A Look Back to Bush v. Gore | Opinion

The following essay is an excerpt adapted from Sen. Ted Cruz's new book, One Vote Away: How a Single Supreme Court Seat Can Change History, out now from Regnery.

My being in that room was a happy accident. At the time, I was just 29 years old. Just a few years out of law school, I had clerked for Judge Luttig and the chief justice and had spent two years in private practice. And as it so happened, I was the only practicing litigator on the full-time campaign staff in Austin. What I had practiced, albeit briefly, was constitutional litigation.

As we sat looking at the empty notepad, it was a Field of Dreams-type scenario: "If you call them, they will come." The first lawyer I suggested was my former boss, Mike Carvin. Mike, a brilliant Supreme Court litigator, is the best lawyer I have ever seen at anticipating unexpected questions and seeing around corners in unpredictable litigation. Ben [Ginsberg] readily agreed, so I called Mike on his cellphone. Mike was, at the time, at a wedding in Seattle. He flew from Seattle to D.C., where his wife met him at the airport with a suitcase of fresh clothing, and, hours later, he arrived on the ground in Tallahassee.

Another lawyer I suggested calling was John Roberts. John was then the head of the Supreme Court practice at Hogan & Hartson and universally considered one of the finest Supreme Court advocates in the country. I called John and asked him to come down. He dropped everything and flew to Florida.

Ted Olson, another highly respected Supreme Court advocate and the former head of the Office of Legal Counsel under Ronald Reagan, had already been tapped to lead the Supreme Court team.

And George W. Bush had brought in his father's right-hand man, Jim Baker, to lead the team overall. Baker was legendary. He had served as White House chief of staff, as secretary of the treasury and as secretary of state. He had managed five presidential campaigns. He was George Herbert Walker Bush's best friend and closest confidant, but he was not particularly conservative. During the Bush 41 administration and the Reagan administration before that, Baker far too often had run circles around conservatives in those administrations.

When George W. Bush launched his 2000 presidential campaign, he notably excluded Baker and the other more moderate greybeards that had surrounded his father's administration. But, for this unpredictable mayhem, George W. Bush wisely turned to Baker because nobody alive better combined legal knowledge with cunning, ruthless savvy, a nuanced understanding of the press and a statesman-like gravitas. Baker came to direct the entire team.

Also early on, we realized we needed trial lawyers—that we couldn't have all pointy-headed Supreme Court clerks who do appellate law. Rather, we needed courtroom lawyers who wouldn't run scared if they saw a jury. I suggested Fred Bartlit, a legendary trial lawyer who spent decades with the Chicago-based law firm Kirkland & Ellis and then started his own firm, Bartlit Beck in both Chicago and Denver. When I had finished my clerkship with the chief, I had interviewed at Bartlit Beck.

One of my closest friends clerking at the Court was Glen Summers, a Scalia clerk who was among the most conservative clerks at the Court. (Glen would later be a groomsman at Heidi and my wedding.) Glen and I both interviewed together at Bartlit Beck and at Cooper Carvin. I seriously considered going to Bartlit Beck but ultimately chose a different path. I had gotten to know Fred in the course of the interviews and recognized that we needed the skills of a seasoned trial lawyer. Ben gave the green light for me to call Glen and ask both him and Fred to come to Florida. Fred then asked if he could bring his lead partner, Phil Beck. I didn't know Phil at the time, but Fred promised that Phil was as talented a trial lawyer as there was practicing, and we needed him. I said we'd be glad to have him.

We set up the Bartlit Beck team in a different building. We told them that, at some point relatively soon, there's going to be a trial, so don't get drawn into the media circus, don't get drawn into the appellate battle, but get ready for trial. And they did.

Early in the proceedings, there were a total of seven different cases pending in different courts, all challenging the outcome of the election. The first time the votes were counted, George W. Bush won. He had the most votes, but Democrats wanted a recount—and it quickly became clear that they wanted to keep counting over and over and over again until Al Gore was finally declared the winner. That's not surprising in any election. Whoever has the fewest votes has all the incentive to want endless recounts because otherwise, they lose.

In the first few days in Florida, Secretary Baker asked me to serve on all seven of the different legal teams to ensure consistency between what we were saying in different courtrooms. And my first six days down there, I slept a total of seven hours. It was chaos. We had charts on the wall, mapping out each of the different cases, any one of which, if it went wrong, could cost the presidency of the United States.

Our trial team was led by Bartlit Beck and Houston-based Baker Botts (where I had spent two summers working in law school). They spent two weeks separated from everyone else getting ready for trial.

Of course, the Democrats had their own array of trial lawyers. But their entire team was led by, and much of the work was done by, one person, David Boies. David Boies is an amazingly talented litigator. He's brilliant, and he has a photographic memory. He seemed equally adept at questions of law and questions of fact and was as quick on his feet responding to unexpected changes as any lawyer I have seen in a courtroom.

