How Amy Coney Barrett played a role in Bush v. Gore — and helped the Republican Party defend mail ballots

Amy Coney Barrett was just three years out of law school, a 28-year-old associate at a boutique Washington law firm, when she was dispatched to Florida to help George W. Bush’s legal team rescue thousands of Republican absentee ballots.

The litigation was a sidebar to the central drama of the 2000 presidential contest, but a loss in the case could have cost Bush the presidency.

At issue were thousands of absentee ballot request forms in Martin County — just north of Palm Beach County, home of the notorious “butterfly ballot” — that had missing voter registration information.

After county officials allowed the GOP to take the forms back and fill in the missing information, a Democratic voter sued, saying ballots cast by those voters should be tossed out. The county canvassing board, the Florida Republican Party and the Bush campaign argued that the votes should still count.

Barrett’s work on the case serves as a reminder of how aggressively the Republican Party has sought to harness mail voting for years, in contrast to President Trump’s relentless attacks on the practice.

This year, the Trump campaign and Republicans in Iowa have pushed to invalidate tens of thousands of absentee ballot applications with missing information that had been filled in by county officials.

“It’s the very antithesis of what we were arguing to the courts back then,” said Daryl Bristow, who represented the Bush campaign in the Martin County absentee ballot case and a related suit in nearby Seminole County. “We were trying to keep voters from being disenfranchised.”

As both parties brace for the possibility of another contested election that Trump has suggested could go to the high court, the previously unreported role of his Supreme Court nominee in the absentee ballot fight is more than a historical footnote. Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh also played a role in Bush v. Gore — meaning that if Barrett is confirmed, three of the nine justices will have participated in litigation related to the only presidential contest to be decided by the high court.

“Here we are, two decades after Bush v. Gore, and it’s as if it was yesterday,” said Daniel Smith, a University of Florida political science professor. “It divided the nation 20 years ago, and it’s amazing how it continues to be a specter in national politics.”

In the U.S. Senate questionnaire she submitted late last month, Barrett said she spent a week in Florida contributing research and briefing assistance on Bush v. Gore, but provided no specifics. Court records show that she is on the list of lawyers who were served with filings in the Martin County case, indicating her involvement in that suit.

Barrett did not respond to a request for comment made through the White House and has not publicly discussed her precise duties in the Martin County case. In her Senate questionnaire, she said she worked in Florida with Stuart Levey, a partner in the Washington law firm Miller, Cassidy, Larroca & Lewin, who was part of the Bush team battling to keep the Republican mail votes. (Miller Cassidy merged with the venerable firm Baker Botts the following year.)

Levey declined to comment.

First in her law school class at Notre Dame and a former clerk for Supreme Court justice Antonin Scalia, Barrett fit the profile of the kind of up-and-coming conservative lawyer the Republican Party recruited to parachute into Florida to help in the hotly contested recount.

Amy Douthit Maddux, a junior lawyer on the Bush team who remembers communicating with another lawyer named Amy on the case, said, “It was just exciting to be able to work on something of such importance as a very young lawyer, and given the speed with which things were happening, everyone was relied upon.”

The Martin County plaintiff, Ronald Taylor, was seeking to capitalize on a glitch in the state Republican Party’s absentee ballot program.

Request forms sent by the party to Republican voters mistakenly omitted their voter registration numbers, leading those requests to be set aside by the Martin County elections office. The county elections supervisor allowed a local Republican Party official to take the incomplete request forms, add the missing numbers and return them the following day, according to court filings. GOP voters who had used the request forms to seek absentee ballots were then able to receive them. 

The Democratic plaintiff argued those votes were tainted. “It was a sinister underground conspiracy,” argued his attorney Edward Stafman, according to newspaper accounts.

Along with the similar lawsuit in nearby Seminole County, Democrats were trying to nix roughly 25,000 absentee votes in a contest in which Bush was leading by 537 votes.

Leon County Circuit Judge Terry Lewis listens as George W. Bush’s campaign lawyer Barry Richard, left, speaks during a hearing on Dec. 6, 2000, in Tallahassee
Reporters and spectators gather outside the Florida Supreme Court to hear the court’s decision in the presidential election recount case on Dec. 8, 2000 in Tallahassee.

Back-to-back trials were held in Leon County Circuit Court in Tallahassee. The judges issued a joint statement: “Despite irregularities in the requests for absentee ballots, neither the sanctity of the ballots nor the integrity of the election has been compromised, and . . . the election results reflect a full and fair expression of the will of the voters.”

