, who had represented Bush before the district court and the Eleventh Circuit, argued, among other things, that by allowing vote tallies to be counted after November 14, the Florida Supreme Court had improperly legislated, rather than interpreted, state law. The Florida court’s decision therefore violated article II of the U.S. Constitution, which grants to state legislatures—not state courts—the power to determine the manner of choosing electors.

The Supreme Court was troubled by Olson’s arguments and wanted to hear more from the Florida Supreme Court. On December 4, in Bush v. Palm Beach County Canvassing Board, the Court unanimously remanded the case to Florida for clarification, to see what law the state court was relying on. The Florida Supreme Court, however, was busy working on an appeal from Vice President Gore’s election contest that had worked through the state court system, and did not expressly respond to the U.S. Supreme Court until December 11. In the meantime, on December 8, the Florida court decided 4 to 3 that all of Florida’s undervotes (instances where no vote for president had been picked up by the machines) would be recounted by hand.

The decision “shocked and surprised” the Republicans, who were incredulous that the Florida court would “thumb . . . their noses at the United States Supreme Court,” says Ginsberg. Moreover, by ordering statewide recounts without guidance to the counties, the court was simply multiplying the inconsistent counting procedures. The Republicans appealed from yet another adverse Florida opinion to the Supreme Court, this time with more dramatic effect.

The next day, December 9, the statewide manual recount began, only to be stayed by the five so-called conservative members of the Supreme Court: William Rehnquist, Antonin Scalia, Clarence Thomas, Sandra Day O’Connor, and Anthony Kennedy.

For Christopher it was this decision to stay rather than the first decision to grant cert that was surprising, although he is quick to point out that he did not think the Court acted improperly. “I thought the matters were being handled by the state court. . . . Ordinarily, the federal courts have left the state procedures to be binding ones. Nevertheless, this was a United States presidential election with the results of great importance,” says Christopher.

On the Saturday afternoon of the stay, Gore’s core team—Christopher, William Daley, Walter Dellinger, and Ron Klain—spoke with the vice president via conference call to decide who should represent the candidate before the Supreme Court. Although Laurence Tribe had argued for Gore in Bush v. Palm Beach County, Gore was leaning toward David Boies to argue for him the second time around. A majority of the vice president’s legal team thought the switch in lawyers was a good idea.

In part Gore’s lawyers were frustrated at the outcome of Bush v. Palm Beach County, but they also thought that Florida law and the facts of the recounts were central to their states’ rights arguments. And Boies, because he had represented Gore in Florida, had a better understanding of these facts than Tribe. Boies’s mere presence, they thought, would represent to the Court that these were state matters, which Tribe’s presence, as a famous constitutional scholar, would not.

Klain disagreed, feeling that the team should stick with Tribe, who had much more experience than Boies before the Supreme Court. Indeed, the one time Boies had appeared before the Court he lost: to Laurence Tribe, who was opposing counsel.

The ultimate decision, of course, was Gore’s, and he felt Boies was the man for the job. Ever the statesman, Christopher thought the bad news should be delivered in person to Tribe, who was working on the Supreme Court brief while staying at the Watergate hotel.

Luckily, Tribe made Christopher’s self-appointed job as hatchet man easy. “I thought [Tribe] handled it extremely well. He was very professional about it. . . . Naturally he was disappointed, but I thought he handled it in a very high class, professional way,” says Christopher.

True to style, George Bush stayed faithfully with Theodore Olson, who had represented him in the lower federal courts. Boies had just one day to prepare for oral arguments, and nobody on the Gore legal team, regardless of whom they thought should argue for them, was very optimistic about his candidate’s chances before the Supreme Court. After all, in issuing the stay, five justices had decided that Bush’s case had a substantial likelihood of success on the merits.

