Baker was in a car heading into Houston from the airport when he got the call. It was the morning after the November 7, 2000, presidential election and he and Susan had just flown back from Austin, where they had spent the previous evening in a hotel suite at the Four Seasons with Dick Cheney, waiting like the rest of America for an election result that never came.
The Republican ticket had brought together George W. Bush and Cheney, two people close to Baker, yet for the first time in a quarter century, he had spent the campaign on the sidelines, neither operative nor prospective candidate, shunned as a relic of the past. Bush, the fifty-four-year-old governor of Texas, was running to become the first presidential son to follow his father to the White House since John Quincy Adams. He had picked Cheney as his running mate, but he was worried about the political optics and had not wanted to look too dependent on his father’s old crowd, so the man who had run five Republican presidential campaigns had not been welcome.
But the day after the vote, Baker picked up the phone to hear Don Evans, a longtime friend of the younger Bush’s and chairman of his presidential campaign, on the line. The election had been too close to call in several states, including in Florida, where fewer than two thousand votes separated the candidates. With its twenty-five electoral votes, Florida would determine the next president. While Bush had clearly lost the national popular vote, he was ahead at the moment in Florida, just barely, and the question was whether his narrow lead would withstand the challenges that were sure to come. As the vote headed to a recount, the Democrats had already sent a plane full of lawyers soaring through the predawn skies toward Florida and tapped Bill Clinton’s former secretary of state, Warren Christopher, to lead their efforts. The Republicans needed a secretary of state of their own. Evans had called Bush sometime after 4 a.m. “What do you think about Baker?” he suggested. Bush said yes.
Baker did not hesitate when Evans called. He was in. Bush himself then called. Yes, Baker told him, he would head right to Florida. Whatever bitterness George W. had harbored toward Baker from the 1992 election defeat was put aside in the interest of salvaging his own campaign. Within hours, the campaign sent a borrowed jet to pick up Baker in Houston and fly him to Tallahassee. For Baker, this was a chance to redeem himself in the eyes of the elder Bush, to achieve what he had failed to do eight years earlier. “When he went down to Florida,” said David Rubenstein, “I think this was his way to get back into the graces of The Man.”
Baker had known George W. for four decades, going back to the days when he was called “Junior,” even though he was technically not one. As a friend of the family, Baker had helped the young Bush along the way. In 1962, he arranged for George W., then sixteen years old, to work as a messenger for Baker Botts. Twenty years later, Baker steered a Princeton friend to make the largest investment to that point in Bush’s oil exploration company, buying 10 percent of the firm for $1 million. And Baker had welcomed George W. into his father’s campaigns, most notably in 1988 when the son had an office at headquarters and served as chief loyalty enforcer.
Bush, though, no longer wanted to be called Junior. After too many boozy years of mediocre business ventures and a failed campaign for Congress, George W. had quit drinking and gotten his act together. While his father was in the White House, George W. put together a team of investors to buy the Texas Rangers baseball team, making himself one of two managing partners and the team’s public face in Dallas. He parlayed that into a successful run for Texas governor in 1994 and four years later became the first Republican to win a second consecutive term in the state, making him the toast of a national party eager to reclaim the White House.
As the 2000 campaign approached, Baker understood that George W. needed to establish himself on his own terms. “George W. Bush wanted to prove it wasn’t his dad’s campaign,” said Andy Card, who ran the convention for Bush that year and would become his first White House chief of staff. “He was his own man. So there was some reluctance” to surround himself with veterans of the first Bush administration, including and perhaps especially Baker.
For his part, Baker was sensitive about doing or saying anything that would look presumptuous and either embarrass or aggravate the up-and-coming candidate. Even an item in an obscure news outlet called India Abroad, a weekly newspaper published in New York for the South Asian diaspora, caused a small kerfuffle in November 1998 when it quoted Baker saying he was going to run the young man’s campaign. Baker, worried that it would upset Governor Bush, scratched out a handwritten note disavowing the article and faxed it to the prospective candidate’s father.
“I think you know I would never say that because I’ve ‘been there, done that’—for 3 Republican Presidents—and have no desire to ever do it again,” Baker wrote former President Bush. While he regularly told everyone that George W. would be a fine president, Baker added, “he needs his campaign to be run by people in their 50s—not in their 70s.” Baker asked Bush to pass along the note to his son.
The elder Bush wrote back to reassure Baker. “I read that nutty story out of India,” he said. “Don’t worry about it at all.”
A media figure more widely read in the United States weighed in a few months later. Robert Novak, the conservative columnist, reported that George W. was assembling a coterie of advisers that pointedly excluded his father’s closest confidants. “In international policy, the message is clearest about who is not on the new Bush team: James Baker and Gen. Brent Scowcroft, longtime collaborators of the elder Bush,” Novak wrote.
Both Bushes quickly dashed off apologies to Baker and Scowcroft for what the father called that “horrible Novak column.” In a note to Scowcroft that he sent to Baker as well, the former president said: “I am afraid this is just near the beginning of the attacks on my closest friends that will increase if George decides to run.” He said he grew “furious” when he saw columns like Novak’s. “I guess my message to you and to Jim Baker, too, is ‘don’t let the bastards get you down.’ ” In his own note to Baker, George W. wrote: “I feel badly about the slight in Novak’s column. I value your friendship and advice.”
Baker wrote back saying that he understood and would do anything the governor needed—or nothing at all, if that was more helpful. “It is important for you to have your own new and fresh team, but I think you know how much I love your family, and just don’t want people to think I’m not ‘on the team’ (as the Novak article said) either because I don’t want to be, or because you don’t want me to be,” Baker wrote. “All the Bakers are pulling and praying for your success.”