Democratic presidential nominee Al Gore, whose campaign was making the case that every vote must be counted, did not join the lawsuits.

“It tells you that sometimes what goes around comes around,” said veteran GOP election lawyer Benjamin L. Ginsberg, who served as national counsel for the Bush campaign, and noted that Democrats this year are fighting to expand which mail ballots are counted. “You have to admire the irony of the moment since that is not consistent with the position [Democrats are] taking now.”

The Martin and Seminole County plaintiffs immediately appealed to the Florida Supreme Court as the clock ticked toward the deadline for the state to appoint its 25 presidential electors. “It was a crazy, crazy kind of schedule,” said Mark Miller, then a colleague of Barrett, who recalled scrambling with her from Washington to Orlando to assist the Bush campaign.

The same day the U.S. Supreme Court essentially handed the election to Bush by putting a stop to manual recounts in the state, the Florida Supreme Court upheld the trial court’s decision in the Martin and Seminole County cases.

“It was a no-brainer on the law,” Maddux said. “There was no proof anywhere that the people who voted should not have voted. But they were important cases because had it gone south, it would have been enough to change the results.”

Along with young lawyers like Barrett, the GOP pulled in seasoned constitutional experts for help in Florida.

Roberts, a then 45-year-old who had worked in the White House and argued dozens of cases before the U.S. Supreme Court as a partner in a Washington law firm, was summoned to Tallahassee to advise the Bush campaign and prep a lawyer appearing before the Florida Supreme Court.

That lawyer was Michael Carvin, a Washington-based voting rights expert, who said Roberts’ legal skills and grasp of constitutional issues were prized in the early weeks of the election dispute.

Bush-Cheney witness Laurentius Maris, a statistician, is questioned by attorney Phil Beck during the trial on Dec. 3, 2000, in the Leon County Court House in Tallahassee.
Michael Carvin and Barry Richards, lawyers for Republican presidential candidate George W. Bush, confer before their oral arguments to the Florida Supreme Court on Nov. 20, 2000, in Tallahassee.

The Bush campaign was opposing Democratic efforts to extend the recount in Palm Beach County and arguing that the Florida secretary of state had the authority to declare a winner seven days after the election. Lawyers hunkered down at the Republican Party’s headquarters in Tallahassee worked frantically to submit the brief to the Florida Supreme Court on a Sunday evening. “It was bedlam,” Carvin recalled.

To prepare for court the next day, Carvin, Roberts and a handful of others adjourned to attorney Barry Richards’s Tallahassee law office. In the relative quiet of a conference room, Roberts helped Carvin hone his responses to questions he expected from the state court judges, Carvin recalled.

“It wasn’t brain surgery,” he said, adding that the legal issues were straightforward. But he said having Roberts on hand was helpful not only for that moment, but in anticipating future legal developments.

Carvin said he and Roberts correctly guessed that Bush would lose that state court skirmish over the Palm Beach County recount. But while preparing for that battle, they developed a strategy that would raise the federal issues that would assure a later review by the U.S. Supreme Court, he said. 

Roberts returned to Tallahassee in December to offer counsel to then-Gov. Jeb Bush, who was in the crosshairs as his brother’s leading campaign surrogate and the chief executive of a state facing an election meltdown.

In an email to The Washington Post, Bush said he had asked his top legal advisers “to find the best constitutional lawyers to brief me on my Constitutional duties as Governor . . . I recused myself from responsibilities regarding state law but I had ministerial duties I wanted to do correctly.”

Frank Jimenez, then acting general counsel to Gov. Bush, said he recommended Roberts on a suggestion from Dean Colson, a prominent Miami lawyer who had co-clerked with Roberts for Supreme Court Justice William H. Rehnquist. The night before the appointment with Bush, Jimenez, a son of Cuban immigrants, took Roberts to Carlos’ Cuban Cafe in Tallahassee for dinner.

During their hour-long meeting, Roberts and Bush discussed two election-related documents the governor needed to sign and send to the National Archives, Jimenez said.

“Thank you for your time today. I really appreciate your input on my role in this unique and historic situation,” Bush said in an email to Roberts released shortly before the governor’s presidential campaign launch in 2015.

Lawyer David Boies, representing Democratic presidential candidate Al Gore, delivers his oral argument from the podium before the Florida Supreme Court on Dec. 7, 2000, in Tallahassee.
Leon County Court administrator Terre Cass reads the decision in the Martin and Seminole County election cases, on Dec. 8, 2000, in Tallahassee. Both judges ruled against throwing out the absentee ballots, a win for George W. Bush’s campaign.

