Florida 2000? John Roberts was there

Bush gets to name a Supreme Court justice because he sits in the White House. The man he has chosen helped put him there in the first place.

Published July 21, 2005 4:19PM (EDT)

Republicans railing against Democrats' "obstructionist tactics" in the Senate return again and again to a phrase they like to use: "Elections have consequences." What they mean, of course, is that George W. Bush won the White House, and to that victor go the spoils.

It's not a bad way to frame the argument, the separation of powers and the Constitution's "advice and consent" clause notwithstanding. But when it comes to Bush's nominee to the Supreme Court, there's a bit of a circular quality to it: John G. Roberts helped Bush become the victor in the first place -- and not just by giving a grand to the first Bush-Cheney campaign. As the Los Angeles Times is reporting today, Roberts traveled in the fall of 2000 to the sunny state of Florida, where he played a mostly behind-the-scenes role in helping Bush prevail in the legal fight that followed the disputed presidential election.

Republican lawyers who worked on the recount told the Times that Roberts advised Florida Gov. Jeb Bush on the role that he and the Florida Legislature could play in the fight over the recounting of ballots. "Mr. Roberts, one of the preeminent constitutional attorneys in the country, came to Florida in 2000 at his own expense and met with Gov. Bush to share what he believed the governor's responsibilities were under federal law after a presidential election and a presidential election under dispute," Jeb Bush spokesman Jacob DiPietre told the Times. "Judge Roberts was one of several experts who came to Florida to share their ideas. The governor appreciated his willingness to serve and valued his counsel."

Working on the recount is hardly disqualifying -- as the Times notes, just about every leading constitutional-law type was involved in the case somehow -- but Roberts' role does raise some questions about whether he's really the nonpartisan lawyer and jurist that his proponents would make him out to be. "What's interesting is that only now is it coming to the fore that John Roberts was part of that," People for the American Way President Ralph Neas told the Times. "He always created an impression of being above the political fray, being part of the Washington legal establishment, but not of partisan politics."

Will Roberts be asked about his role in Florida during his upcoming confirmation hearings? Almost certainly. Will he respond? Don't count on it. As Rep. Tom Feeney, a Republican from Florida, told the Times yesterday: "I don't know that there is any political benefit to answering that question."

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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