WHILE THE CAMPAIGN did not want Baker out front, it did employ him for discreet missions behind the scenes. At one point, Karl Rove, the former aide to the elder Bush who had become the son’s principal campaign strategist, sought Baker’s advice about making contacts with former British prime minister Margaret Thatcher, an icon to many conservatives in America as well as Britain. She was friends with Steve Forbes, the publishing tycoon who was running against Bush for the nomination, and some in the governor’s camp worried that she would become an overt supporter. Baker urged Charles Powell, a former foreign policy adviser to Thatcher, to convince her to stay neutral. Powell wrote to Baker saying he thought they had succeeded, but understood the sensitivity of anyone discovering their communication. “Probably best if you destroy this,” Powell wrote.
Bush went on to bury Forbes and a clutch of other Republican candidates, including Dan Quayle, before outpacing Senator John McCain of Arizona through a series of fiercely contested primary battles to claim the nomination. Still, when Bush introduced a major foreign policy initiative in May 2000 as he pivoted to a general election campaign against Al Gore, it did not go unnoticed that arrayed behind him were some of the party’s leading national security luminaries such as Henry Kissinger, Colin Powell, and George Shultz—with Baker nowhere to be seen.
On election night, Baker joined Cheney in the running mate’s hotel to watch the results. Others from the old days were there too, including Nick Brady, Alan Simpson, and Donald Rumsfeld. As the votes rolled in, Cheney was keeping tallies of his own on a yellow legal pad. So was Baker, who a few days earlier had listed his predictions for the night, forecasting that Florida, Michigan, Wisconsin, and Tennessee would be the evening’s decisive toss-ups. Some of Baker’s predictions turned out to be on the money. While Michigan went for Gore and Tennessee went for Bush, Wisconsin was achingly tight, with Gore holding a lead of about 6,000 votes out of nearly 2.6 million cast, or 0.2 percent.
Then there was Florida, run by Jeb Bush, the candidate’s brother, who had been elected governor in 1998. First, it was called for Gore, then the television networks took back the call. Later, they put it in Bush’s column, led by Fox News, whose election decision desk was run by John Ellis, George W.’s cousin. When Cheney left the suite to drive across town and join Bush to claim victory, Baker stayed behind, suffering from a cold that made the prospect of standing in the rain for a middle-of-the-night victory rally unappealing. Then suddenly there was no victory rally. The vote count in Florida had narrowed. Gore retracted his concession. When Baker went to sleep, no one was sure who had won.
Less than twelve hours later, after a couple of phone calls, Baker found himself responsible for securing the victory. He was sidelined no more. Bush’s lead in Florida stood at a meager 1,784 votes out of nearly 6 million cast, or roughly three hundredths of a percent. Baker quickly called Margaret Tutwiler, telling her to get to Florida and mobilize the rest of the old gang. It was 11:15 a.m. He grabbed a scrap of paper and scribbled out his initial thoughts: The recount should be conducted “Quickly, Openly, Calmly & In Acc w law,” he wrote. “VP Gore campaign should share that goal,” he added, then noted that he should ask to meet with Warren Christopher. “Now more of a LEGAL EXERCISE than POLIT. ONE,” he wrote. “COUNTRY WON’T TOLERATE PETTY POLITICS.” He knew better, of course. He was being asked to take charge in Florida not for his constitutional expertise but for his political acumen. This battle would be fought not just in the courts.
By around 2 p.m., when Joe Allbaugh, George W. Bush’s campaign manager, arrived in Houston on a private plane borrowed from the media mogul Warren Tichenor to collect Baker for the flight to Florida, Baker was ready for a briefing. After forty-five minutes, he had heard what he needed to know. He knew where this would end up.
“We’re heading to the Supreme Court,” Baker said.
Really? Allbaugh asked.
“It’s the only way this can end,” Baker said.
ONE OF THE FIRST THINGS Baker did was call Warren Christopher. As it happened, Christopher’s assistant, Kathy Osborne, had once been Ronald Reagan’s secretary at the White House. She had been well liked around the West Wing, nicknamed the Cookie Lady because she used to feed snacks to those who stopped by her desk outside the Oval Office.
But if Baker thought he would have an inside track simply because he knew her back in the day, he was wrong. When she answered the phone, she told Baker that Christopher was not available.
“Where is he?” Baker asked.
“Oh, I don’t know,” she said nonchalantly. “I think he’s traveling.”
“To Florida?” Baker asked.
Osborne would not say, so Baker left a message.
After Christopher did not return the call promptly, Baker made a point of mentioning to reporters that he had reached out and not heard back, a small jab that did not go unnoticed at Democratic headquarters.
The two former secretaries of state had crossed paths over the years but could hardly be more different, the elk-hunting, cowboy-boot-wearing, dirty-joke-telling Texan and the gray, stoic, rigidly proper Californian. Where both had operated at the intersection of politics and policy, Christopher was at heart a technocrat. Baker was a political knife fighter.
At seventy-five, Christopher, or Chris as everyone called him, had been in and out of public life for decades. He had served in government inquiries after the Watts riots in 1965 and the Rodney King beating in 1991. He led the vice presidential selection teams that helped Bill Clinton pick Al Gore in 1992 and Gore pick Senator Joseph Lieberman of Connecticut in 2000. Most notably, as Jimmy Carter’s deputy secretary of state, Christopher negotiated the release of the American hostages from Iran in the final minutes leading up to Reagan’s inauguration in 1981. Twelve years later, he returned to Foggy Bottom for four distinguished but not especially memorable years as Clinton’s secretary of state following Baker’s whirlwind tenure.
Despite their missed telephone connection, a meeting between Baker and Christopher was set up for the next day, Thursday, November 9. They would sit down to take each other’s measure in a small but well-appointed conference room at the Governors Inn, a boutique hotel in Tallahassee steps from the State Capitol.