Even the audience gathering in the Supreme Court appeared to agree. According to Jeffrey Toobin, before oral arguments in Bush v. Palm Beach County, there was a sense of import and excitement for those in the crowd. Before arguments in Bush v. Gore, however, the tenor had decidedly changed “to a sullen hum. It had once seemed possible that the Supreme Court would rise above the partisan rancor of the post-election battle,” Toobin writes in Too Close to Call, “but after issuing the stay on Saturday, the Court was no longer a place apart from the political struggle; it was simply another venue.”

Gore’s decision to go with Boies over Tribe probably did not affect the outcome. Ultimately, the five justices who stayed the Florida Supreme Court decision ordering manual recounts, with the addition of Justices David Souter and Stephen Breyer, found the recount process in Florida to violate the equal protection clause of the Fourteenth Amendment. Tribe may not have been able to influence those justices, either.

Lawyers and commentators still debate whether the decision was politically motivated—a question that is likely to be debated without resolution for quite some time. Unlike in the aftermath of the Hayes–Tilden conflict, passions have not been allowed to cool with the passage of time.

Many Republicans describe the opinion as 7 to 2, which would make the decision appear less political. “I hope if you’re writing a piece on this,” says James Baker, “you will undertake to report accurately that the United States Supreme Court’s decision was 7 to 2 on constitutionality. . . . It’s amazing to me how many people like to report this as a so-called 5 to 4 political . . . decision of the United States Supreme Court.”

The Court may have divided 7 to 2 on constitutional analysis, but when it came to remedy—the decision to stop Florida’s recounts—the old, familiar fault lines emerged. Justices Rehnquist, Scalia, Thomas, O’Connor, and Kennedy decided that by December 12 time had run out for the Florida recounts, leaving Bush as the victor. For Democrats the decision to stop the recounts was more important than constitutional analysis.

“The fact that the Court kind of split on the question of doctrine 7 to 2 wasn’t really that interesting to us, compared to a 5 to 4 decision that said, Thou shall not count,” says Klain.

Nevertheless, the Democrats do not say they believe Bush v. Gore to be a political decision. John Young thinks the Court is simply not designed to make factual determinations, especially about events that are evolving as the justices are making their decisions. “[The justices] are like reporters: they basically take the facts as are told to them,” says Young. “With one difference between a Supreme Court justice and a reporter. A reporter can call around until you think you got it right. The Supreme Court does not call around to figure out if it got it right.”

Young thinks the justices panicked slightly over the troubled administration of vote counting in Florida. He likens the situation to a house fire, with the Supreme Court thinking “they needed to step in as the judicial firemen. Had they simply let the local firemen take care of it, they would have realized that they probably did not need to take the steps that they took. I think you are hard-pressed to accuse the Court of anything other than not being in touch with reality.”

Democrats nationwide were upset with the Supreme Court. They felt the Rehnquist court had not favored the equal protection clause until it mattered to a conservative presidential candidate and the conservative ideal of states’ rights had been discarded when it was not needed.

To the Republican lawyers who represented Bush, though, these sentiments were “incomprehensible.” To Olson, in particular, they made no sense: “The road map was right there” for the Democrats to see all along in the form of a strong precedent in the Eleventh Circuit involving the Alabama Supreme Court. “And the Court had from time to time over its entire history been sensitive to constitutional violations in connection with presidential elections.”

Warren Christopher will only say that the Court’s decision “was an unprecedented use of the equal protection clause.” He refuses to characterize the decision as political, simply stating, “The Court may have conscientiously thought that a result had to be reached and that was the soundest basis for reaching the decision.”

In Retrospect
In hindsight the Democrats’ decision not to request a recount statewide may have proved fatal, but there is no guarantee that such a strategy would have been successful. James Baker masterfully blended legal strategy, street protests, and public relations efforts to shut down the Democrats’ recount efforts, and his well-marshaled forces would have conceived of different strategies if Gore had gone to all 67 of Florida’s counties.