In contrast to Roberts and Barrett, who worked quietly behind the scenes in Florida, Kavanaugh was out in public on behalf of the Bush campaign.

 

Then a 35-year-old partner at one of the nation’s largest law firms and battle-tested from working with independent counsel Ken Starr to investigate President Bill Clinton, he went to Democratic-leaning Volusia County in central Florida to help oversee a manual recount of roughly 200,000 ballots, according to Kavanaugh’s Senate questionnaire. He had been serving as a regional coordinator for the Bush campaign’s coalition of legal supporters.

Unlike in South Florida, where punchcard ballots led to the much-maligned hanging chads, Volusia County used optical scan ballots. Kavanaugh helped direct the Republican strategy of closely scrutinizing ballots where voters had failed to properly fill in the bubble next to a candidate’s name, said Shannen Coffin, another Republican attorney on the ground in Volusia.

Brett was kind of the guy we looked up to,” said Coffin, who later served as counsel to Vice President Richard B. Cheney. “If there was an irregularity in the recount process, he wanted it documented. It was a zealous representation of a client, but not a win-at-any-cost strategy.”

Weeks later, Kavanaugh delivered legal analysis on national television outside the U.S. Supreme Court on the eve of the momentous decision that ended the election morass. He would go on to serve as associate counsel to the new president.

I think what we are seeing is more of a divide over how to interpret the Constitution than really political differences,” Kavanaugh said in the interview with CNN’s Wolf Blitzer. “I don’t think the justices care that it’s Bush versus Gore or if it were Gore versus Bush. What they care about is how to interpret the Constitution, what are the enduring values that are going to stand a generation from now.”

There Should Be No Doubt Why Trump Nominated Amy Coney Barrett

Amy Coney Barrett, whom President Trump has nominated to replace Ruth Bader Ginsburg on the Supreme Court, was born in 1972, so she can expect to spend several decades shaping both American law and American life. As it happens, a year before Barrett’s birth, Lewis F. Powell, Jr., then a prominent lawyer in Richmond, Virginia, and later a Supreme Court Justice himself, wrote a now famous memorandum to the United States Chamber of Commerce, arguing that businesses needed to take a more aggressive hand in shaping public policy. “The American economic system is under broad attack,” he wrote, from, specifically, the consumer, environmental, and labor movements. He added that “the campus is the single most dynamic source” of that attack. To counter it, Powell suggested that business interests should make a major financial commitment to shaping universities, so that the “bright young men” of tomorrow would hear messages of support for the free-enterprise system. A little less than a decade later, a pair of law professors named Robert Bork and Antonin Scalia signed on as the first faculty advisers to a fledgling organization for conservative law students called the Federalist Society for Law and Public Policy Studies. The efforts of the Federalist Society were lavishly funded by the business interests invoked by Powell, and it has trained a generation or two of future leaders. Not all of them have been “bright young men.” Some are women, including Barrett, and her confirmation would vindicate Powell’s plan and transform the Supreme Court.

Barrett made an appealing first impression in 2017, during her confirmation hearings to the federal bench. She and her husband are the parents of seven children. For many years, she was a popular professor at Notre Dame Law School, which she also attended and from which she graduated summa cum laude. She clerked on the Supreme Court for Justice Scalia. As a judge on the Seventh Circuit, she has been a reliable conservative voice. Even liberal peers in the academy find her personable. She will probably do well in providing the artful non-answers that are the currency of Supreme Court confirmation hearings before the Senate Judiciary Committee, just as she did in 2017.

But there should be no doubt about why Barrett has been chosen. Much of the commentary about her selection will focus on the issue of abortion, and her likely role in overturning Roe v. Wade. During the 2016 campaign, Trump repeatedly promised to appoint Justices who would vote to overrule that landmark, and with his three selections, including Neil Gorsuch and Brett Kavanaugh, he appears to have delivered. Barrett is not only a member of a conservative organization within the Catholic Church; her legal writings, and the views of some who know her, suggest that she would overturn Roe.