Christopher had approached the meeting as if he were getting ready to negotiate with the Russians, thinking this would be a momentous event where the fate of the country would be worked out by two elder statesmen. Seasoned negotiator that he was, Christopher prepared a first offer to put on the table and, in case that was not accepted, a second offer as a backup and even a third offer.
Baker arrived for the encounter along with Allbaugh and Robert Zoellick, who had rushed down to Florida to once again serve at Baker’s side. Christopher brought with him Bill Daley, chairman of Gore’s campaign and a former commerce secretary under Clinton, and Ron Klain, who had served as Gore’s chief of staff in the White House. Baker greeted Christopher politely. But he was not there to bargain. He had no first offer, much less a second or third. When Christopher suggested that Bush and Gore get together to agree upon a process to resolve the dispute, Baker shut him down.
“Well, Chris, we’re not here to negotiate,” he said. “Governor Bush won the election on Tuesday. The votes have been counted already. And we’re going to stay here as long as needed to make sure they’re certified. But we’re not here to negotiate about ways to count the ballots. The ballots have been counted.”
Christopher was flummoxed. He pressed again for a meeting between the candidates. Baker again rejected the idea.
“If you would like Vice President Gore to concede before that’s finalized, that’s fine,” Baker said of the vote count. “But there’s nothing to negotiate, nothing to talk about.”
After they went back and forth in a similar vein three more times, the room fell silent.
“I guess there’s nothing else to discuss,” Christopher said.
“Well,” Baker said, “if you have anything you need to discuss, you just call me.”
The meeting had been scheduled to go to two hours. It lasted about twenty minutes. The Democrats were frustrated and impressed at the same time. Baker, as they saw it, was ruthlessly cynical. “He didn’t spend one minute wondering if George Bush had gotten the most votes or not, or worry about the legitimacy of American democracy,” remembered Klain. “He did not care one whit about any of those things. He was there to get his guy into the White House. Period.” Truth be told, the Democrats wished Christopher had been of the same mind-set.
Baker wanted someone of heft to represent them in case the clash did end up in federal court, as he had predicted to Allbaugh—and not just a lawyer but someone with national stature and bipartisan respect. Jack Danforth came to mind. A former Republican senator from Missouri and ordained Episcopal priest, Danforth had a reputation for moral rectitude and political moderation that earned him admiration on both sides of the aisle. His nickname was “St. Jack,” a sign of esteem though also a tweak at his righteous streak.
Danforth had been the runner-up to Cheney in George W. Bush’s vice presidential selection process and now he was being tapped to defend the candidate who had passed him over. Danforth was tracked down in Cancún where he was on vacation. Don Evans called first and then Baker. But they were surprised when Danforth resisted. The former senator thought that going to federal court was a mistake and that Bush should avoid taking actions that would sully his image for any subsequent run for office.
“I just can’t conceive that a federal court’s going to take jurisdiction over a matter relating to state election law,” Danforth said. “I just can’t believe that.” Bush was still young and had a future if he lost. If he was perceived as taking this recount fight too far, Danforth said, “it could affect his reputation.”
Baker pressed Danforth to take the case anyway and the former senator relented. He began packing his bags and checking out of his hotel. But within a few minutes, Baker thought better of it and called back.
“It sounds like your heart’s not in it,” Baker said, “so we’ll get somebody else.”
The somebody else would be Theodore Olson, a former assistant attorney general and well-known Republican lawyer in Washington. The Baker team reached Olson on Thursday while he was on a plane to Los Angeles. As soon as he landed, he reboarded the same plane to head back east.
THE NEXT MORNING, Baker was having breakfast at the Governors Inn at the same time as the Democrats. Bill Daley, the son of the legendary Chicago mayor whose late votes in the razor-thin 1960 election had delivered the presidency to John Kennedy, came over to his table and joshed with Baker for a couple of minutes. At one point, Daley jokingly proposed a trade between states with close election night counts. “Come on, we’ll give you Iowa and you give us Florida and we’ll call it a day,” Daley said.
Even two days after the election, neither Baker nor Daley nor anyone else had a full appreciation of the spectacle they were walking into in Florida. The first American presidential election to go into overtime since 1876 did not come with a script. Even for Baker, who had seen almost everything in his political career, this was new. Elections in the best of circumstances can be imprecise affairs. Ballots are thrown out because of voter errors and unclear instructions. Some voters are turned away on Election Day because of conflicting registration information. But the flaws rarely matter to the overall outcome because the margins of victory are typically wide enough to render them moot. In the case of Florida in November 2000, a microscope was trained on a process that did not stand up well to scrutiny. It was that rare situation where every vote mattered.
In Palm Beach County, for instance, a so-called butterfly ballot listed the names of candidates on opposing pages separated by a series of holes, leading to confusion and mistaken votes. On the left side, Bush was listed first and Gore second, but punching the second hole on the ballot would actually cast a vote for Patrick Buchanan, who was listed first on the right side. Improbably, 3,407 votes in heavily Democratic Palm Beach—more than three times as many as in any other Florida county—were cast for Buchanan, the old Bush family nemesis running as the nominee of the Reform Party, the last remnant of Ross Perot’s two campaigns for the presidency. No one thought that many people had actually intended to vote for Buchanan, not even Buchanan himself. If he had gotten the same share he got elsewhere in the state, that would mean roughly 2,800 ballots were cast for Buchanan by mistake in Palm Beach, mainly by voters who otherwise supported Democratic candidates down the ticket, many of them elderly Jews excited about helping Al Gore’s running mate, Joseph Lieberman, become the first Jewish vice president. Another 19,000 ballots in Palm Beach were thrown out because voters punched holes for two candidates. As problematic as the situation was, Gore had no real basis for complaint since the ballot had been approved by the county’s Democratic supervisor of elections and there was no way to remedy it under Florida law once the vote was conducted.