But Boies was simply doing too much. He led the State Supreme Court effort, which for us had been led by Mike Carvin. He led the U.S. Supreme Court effort, which for us was led by Ted Olson. He led the state trial team, which for us was led by Fred Bartlit and Phil Beck. He became the chief press spokesperson for Vice President Gore, which for us was led by Jim Baker and former Deputy Attorney General George Terwilliger. In any one of these endeavors, Boies was excellent. At all of them, simultaneously, there simply were not enough hours in the day for one man.

For elections, many counties in Florida used a punch-card system of voting where the voter pushes a stylus through a punch card and pushes out what's called a "chad"—the little rectangle that the stylus pokes out. One of the arguments presented by the Democrats was that the voting machine used in Florida's punch card systems had a problem that led to systematic undercounts of the votes. The theory went that the first column of a punch card was always used in every election, whereas the second and third columns were used less frequently. Therefore, they claimed, the first column would get more chads built up under it, and, as they piled up, it would become more difficult to push the stylus through and vote for the candidate you wanted—which they presumed to be Al Gore.

This was a curious theory, on many fronts. And we knew we had significant evidence to counter it. One of the younger lawyers working on the team was preparing to take the deposition of the Democrats' trial expert, and he was eager to rip the expert apart. Fred and Phil jumped in and stopped him and said, "You will do no such thing. We are going to use this at trial. And we have zero interest in telegraphing our trial strategy at pre-trial deposition." Instead, the deposition focused primarily on questioning the expert's academic qualifications, which presumably led the Gore team to believe that, at trial, we were going to dispute whether this expert were sufficiently qualified.

Bush v. Gore decided at Supreme Court
Bush v. Gore decided at the Supreme Court David Hume Kennerly/Getty Image

The expert at issue was a Yale statistician who had prepared a report that examined prior Florida elections. He argued that in Florida, the 1998 race for U.S. Senate had been in column one, the race for governor in column two, and there were significantly more undervotes in the Senate race than in the governor's race. Specifically, 1.6 percent more votes were cast statewide in the governor's race than were cast in the Senate race. That, the Democrats argued, supported their theory that the chads would build up under the first column, and the rubber in the voting machine would get stiffer under column one, and as a result it would make it harder to push the stylus through and vote.

I remember the night before trial commenced. All of us on the trial team were in a large conference room seated around the table. Phil Beck had a baseball cap on and was wearing it backwards. He had a yellow pad in front of him. In a corner of the room, the television set was on, and David Boies was being interviewed by Larry King. Phil looked up and said, "What in the hell is he doing on Larry King?" He said, "We're going to trial tomorrow, and I'm going to destroy his lead witness, and he doesn't know it because he's on #@#$! Larry King!"

The next day, things played out just as Phil had predicted. The Yale statistician laid out his theory that prior elections showed it was harder to vote for races in column one than races in column two. Then Phil stood up for his cross-examination. Phil began gently enough, but then moved in for the kill:

"In your sworn affidavit, sir,...you said 'a closer inspection of the Palm Beach ballot reveals that the senatorial race was recorded in the first column and the gubernatorial race in the second,' right?"

"Right."

"Now, professor, you've never inspected the ballot that was used in 1998 in Palm Beach County, closely or otherwise, have you?"

[Six full seconds of silence, with the professor looking deeply anxious.]

"I have not seen the ballot."

"Well, I got one this morning. [showing the witness the ballot]...Now you understand, sir, that this thing I'm pointing to on the left, that's page one of the ballot. ...We got page one of the ballot...and then page two of the ballot. ...Now do you understand, sir, that the way these ballots work, on page one, everything that's on page one you vote for in the first column...."

"Yes, I understand, sir."

"Now you read please for the court...what is the race here at the top of column one?"

"...It's the...United States senator."

"And what's right underneath the United States Senate, in column one?"

"State governor, lieutenant governor."

"So, so what you said in your sworn affidavit, was in column two was actually in column one, right?"

"...it should have been in column one. My mistake; it was the second race, and that's what I put...."

"Well, in your affidavit, you didn't say that the fact that it was the second race was what's important, you said that the fact that the Senate was in column one and the governor was in column two, why that 'seemed to suggest' that the voting machine wasn't recording all the votes in column one...."

"I said that this was possible, yes."

"And you can see here that that sworn affidavit...that just wasn't true, was it, sir?

"It contained a mistake."

"...and when you signed that sworn statement, you were relying on the Gore legal team to give you the straight facts, weren't you?"

"I relied on the facts that I received. Yes."

"That's all I have, judge."

It was the most stunning cross-examination I'd ever seen. Television dramas notwithstanding, "Perry Mason" moments are rare in court, and yet because our team was fully prepared—we had examined the actual ballots, we had physically tested the voting machines used in Florida elections—we utterly destroyed the Gore team's expert witness. Afterwards, that Yale statistician was seen weeping, cradling his head in his hands in the courtroom hallway.

Ted Cruz is a U.S. senator for Texas, a member of the Senate Judiciary Committee and the author of the new bestselling book, One Vote Away: How a Single Supreme Court Seat Can Change History.

The views expressed in this article are the writer's own.