Still, it’s worth remembering the real priorities of Trump and Mitch McConnell, the Senate Majority Leader, in this nomination. They’re happy to accommodate the anti-abortion base of the Republican Party, but an animating passion of McConnell’s career has been the deregulation of political campaigns. The Supreme Court’s Citizens United decision brought the issue to wide public attention, but McConnell has been crusading about it for decades. He wants the money spigot kept open, so that he can protect his Senate majority and the causes for which it stands. This, too, is why the Federalist Society has been so lavishly funded over the years, and why it has expanded from a mere campus organization into a national behemoth for lawyers and students. Under Republican Presidents, Federalist Society events have come to operate as auditions for judicial appointments. The corporate interests funding the growth of the Federalist Society probably weren’t especially interested in abortion, but they were almost certainly committed to crippling the regulatory state.

Barrett is a product of this movement, and not just because she clerked for Scalia. Her writings and early rulings reflect it. Her financial-disclosure form shows that, in recent years, she has received about seven thousand dollars in honoraria from the Federalist Society and went on ten trips funded by it. But it’s not as if Barrett was bought; she was already sold. The judge has described herself as a “textualist” and an “originalist”—the same words of legal jargon that were associated with Scalia. (She believes in relying on the specific meaning of the words in statutes, not on legislators’ intent. She interprets the Constitution according to her belief in what the words meant when the document was ratified, not what the words mean now.) But these words are abstractions. In the real world, they operate as an agenda to crush labor unions, curtail environmental regulation, constrain the voting rights of minorities, limit government support for health care, and free the wealthy to buy political influence.

It should go without saying that the nomination and the expected confirmation of Barrett in the final days before a Presidential election represent a paramount act of hypocrisy for McConnell and the other Republicans who denied even a hearing to Merrick Garland, President Barack Obama’s choice for the Supreme Court, in 2016. But the fact that these Republicans are willing to risk that charge shows how important the Supreme Court is to them. Far more than a senator, a Supreme Court Justice can deliver on the agenda. The war on abortion is just the start.

Hoping for a Midterm Split Decision

The conservative case for a Republican Senate and a Democratic House.

.. Let me suggest a third option. If you are a conservative who is moderately happy with some of Trump’s policy steps, fearful of liberalism in full power, but also fearful of Trump untrammeled and triumphant, the sensible thing to root for — and vote for — is the outcome that appears most likely at the moment: A Republican majority in the Senate and a Democratic majority in the House of Representatives.

.. The best argument for conservative support for Donald Trump was always defensive: Elect him and you prevent the installation of a long-term liberal majority on the Supreme Court, and perhaps chasten the Democratic Party and arrest its leftward march.

For that argument to persuade, you had to trust the institutional Republican Party’s promise to contain Trump’s authoritarian instincts and restrain his follies. You also had to downplay the long-term damage, to conservatism and the body politic, of putting someone with such poisonous rhetorical habits in the bully pulpit.

.. so far Trump has been more constrained and less destructive than I expected — his foreign policy less destabilizing (so far) than either of his predecessors, his cruelest policy instincts walked back under pressure, the country more prosperous, his appointments more responsible and a large-scale investigation into his possible crimes proceeding, beset by Trumpian insults but otherwise mostly unimpeded by the White House.

To the extent that any Republicans deserve credit for this constraint, though, they are mostly elected Republicans in the Senate. The House is more pure, uncut MAGA, more reflexive in its defense of a president whose behavior is often indefensible, more poisoned by the worst Trumpist tendencies (witness the steady migration of the Iowa congressman Steve King toward an overt white nationalism) and more inclined to allow Trump a free hand should he seek to make his actual presidency exactly like his Twitter feed.

.. So a Democratic House would supply a much more effective check on that temptation, along with more vigorous scrutiny of corruption in the White House, about which congressional Republicans have been studiously incurious. And it would offer that check without jeopardizing any potential conservative legislative achievements — because, let’s be frank, the congressional G.O.P. isn’t going to do anything serious with its power if it gets re-elected except confirm judges, and you don’t need the House to elevate Amy Coney Barrett if there’s one more high court vacancy.

.. for the genuinely populist sort for conservative (that is, the best kind), having a Democratic House might force Trump himself back toward the economic populism of his campaign, which he mostly abandoned but has suddenly remembered in the last days before the midterms, talking up a phantom middle-class tax cut and proposing an “America First” approach to drug pricing.

Given the more favorable Senate map and the possibility of a recession, Democrats can reasonably hope to retake the upper chamber in the next four years no matter what. And it will go much worse for the right if that Democratic majority has 60 seats in that scenario as opposed to 52 — something that will be determined by this fall’s election as much as by what happens two or four years hence.