In Duval County, a different kind of ballot created similar problems. Voters were told to choose one candidate on each page of the ballot, which covered races for Senate, House, and local offices, but there were so many minor candidates for president that they spread over two pages. Following instructions, some voters cast a vote on each page, meaning they inadvertently tried to vote for more than one candidate for president. More than 26,000 ballots were thrown out, largely because of double voting, and nearly 9,000 of them were in predominantly African American precincts where Gore was otherwise racking up huge margins. Other problems were reported elsewhere around the state. In Volusia County, a computer disk error initially gave nearly 10,000 votes to the Socialist Workers Party candidate by mistake. In one Palm Beach precinct, no votes were reported at all—the election worker feeding ballots into a counting machine had hit the “clear” button instead of the “set” button. In Broward and Miami-Dade counties and elsewhere, African American voters reported being turned away from the polls when their names were not on registration lists; some were denied ballots after being told that they were felons and thus disqualified, even though they had never been arrested before in their lives. Beyond the legitimate problems, people’s imaginations ran wild—after Republican officials spotted an election worker in Volusia County leaving headquarters with two black bags that they suspected contained ballots, sheriff’s deputies tracked down and stopped the worker’s car twenty-five miles away, only to find personal clothing in the bags.
The broader issue was that in Florida at the turn of the century, about a third of voters across the state made their selections using paper ballots that they punched with a stylus, a system dating back more than a hundred years and open to misinterpretations. Most of the time, the stylus punched a clean hole in the ballot, but sometimes it did not. Tens of thousands of ballots then could be open to debate as to whether a vote had been properly cast or not. Not long after Baker ran into Daley at breakfast that Thursday, Warren Christopher’s Democratic legal team requested a hand recount of paper ballots in four Florida counties—Palm Beach, Miami-Dade, Broward, and Volusia.
To Baker, this was a clear threat to Bush’s victory. As he had told Christopher, his job was to preserve that win, not conduct an independent examination of what had really happened. In Baker’s view, the Democrats were not really interested in a full inspection of the results either—they asked for a recount only in four predominantly Democratic counties where they were most likely to pick up votes to close the gap, which as of the automatic machine recount on Friday had already shrunk to a mere 327 votes. Democrats argued that they did not ask for a statewide recount because Florida law did not permit it; they would have had to file separate requests in each of the sixty-seven counties. Whatever their motives, the selective choices of where to recount would bolster Baker’s conclusion that the effort was more about overturning the outcome than any genuine search for an accurate tally.
Under Florida law, overvotes—meaning ballots in which holes were punched for more than one candidate or, in some cases, where voters mistakenly wrote a name as well as punched a hole—were thrown out even if the intent was clear. Nothing more could be done about them. But undervotes—meaning ballots in which the stylus did not cleanly punch all the way through—could be counted depending on the circumstance. Thus Baker, no expert in election law, and the rest of the nation received a sometimes farcical tutorial in the oddities of Florida ballots. The word “chad,” describing the tiny piece of the ballot punched out by the stylus, became a household term. A hanging chad had just one corner still attached to the ballot, while a swinging chad had two and a tri chad had three. When the chad remained fully attached to the ballot but had an indentation, indicating that someone at least tried to punch through, it was called a dimpled chad. If there was penetration but the chad was otherwise still fully attached, it was a pregnant chad.
Baker did not care about chads. He had one question and one only: how to stop the recounts. The Republicans had a built-in advantage in Florida given that the state was run by Jeb Bush. Indeed, Baker went straight to see Jeb as soon as he landed in Florida the day after the election. In addition, Katherine Harris, Florida’s elected secretary of state, who oversaw elections, was a state co-chair of the George W. Bush campaign, and the state legislature, which had the power to appoint electors itself if it chose, was also controlled by Republicans. But the courts were a different story. Baker used to go hunting with his friend Lawton Chiles, the former Democratic governor of Florida, and remembered him boasting that he had appointed nearly every member of the Florida Supreme Court. The Florida judiciary was not going to be predisposed to rule in favor of a Republican effort to stop the recounts.
The other route would be federal court. Republicans had long railed against what they called activist federal judges intruding into state matters, yet now Baker was contemplating just that. As his team sat down to argue the merits of filing a federal lawsuit seeking to stop the selective recounts, some members were opposed, including Robert Zoellick and Joshua Bolten, the campaign’s policy director, who cited the party’s historical beliefs and expressed skepticism about their chances for success. “We run the risk that if we try to fight this battle at the Supreme Court, the liberals will vote against us because we’re not liberals and the conservatives will vote against us because they’re conservatives and will want to show constitutional deference to the state,” Bolten remembered arguing. They speculated about whether Justice Antonin Scalia would decide that the court did not have jurisdiction and whether Justice Sandra Day O’Connor, a former state legislator, would resist federal intervention.
But Theodore Olson and others advocated trying anyway. Whatever the party’s principles, they had to make a cold-blooded decision about the best way to achieve victory. Olson suggested taking a stand on equal protection and due process, making the case that each county would be judging ballots by different standards, with some accepting ballots with hanging chads, for instance, and others rejecting them. How could an election turn on such arbitrary differences between counties? How could the rules be changed after the election? Would that not disenfranchise some voters but not others?
Baker pressed Olson. “He asked tough questions,” Olson said. “Should we, the Republicans, be running to court? Because the whole idea of, well, things should be decided in the political realm and we shouldn’t run to federal judges for everything—so was it the wrong thing for Republicans to do? But we felt, and I felt, that we had to, because the thing was spinning out of control.” Baker was not a constitutional scholar, but it sounded like a reasonable argument to him. And in keeping with a career of pragmatism over philosophy, he was perfectly comfortable dispensing with the federalism argument if it meant preserving Bush’s victory. “At the end, he said something to the effect of, ‘We’ve got a 30 percent chance of winning,’ ” recalled Benjamin Ginsberg, the campaign general counsel.
