Confirmation Path May Run Through Florida
As the 2000 presidential recount battle raged in Florida, a Washington lawyer named John G. Roberts Jr. traveled to Tallahassee, the state capital, to dispense legal advice.
He operated in the shadows at least some of those 37 days, never signing a legal brief and rarely making an appearance at the makeshift headquarters for George W. Bush’s legal team.
But now Roberts has been selected for the very Supreme Court that put Bush into office by settling the recount, chosen by the president to replace the swing vote in that 5-4 decision. And his work in Florida during that time is coming into focus, giving critics some ammunition to paint a respected jurist with an apparently unblemished legal career as an ideological partisan.
Republican lawyers who worked on the recount said Wednesday that Roberts advised Gov. Jeb Bush on the role that the governor and the Florida Legislature might play in the recount battle. At the time, when GOP officials feared that Democrat Al Gore might win a recount battle in court, Republican state lawmakers were devising a plan to use their constitutional power to assign the state’s electoral votes to George W. Bush -- a proposal criticized by Democrats.
Responding to questions Wednesday about Roberts’ role in Florida, a spokesman for Gov. Bush’s office said that Roberts had been recommended to the governor, although the spokesman gave no further specifics, and that the two had not known each other until the recount. Miami trial lawyer Dean Colson, who met Roberts when both were law clerks for Chief Justice William H. Rehnquist and who was best man at Roberts’ wedding, is also close personally with Gov. Bush.
“Mr. Roberts, one of the preeminent constitutional attorneys in the country, came to Florida in 2000 at his own expense and met with Gov. Bush to share what he believed the governor’s responsibilities were under federal law after a presidential election and a presidential election under dispute,” said the spokesman, Jacob DiPietre. “Judge Roberts was one of several experts who came to Florida to share their ideas. The governor appreciated his willingness to serve and valued his counsel.”
DiPietre went on to call Roberts “a man of integrity” who “personifies the qualities of an outstanding jurist with his even temper and respectful demeanor.”
Critics, though, were quick to say that Roberts’ role in the 2000 election, however minor, suggested that he was not merely the bookish legal scholar described by his supporters.
“What’s interesting is that only now is it coming to the fore that John Roberts was part of that,” said Ralph G. Neas, president of the liberal group People for the American Way. “He always created an impression of being above the political fray, being part of the Washington legal establishment, but not of partisan politics.”
Neas said Roberts’ involvement in the recount was not necessarily a reason for senators to oppose his nomination, because many well-known legal scholars on both sides were called into service during the Bush-Gore fight.
And Roberts had only a bit part, compared with higher-profile players such as Florida’s then-Secretary of State Katherine Harris, who was subsequently elected to Congress, and Gov. Bush, the Republican presidential candidate’s younger brother.
But, Neas added, coupled with Roberts’ past work in the Reagan and George H.W. Bush administrations, the recount could become a factor.
“This is a legitimate area of inquiry: How partisan is he?” Neas asked.
It is not clear how much time Roberts spent in Tallahassee or what exactly he told the governor. Lawyers and others who worked on the Bush campaign’s behalf said Wednesday that they had little, if any, recollection of Roberts from that period.
U.S. Rep. Tom Feeney (R-Fla.), then speaker of Florida’s House of Representatives, said his legal team originated the idea of having the Legislature vote on assigning the state’s presidential electors. The rationale was a constitutional provision that lets state lawmakers decide how electors are chosen, but Feeney said he had no memory of Roberts. He said the House was advised by in-house lawyers and scholars from UC Berkeley and Harvard University.
“I have no recollection of meeting Judge Roberts, either before or after” the recount, Feeney said. “Despite the common mythology that Katherine Harris and Jeb Bush and myself were in some secret room every night making plans, a House attorney came up with the idea within 24 hours of the election. It was us who started that whole deal, in the House.”
One Republican lawyer who worked on the case in Florida said he recalled seeing Roberts only once during the recount, not at one of the bars or restaurants that were mobbed every night with lawyers and journalists, but in the legal team’s office at state GOP headquarters a few blocks from the Capitol.
The lawyer said that although Roberts was not a part of the official Bush-Cheney team, it was not surprising to see him in Tallahassee.
“Every great constitutional scholar in America on both sides wanted to play a role,” said the lawyer, who requested anonymity, citing the sensitivity of Roberts’ pending confirmation hearings. “And we tried to get everybody to play a role.”
Three years later, President Bush nominated Roberts to the U.S. Court of Appeals for the District of Columbia Circuit. His position on that court, often a steppingstone to the Supreme Court, paved the way for Tuesday’s announcement, the culmination of Roberts’ legal career.
Feeney, a conservative, speculated that Senate Democrats might well ask Roberts for his view of the Bush-Gore recount outcome. But he advised Roberts to duck.
“I don’t know that there is any political benefit to answering that question,” Feeney said.
Times researcher Benjamin Weyl contributed to this report.