Nominee's small role in recount

High court pick was one of many lawyers giving advice in Florida in 2000

July 21, 2005|By Peter Wallsten | Peter Wallsten,LOS ANGELES TIMES

WASHINGTON - As the 2000 presidential recount battle raged in Florida, a little-known private attorney named John G. Roberts Jr. traveled to the state capital to dispense legal advice.

Roberts operated in the shadows during at least some of those 37 days, never signing a legal brief and rarely making an appearance at the makeshift Tallahassee headquarters for George W. Bush's legal team. But now Roberts has been nominated to the Supreme Court that settled the recount by putting Bush into office - replacing the swing vote in a 5-4 case. And his work in Florida during that time is coming into focus, giving critics ammunition to paint a respected judge with an apparently unblemished legal career as an ideological partisan.

Republican lawyers who worked on the recount said yesterday that Roberts advised Gov. Jeb Bush on the role that he and the Florida Legislature might play in the recount battle. At the time, when Republican officials feared that Al Gore might win a recount battle in court, Republican state lawmakers were devising a plan to use their constitutional power to simply assign the state's electoral votes to Bush - a plan that drew a sharp rebuke from Democrats.

Responding to questions yesterday about Roberts' recount role, a spokesman for Jeb Bush's office said that Roberts was recommended to the governor and that the two did not know each other before 2000.

"Mr. Roberts, one of the pre-eminent constitutional attorneys in the country, came to Florida in 2000 at his own expense and met with Governor Bush to share what he believed the governor's responsibilities were under federal law after a presidential election and a presidential election under dispute," said the spokesman, Jacob DiPietre. "Judge Roberts was one of several experts who came to Florida to share their ideas." DiPietre went on to call Roberts "a man of integrity" who "personifies the qualities of an outstanding jurist with his even temper and respectful demeanor."

Critics, though, were quick to say yesterday that the judge's role in the 2000 election - however minor - suggests that he is not merely the legal scholar that his supporters might believe.

"What's interesting is that only now is it coming to the fore that John Roberts was part of that," said Ralph Neas, president of the liberal group People for the American Way. "He always created an impression of being above the political fray."

Neas said Roberts' Florida experience was not necessarily a legitimate reason for senators to oppose his nomination, because practically every major legal scholar on both sides was called into service during the Bush-Gore fight. And his was a bit part compared with such players in the saga as then-Secretary of State Katherine Harris and Jeb Bush, the younger brother of the candidate.

But Neas added that coupled with Roberts' work in the Reagan and first Bush presidential administrations, the recount could become a factor. "This is a legitimate area of inquiry. How partisan is he?" Neas asked.

It is not clear how much time Roberts spent in Tallahassee or what exactly he told the governor. Lawyers and others who worked on the Bush campaign's behalf said yesterday that they have little if any recollection of Roberts from that period.

U.S. Rep. Tom Feeney, a Republican who was speaker of the Florida House of Representatives at the time, said his legal team originated the concept of having the Legislature vote on assigning Florida's presidential electors. The rationale was a constitutional provision that lets state lawmakers decide how electors are chosen - but Feeney said he has no memory of Roberts. Instead, the House was advised by scholars and in-house lawyers.

After the recount, in 2003, Roberts' career got a boost when he was nominated by the new president to the federal appeals court - one of many Republican recount lawyers to win posts during the Bush administration. That job paved the way for this week's nomination.

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