Baker took the matter to Bush and Cheney by telephone. Bush did not hesitate and signed off on the strategy. But the second-guessing continued even after the federal district court agreed to take the case, all the way to the morning of the hearing. “We were still debating this in the car on the way to court,” Olson said. With Baker sitting next to him, on the phone with Austin as the campaign still argued about pulling the plug, Olson expressed exasperation. “We cannot have the whole world here watching and we decide we are going to do this thing and then decide we are not going to do this thing,” he erupted.
As Olson got out of the car and made his way past all the television news trucks into the courthouse, the question was still unsettled. They arranged a system where the decision could be communicated to him in the courtroom. Finally, Ginsberg slipped in and gave him the word: “Yes, we are going forward.” Olson stood up and made his argument.
LIKE OTHERS WHO had rushed to Florida in the crazy hours after the election, Baker did not imagine that he would be there for long. He had plans for a pheasant-hunting trip in Britain the following weekend with George H. W. Bush, Norman Schwarzkopf, and Prince Bandar bin Sultan, the Saudi ambassador. Cheney had originally been scheduled to go too, until he was tapped for the ticket. “My dad called and he goes, ‘I have to go to Florida but just for a few days,’ ” Doug Baker said. “He goes, ‘I’ll be back, so still plan on going hunting this weekend.’ And then about two days later, ‘Well, we’re going to push our hunting trip back.’ ”
Baker set himself up in the third-floor office of the George Bush Republican Center, the brick state party headquarters about three blocks from the State Capitol. Joe Allbaugh was in a corner office next to him, while Margaret Tutwiler was in a corner office across an open area and Robert Zoellick a little farther down. Among those who arrived to help were Frank Donatelli, who ran Baker’s 1978 campaign for Texas attorney general and later worked in the Reagan White House, and John Bolton, a conservative Yale-trained lawyer with a trademark bushy mustache who had worked for Baker at the State Department.
Within a matter of days, Baker had not only reassembled much of his old team but essentially built a top-drawer law firm from scratch. By the end, he would enlist about fifteen lawyers, eight legal assistants, and seven secretaries from Baker Botts, not even counting Theodore Olson, the lawyers already on the ground like Benjamin Ginsberg, and the Florida lawyers who were recruited for their knowledge of state law. Joshua Bolten sent three aides who had been Supreme Court clerks. Doug Baker would come for a week to pitch in. Among those who worked on the effort were Republicans who would go on to serve as members of Congress, ambassadors, cabinet officers, and White House officials. Two of the attorneys on Baker’s pickup team would later serve on the Supreme Court, John Roberts and Brett Kavanaugh.
As he had in two White Houses, three cabinet departments, and five presidential campaigns, Baker imposed a structure and order that resulted in crisp decisions. Where the Democrats had the same lawyers arguing in both state and federal courts, Baker assigned different attorneys to different courts so they could specialize. Every morning he had a meeting with top advisers and then convened a conference call with Bush back at his ranch in Crawford, Texas, or the governor’s mansion in Austin, where he was awaiting the results of the recount, and Cheney, who had returned to Washington to begin assembling an administration in case they held on to their victory.
Baker was the field marshal mobilizing the troops, the chief strategist calling the shots. No one questioned his authority. “He can give you a look or a one-word response that puts you in your place,” Andy Card remembered. When Karl Rove and Don Evans at the Austin campaign headquarters pushed back on one request during a phone call, “Baker’s response,” Rove recalled, “was swift and brusque: Hell, if we weren’t going to agree, we could get our butts to Tallahassee and run the recount battle ourselves.” Baker then hung up.
The flurry of activity kept everyone so busy that most days Baker and the team ate only delivered meals at the headquarters on paper plates using plastic utensils. On weekends, they broke up the tension by tossing around Nerf footballs—Baker had a tight spiral. Baker kept both Bush and his father up to date by telephone. At one point, the former president called for Baker seeking an update just before going into surgery at the Mayo Clinic for a hip replacement.
Tallahassee, a provincial state capital rarely at the center of the national universe, was not at all ready for the influx of high-profile Republicans and Democrats, and hordes of media who had descended to cover the never-ending 2000 election. On the second weekend in town, Baker and his colleagues were kicked out of their hotel rooms because of the annual Florida–Florida State football game; fans had booked the rooms months in advance. The Republicans eventually found a condominium where Baker would stay the rest of his time there.
Every day seemed to mix momentous legal clashes with circuslike political theater. Jesse Jackson came to lead a rally in West Palm Beach, complaining that black and Jewish voters were being disenfranchised. Baker sought his own street-level foot soldiers. Roger Stone, the self-described dirty trickster with a Richard Nixon tattoo who would later become famous as an adviser to Donald Trump convicted of lying to Congress, said he received a call from Margaret Tutwiler, who had been told by Baker to enlist his help. (Baker and Tutwiler later said they did not recall this but it was possible.)
Baker also deployed Republican heavyweights such as Bob Dole, Governor Christine Todd Whitman of New Jersey, and a slew of other politicians to argue their case to the broader public. He sent a young campaign aide named Ted Cruz to Philadelphia to bring Senator Arlen Specter down but Specter rejected the script and had his own points he wanted to make. “Baker says, ‘No, no, that’s not what we need you to say,’ ” Cruz recalled. Specter demurred, but then headed to the cameras and made his original points, saying “exactly what he wanted to say.” One person Baker could not get to come to help validate the cause was his old friend Colin Powell, who had been tapped by George W. Bush as his prospective secretary of state and did not want to tarnish himself in partisan politics. Baker grumbled at that one; he was a former secretary of state and here he was doing his part.