Al Gore and his top advisers—Christopher and Daley in particular—have been criticized as lacking aggression and being pessimistic from the start. In response to such criticisms Christopher simply states, “I was neither optimistic nor pessimistic. I wanted us to approach the matter . . . by being aggressive but reasonable and ethical. I suppose that might be taken for being pessimistic, because I always had the sense that we needed to follow the flow of law the best we could and try to achieve a reasonable, fair outcome.”

How a campaign is run is ultimately up to the candidate. Al Gore reputedly micromanaged and worried too much about how his recount strategies were being perceived across the nation. At the same time, Gore decided not to take potentially helpful steps if he thought they were wrong. For instance, he decided not to challenge absentee ballot applications in Seminole and Martin counties that had been incorrectly filed by thousands of Republicans and later fixed by party workers (they added required voter identification numbers). Had these absentee ballots been tossed out, Gore would have been well ahead in the vote tallies. Yet in his election contest complaint filed after Thanksgiving, Gore decided not to challenge them because he thought such action would have been inconsistent with his stance of “count all the votes.”

“There were some things Vice President Gore was unwilling to do even if that’s the difference between winning and losing. That’s his choice and it’s a choice I respect,” says Klain.

The Republicans seemed more desperate to win. They may have simply been hungrier for a return to the White House after eight years on the outside, but some of them also felt aggrieved from previous wrongs. From the beginning of the recount effort, Ben Ginsberg, for one, distinctly remembered “Indiana Eight,” a 1984 recount fight over the Eighth Congressional District in Indiana. After an extremely close election and politically charged recount, the Indiana secretary of state certified the Republican candidate, who had ended up ahead in the vote tally. Nevertheless, in blatant political maneuvering congressional Democrats refused to recognize the candidate and months later voted to instate the Democratic contender instead.

“I think to an extent we had an election stolen from us in ’84, and so we were bound and determined not to have that happen again,” says Ginsberg.

The Republicans also had logistical and political advantages, although it’s difficult to determine how much these mattered. Katherine Harris acted like a partisan and Florida had a Republican governor and legislature. As Baker says, “The majority of canvassing boards in Florida were dominated by Democrats.”

Moreover, unlike the Republicans, the Democrats did not have the support of any one major law firm from which to work, leaving Ron Klain to form a cyber–law firm from a scattered group of lawyers. Klain himself discounts the importance of this (though he did find it logistically challenging to manage Gore’s legal team), stating that both candidates had amazing legal talent that could not be found at any one firm.

“I think the Bush folks also grafted a lot onto Baker Botts,” says Klain, speaking of James Baker’s law firm in Houston. Theodore Olson, for instance, was not at that firm, so in the end the two legal operations were not that dissimilar. “The folks we had, there just is no one law firm in America that has that kind of talent. I thought it was just a very, very good team,” says Klain.

In the final analysis, it is hard to point to Republican advantages in the singular or aggregate that explain the party’s success. No one advantage is as important as who sat on the bench and where, and Baker deserves much of the credit for taking his candidate to a court that would, unlike the Florida Supreme Court, give his candidate a “fair shake.”

Thirty to 40 Republican lawyers have celebrated their victory by gathering together for dinner once a year since Bush v. Gore to swap war stories and keep in touch. Many of them now have jobs in the Bush administration, their loyalty during the recount battle noted and rewarded. As Ben Ginsberg says, “Recounts end up pointing people in new directions.”

After Indiana Eight, Ginsberg left his law firm and became in-house counsel to the National Republican Congressional Committee, and that led to other political positions. “That was certainly true of other people in Indiana and that was certainly true of a lot of people in Florida,” he says.

The Democrats, in contrast, have returned to private practice and lower profile cases, but not one of the Democrats interviewed says he felt resentful over their defeat. As the veteran lawyer and statesman Warren Christopher says, “I leave for others to be bitter. Lawyers have to learn how to lose cases.”

Stephen Murdoch wrote about the legality of preemptive war in the January issue.