Of course, if you’re a Trump skeptic who believes that only an earth-salting defeat will enable the re-emergence of a decent right, then trying to constrain a future liberalism will seem less important than rooting for the necessary disaster to arrive for Republicans today. But I don’t think our polarized system lends itself to salt-the-earth defeats anymore, and I also don’t think that parties necessarily emerge from them wiser than before — since in such defeats they’re condensed to their more fervent and often foolish core.

Amy Barrett for the Supreme Court

her membership in an organization called People of Praise. This body, which is not affiliated with the Church or any Protestant denomination, is devoted to so-called “charismatic” spirituality: guitar hymns and a somewhat gushy attitude towards prayer. Nothing could be further removed from the high-and-dry devotional lives of actual traditionalist Catholics, whose responses to the charismatic movement since its inception have tended to range from “Not my cup of tea, thanks!” to accusations of heresy.

.. I fully expect that sooner or later a court of which Barrett were a member would overturn Roe v. WadeThat a woman should be responsible for undoing this legally sanctioned perversion of the most wholesome relationship in nature, that between a mother and her child, seems to me right in a way that is almost ineffable.

.. she asked the absolute sharpest, most penetrating questions. She is scary smart.”

.. Barrett should be nominated by the president and confirmed for the very simple reason that she is a gifted legal mind respected by her colleagues and a person of outstanding character whose presence on our country’s highest court would do credit to the United States and her people.

Kennedy’s Replacement Should Be Judge Amy Coney Barrett

It will be nice to have one woman in the majority when the Supreme Court finally overturns Roe v. Wade.

.. She is the youngest of the five top choices, which is a mark in her favor given that the nominee will have life tenure and Trump will want one who will leave a lasting mark on the law.

.. Her educational history — she went to Rhodes College and Notre Dame Law School — would add a little welcome diversity to a Supreme Court full of Yale and Harvard alumni.
.. Barrett has also recently been through Senate confirmation to a federal appeals court. She won the support of all the Republicans and three Democrats
.. But they will be hard-pressed to argue that she is an extremist given their own recent support... “Dogma lives loudly within you,” Feinstein said, in reference to Barrett’s Catholic faith. Never mind that Barrett had already said that “it is never appropriate for a judge to apply their personal convictions, whether it derives from faith or personal conviction.”

.. Feinstein’s office defended the senator by noting that Barrett had also written, in an article for the Notre Dame Alumni Association, that all people play a role “in God’s ever-unfolding plan to redeem the world” — which is a fairly basic statement of Christian belief that does not imply support for the judicial imposition of theocracy.

.. opposing a woman will probably be more awkward for senators than opposing a man would be. Also, it cannot be good for conservatism that all three women now on the court are liberals.

.. If Roe v. Wade is ever overturned — as I certainly hope it will be, as it is an unjust decision with no plausible basis in the Constitution — it would be better if it were not done by only male justices, with every female justice in dissent.

So pick Barrett, Mr. President. Let the dogma live loudly on the Supreme Court.

 

The Supreme Temptation of Amy Coney Barrett

And Republicans expect — and want — liberals to be so freaked out by thisthat they oppose her in a manner that can be branded anti-religious. They’re setting her up to be a Christian martyr, minus the grisly end, and daring Democrats to take the bait.

.. Aaron Blake sagely sized up the appeal of this dynamic to Trump, writing that it’s “exactly the kind of battle he generally relishes: One that invites his opponents to overreach.” My Times colleague Ross Douthat tweeted that if Trump wants to “trigger the libs,” he’ll nominate Barrett. Douthat further predicted that her nomination “might bring on the culture-war apocalypse.”

.. She’s the most tactically fascinating of the front-runners in several ways. At 46, she’s the youngest, so her time on the court could easily cover four decades. She’s a longtime resident of Indiana, which happens to be home to Joe Donnelly, one of three Democratic senators whose votes are most clearly in play when it comes to confirming Trump’s nominee.

.. She’d be the only justice on the Supreme Court without the imprimatur of the Ivy League, and there’s little whiff of the coastal elites about her. She did her undergraduate work at Rhodes College in Tennessee and then attended law school at Notre Dame

..  her own time on the bench is limited to her eight months on that court.

.. her promoters revel openly in the idea of Roe v. Wade being overturned after the addition of another woman to a Supreme Court that would then have an almost even gender balance of four women and five men.

.. her Senate confirmation hearings after her nomination for the circuit court made her a hero to conservatives, especially religious ones. They took issue in particular with questions that Senator Dianne Feinstein

.. “The dogma lives loudly within you,” Feinstein said