The public perception, Baker understood, mattered as much as the legal skirmishing. It would do no good to win in a court of law but lose in the court of public opinion. The Democratic argument for recounts was compelling. “We’re getting killed on ‘count all the votes,’ ” Baker told his fledgling team on the day he arrived in Tallahassee. “Who the hell could be against that?” Baker likewise recognized that whatever happened, they had to preserve the count while Bush was still ahead. A Gore lead at any point would muddy Baker’s message that Bush had won the election and the Democrats were trying to steal it. “We needed for Bush and Cheney to maintain their slim lead, because if the other side, Gore, ever got ahead, because of the way the press views Democrats versus Republicans, it wouldn’t matter what we did after that because we would drown in negative publicity,” said Irvin Terrell, a Baker Botts lawyer who joined the legal team in Florida. Eventually, Republicans printed up blue signs that looked at first like “Gore Lieberman” campaign placards but instead said, “Sore Loserman.”
Warren Christopher was no match. Baker’s Texas friend Robert Strauss used to call Christopher, invariably turned out in a fastidious pinstripe suit with a crisp pocket square, “the undertaker.” Michael Powell of The Washington Post described him as “looking like one of those freeze-dried Incan princes found atop an Andean volcano.” At one point while Christopher was on television making a statement, someone watching at the Bush headquarters in Florida mused drolly about what would happen “if Warren Christopher were alive to see this.”
None of which was especially fair or generous to Christopher; everyone on both sides considered him a thoroughly decent, honorable man. But he did not have Baker’s political sense, or ability to project confidence and competence. “He looked strong, Chris looked weak,” Bill Daley said years later. “Democrats started to trash Christopher as not mean enough, not tough enough, not nasty enough.”
The difference resonated with the public. Some 51 percent of Americans in one poll said they agreed with the arguments that Baker had been making, compared with just 42 percent who sided with Christopher.
AS THE NATION WATCHED with a mix of fascination and horror, election officials in Florida went through the laborious process of recounting votes, holding disputed ballots up to see whether light would come through a punched card or not, while Republican and Democratic observers sat beside them arguing over practically each ballot.
By the time the recount battle was all over, forty-seven lawsuits had been filed by the various combatants. Baker’s goal through these hand counts was to shut them down and, if that were not possible, at least to limit the number of new votes counted. His team argued for the most stringent standard possible to determine whether a ballot should be deemed valid, while Gore’s lawyers maintained that every vote should be counted even if it required election officials to intuit the voter’s intent.
When it came to absentee ballots sent from overseas, however, the two sides effectively switched positions. Knowing that most overseas ballots were mailed by members of the military who were likelier to support Bush, Baker and the Republicans argued that the authorities should bend over backward to count them, even if they came without a required postmark or signature or otherwise did not completely conform to state requirements. Gore, for his part, was left to argue for the strict letter of the law. By the time the absentee ballots were counted, Bush’s lead crept back up to 930 votes, as Baker had imagined it would.
On the morning of November 20, the Florida Supreme Court took up the question of whether Katherine Harris should consider hand-recounted ballots before she certified the results of the election. Baker and Christopher both arrived at the courthouse for the hearing but never shook hands and sat on opposite sides of the chamber. Just before the proceedings were to start, Benjamin Ginsberg handed Baker a typewritten note that he had been given by an intermediary showing that the justices had already decided informally among themselves in Gore’s favor and had even written a draft opinion. Hand-counted ballots would be included and the deadline for certification would be extended until Sunday, November 26. The hearing was just a show.
Baker showed the note to Michael Carvin, a longtime Washington lawyer who was about to argue the case before the justices.
What should I do? Carvin asked.
“Just answer their questions and let’s get out of here,” Baker whispered.
Carvin did. “We all knew I was a sacrificial lamb before we saw the note,” he said later, but his goal then “was to lose and lose big,” to bait the Florida court into writing a decision so extreme that it would draw the United States Supreme Court into the fray.
The Florida court obliged; its decision came down late the next night. Baker was hardly surprised but he was still livid. When he appeared around midnight to address reporters, his anger showed. For the first time in the showdown, some of the journalists thought he looked his age. “Two weeks after the election, that court has changed the rules and has invented a new system for counting the election results,” Baker told the reporters as cameras recorded the scene. “So one should not now be surprised if the Florida legislature seeks to affirm the original rules.”
That was seen, rightly, as a threat—Baker was saying that if the Florida courts were going to try to take away the election, he had a trump card in the form of the state’s Republican-controlled legislature. The specific remedy he seemed to be suggesting was that lawmakers could pass a bill effectively overruling the court’s interpretation of the law.
But unspoken was an even more provocative scenario in which the legislature could vote to seat its own set of electors for the tally of the Electoral College, bypassing any further counting of the ballots and guaranteeing Florida’s electoral votes for Bush. In truth, Baker did not want to pull the trigger on such a move; he knew it would hobble Bush’s presidency by raising questions about its legitimacy from the start. “He wanted the threat but he didn’t want the legislature to pick the electors,” Frank Donatelli said years later. “But it did help to shape the overall environment.”
When Baker strode back into the recount team’s headquarters following his angry outburst, he received a standing ovation. But he drew condemnation from the other side. In The New York Times, the columnist Anthony Lewis wrote a piece headlined “Playing with Fire,” going so far as to compare Baker to George Wallace and other Southern governors who defied court rulings ordering desegregation. “When a court speaks, presidents accept,” Lewis wrote, listing several examples. “So it is dangerous business when a man who would be president tries to delegitimize a court. And it is despicable when a lawyer as senior and powerful as Jim Baker denounces a judicial decision against him and says it will be muscled in the legislature.” In a subsequent book on the recount, the journalist Roger Simon wrote that the episode showed how far Baker was willing to take the fight. “Maybe Al Gore was afraid of scorching the earth, but not Jim Baker,” Simon wrote. “He would not only scorch it, he would roast it in the fires of righteous indignation.”
The day after the Florida Supreme Court ruling, hundreds of protesters massed on the plaza outside the office building where the Miami-Dade supervisor of elections was conducting the county’s recount, egged on by Roger Stone and others. When the canvassing board decided to move the counting from the eighteenth floor, where observers were able to watch, to a smaller room on the nineteenth floor, anger exploded into shouts and threats. A couple dozen Republican protesters, many of them congressional aides or other operatives flown into the state, pounded on a desk, pumped fists in the air, and loudly demanded that the county’s recount be halted. “Voter fraud!” they shouted. “Let us in!” The confrontation would later be dubbed the Brooks Brothers Riot. But it seemed to have an impact. Miami-Dade officials stopped their recount, attributing the decision to a determination that they would not meet the deadline even after it was extended by the Florida Supreme Court, although one official acknowledged the public pressure had been a factor.
AMID THE DRAMA, Baker learned that the Democrats had recruited David Boies, who rose to fame leading the federal government’s landmark antitrust case against Microsoft and was considered perhaps the country’s most celebrated trial lawyer. Baker decided he needed reinforcements. He had aides contact two partners from Baker Botts who had gone up against Boies before, Irvin Terrell and Daryl Bristow. Terrell, who had won two cases against Boies, was hesitant and put off the caller. The intermediary then called back “and delivered the following message with not a lot of finesse, and that was that Secretary Baker understood that in my business, trial lawyers prize courage and that if I was a trial lawyer, then I would come.” Terrell got on a plane for Florida the next day. Bristow made the trip too. Soon after so did Phil Beck, another prominent attorney.
To the surprise of many, the United States Supreme Court agreed to hear the appeal. But then, on Sunday, November 26, before hearings could be held in Washington, Katherine Harris certified the results of the election concluding that Bush had won the state by 537 votes—and therefore the presidency. “I hereby declare Governor George W. Bush the winner of Florida’s twenty-five electoral votes for the president for the United States,” Harris proclaimed at 7:30 p.m. Her tally did not include new results from Palm Beach County, which missed the deadline by about two hours and would have given Gore another 192 votes, nor from Miami-Dade, which had halted its recount partway through after finding an additional 157 votes for Gore.
Nonetheless, Baker seized on the certification to declare victory and pronounce the contest over. Speaking with reporters, he noted that Bush had more votes on election night, more after the automatic machine recount, more in the returns initially submitted by the various counties, more after overseas absentee ballots were included, and more even after the Florida Supreme Court extended the deadline and Democratic counties employed what he called “a very loose standard” for counting ballots. “Ladies and gentlemen, at some point—at some point—there must be closure,” he said. “At some point, the law must prevail and the lawyers must go home. We have reached that point.”
Gore, however, was not about to surrender. He and his advisers were hardly going to accept the incomplete count certified by one of Bush’s campaign co-chairs in a state government run by Bush’s brother. And so they moved to challenge Harris’s decision in Florida court. For the next week, lawyers were in and out of courthouses in both Florida and in Washington, following parallel tracks—Bush seeking to cement Katherine Harris’s certification and Gore trying to throw it out and get the recounts going again. On December 4, Bush won in both venues. A Florida judge refused to overturn Harris’s determination, a ruling that thrilled Baker’s headquarters. It was almost an afterthought when the United States Supreme Court weighed in the same day by unanimously ordering the Florida Supreme Court to explain its earlier ruling extending the deadline for the hand recounts.
Gore went back to the Florida Supreme Court asking it to overturn the lower judge’s ruling upholding the Harris certification. Despite Baker’s antipathy toward the state high court, he and his advisers convinced themselves the Florida justices would have no choice but to uphold the ruling. Once they did that, it would be over and Bush would be president. But on December 8, the Florida Supreme Court ruled 4 to 3 to order manual recounts in all counties where the machine recount had flagged significant undervotes. Baker was beside himself. “Florida is a state where the zombies don’t stay dead,” he groused.
With Bush’s permission, Baker ordered the legal team to go back to the United States Supreme Court; a day later, the high court voted 5 to 4 to halt the manual recounts until the justices could decide the case on the merits.
BAKER DID NOT GO to Washington for the oral arguments on December 11, leaving the case to Theodore Olson, at that point in his career already one of the country’s most experienced Supreme Court litigators. Throughout the oral argument, the five most conservative justices seemed to signal sympathy toward the Bush case. At one point, when Olson might have been conceding a point, Justice Antonin Scalia interrupted and made sure to steer him back to his original position. At another, Justice Anthony Kennedy nudged Olson toward the argument that the justice himself considered most compelling. “I thought your point was that the process is being conducted in violation of the Equal Protection Clause and it is standardless,” Kennedy told him. Taking the hint, Olson readily agreed.
The day after the arguments, Baker and the rest of the team in the Tallahassee headquarters settled in for hours of waiting, like an Election Day with nothing to do but sit tight until returns started coming in. Don Evans and Benjamin Ginsberg decided to walk up to Main Street to get their shoes shined on the theory that if they were out of touch something would inevitably happen. It did not. As evening approached, Baker and about a dozen others went out for dinner to a steakhouse popular with state lawmakers and lobbyists called the Silver Slipper, whose claim to fame was its bacon-wrapped prime rib—or, for the health conscious, its bacon-wrapped scallops. They got a private room and had the restaurant staff wheel in a television to watch in case the court delivered its ruling. After a meal spent swapping stories, no news had yet come in, so they returned to the Republican headquarters.
Back on the third floor, they closed the blinds to keep news cameras from getting candid shots. Then the phone rang. The court was about to deliver its decision. “That was one of those sort of heart-pounding moments and everybody got real tense and I remember things getting pretty quiet,” Ginsberg said. Baker, wearing a green Michigan State sweatsuit, waited with the rest of the team until the fax machine began pumping out copies of the various opinions released by the justices. Joining by speakerphone was Theodore Olson, who had been having dinner at the McLean, Virginia, home of his friend, Kenneth Starr, the former independent counsel whose investigation of Bill Clinton in the Monica Lewinsky affair had led to impeachment.
The campaign aide Ted Cruz, who had previously served as a Supreme Court clerk, rushed into Baker’s office with the opinions, which were complicated and unclear at first.
“What does it say?” Baker asked.
Cruz read for maybe five minutes, trying to make sense of it. Then he called out, “It says it’s over, we won!”
The final decision was fractured and complicated. Seven justices accepted the equal protection argument that Baker and his team advanced, with Justices Stephen Breyer and David Souter joining the five more conservative members of the court. But Breyer and Souter believed the solution to the problem was to send the matter back to the Florida Supreme Court with instructions to set a single uniform standard for counting ballots. What no one outside the court knew at the time was that Anthony Kennedy, the swing vote, during a closed-door conference had seemed to agree with them, giving the liberals the majority. But Kennedy soon flipped back to join the other conservative justices, deciding that there was not enough time to rectify the matter before the legal deadline to certify the results. Therefore, on a 5 to 4 vote, the court ordered the count to simply stop. Harris’s certification would stand.
Journalists on television struggled to make sense of the long opinions live on the air and it took a few minutes for the bottom line to sink in: The recount was over. Bush and Cheney had won. Baker had pulled it off.
The phone rang in Tallahassee. It was Bush calling from Texas.
“Good evening, Mr. President-elect,” Baker said with a note of triumph.
Around him, the room erupted in cheers.
Bush, who was already in bed in Texas when the ruling came down, had been watching the conflicting reports on television and wanted to be sure he understood what it all meant. Baker assured Bush that the fight was over. He was headed to the White House.
A couple minutes later, Don Evans’s mobile phone rang. “It’s Big Time,” Evans said, using the wry nickname Baker had given to Cheney, who had been overheard using that phrase when Bush referred to a New York Times reporter as a “major league asshole.” Evans handed the phone to Baker.
“Hello, Mr. Vice President–elect,” Baker said.
“Thank you, Jim,” Cheney said. “And congratulations to you. You did a hell of a job.” Teasing his old friend, Cheney added: “Only under your leadership could we have gone from a lead of 1,800 votes to a lead of 150 votes.”
IN THE END, the official final margin was 537 votes out of nearly 6 million cast in Florida, a difference of just 0.009 percent. Bush and Cheney had lost the popular vote nationally but held on to the slimmest of leads in Florida to win the Electoral College with 271 votes, just one more than needed. The decision Baker had extracted from the Supreme Court accomplished what he needed it to do and he had won on the larger fairness point in a 7 to 2 vote. But since the five justices who made up the central majority in Bush v. Gore were the five most conservative on the court, the ruling was indelibly marked by the appearance of partisanship.
Indeed, the justices seemed as focused on the bottom line as they were on philosophical consistency. Conservatives who usually railed against federal court intervention in state matters embraced a novel equal protection argument that they had never before applied to the messy process of vote counting. Liberals who did not typically hold back when it came to second-guessing state decisions they deemed suspect suddenly argued for judicial restraint. As much as justices liked to present themselves as neutral arbiters, they were part of a political system too. Sandra Day O’Connor had been overheard at an election night party bemoaning Gore’s apparent victory—“this is terrible,” she had said before getting up and leaving the room—and all the justices seemed to be grasping for constitutional arguments to justify the outcome benefiting the candidate associated with their ideological leanings.
For years to come, disgruntled Democrats would accuse Baker of orchestrating the theft of an election. In reality, it was more complicated. Given the confusion of the butterfly ballot, problems with voter rolls, disenfranchisement of African American voters, machine errors, and other issues that resulted in tens of thousands of ballots being thrown out, it seems quite likely that more Floridians who showed up at the polls on November 7, 2000, intended to support Gore. But many of these problems were not resolvable by the counties or the courts in the days after the election. No one, for instance, could arbitrarily reassign votes for Patrick Buchanan in Palm Beach simply because it seemed implausible that they were actually meant for him.
As for the ballots that could be tabulated, two independent recounts later conducted by news organizations showed that Bush and Cheney would still have won even if the statewide hand recount of undervotes ordered by the Florida Supreme Court or the more limited recount in four Democratic counties sought by the Gore campaign had gone forward. Only if the overvotes statewide had been counted would Gore have had a chance—but neither he nor anyone else had requested such a recount given that it had no basis under Florida law. The Supreme Court’s decision in Washington did not so much hand the election to Bush as it ended a flawed and problematic process—and did so without the virtue of certainty that would have given Bush’s presidency more public legitimacy.
None of that, however, was a given during the climactic thirty-six days in Florida, which came down to a raw struggle for power by two parties willing to toss aside long-held convictions in the quest for victory. No one was better suited to lead such a contest than Baker, who even in the twilight of his career demonstrated his mastery of politics and flexible philosophical moorings. “It’s easy to construct a scenario where if it had not been for Jim, we wouldn’t have prevailed,” Cheney said years after leaving office.
For Baker, it was a moment of vindication. He had rescued the Bush family after failing eight years earlier. There would be another Bush term in the White House after all, albeit for the son rather than the father. “I don’t think it was a contrived second chance from the family or a contrived effort by Jim Baker to restore some relationship,” Andy Card said. But whatever the intent, he added, that was the effect: redemption. “Once again,” Card said, “Jim Baker rode the white horse to lead you to victory.”
Was it statesmanlike? Maybe not. But Baker had proved once again that there was no better fixer in American politics.