- - Friday, March 22, 2013

The rule of law, along with a market economy, is the primary source of our nation’s success. At the highest levels, the law must resolve difficult, complex and sometimes emotionally charged and ethically ambiguous situations. For the law to maintain its historic place as an indispensable institution and the glue of an otherwise fractious society, it must continue to attract highly intelligent, strong, principled professionals who can stand up to public opinion, political demagoguery and even a president.

Robert Bork was such a man, and this is confirmed by his last book before his death in 2012, “Saving Justice: Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General.”

Of course, Judge Bork is best known for his role in events more than a decade apart: the firing of President Nixon’s special prosecutor and the controversy surrounding his nomination by President Reagan to the Supreme Court. He was also a legal scholar, a law professor at Yale for 19 years, a judge on the U.S. Court of Appeals for the D.C. Circuit and the author of many books.

“Saving Justice” takes us inside the fascinating events and conversations Bork had with Nixon as the president dealt with his own political survival. The book adds a new dimension to the popular understanding of Nixon’s performance during that time.

In January 1973, Bork was confirmed as solicitor general. I especially can appreciate the surreal atmosphere into which he was soon thrust as Watergate unfolded. I came to Washington the next month, having been selected by Sen. Howard Baker, Tennessee Republican, to be the minority counsel on the Watergate Committee. As Bork and I began our respective work down the street from each other, neither of us had a clue as to what was about to unfold.

Bork takes us through the events that led to the “Saturday Night Massacre” and his dealings with the personalities involved — including Nixon, Alexander Haig and Attorney General Elliot Richardson — as well as his own ethical dilemma. At the Justice Department, Richardson had appointed Archibald Cox, a close friend of the Kennedys, as special counsel to investigate the Watergate matter. Cox then proceeded to hire a staff of liberal Democrats.

When Nixon aide Alexander Butterfield revealed the existence of the White House taping system, Cox demanded that the tapes be turned over to him. The president refused, but Cox persisted, calling a news conference to announce his rejection of Nixon’s offer of compromise. Nixon ordered Richardson to fire Cox, but there was a problem: Richardson and his deputy William Ruckelshaus had promised the Senate, as a condition of Richardson’s confirmation, that he would fire Cox only for “extraordinary improprieties.” Neither Richardson nor Ruckelshaus thought Cox’s actions rose to that level, so they thought that they had no alternative but to refuse the president’s order and resign.

The entire mess fell into Bork’s lap, as next in the line of authority at Justice. It was a question of duty: whether to carry out the president’s directive or resign. Many considered the solution to be simple: Bork must stand with Richardson, not Nixon. Besides, everyone wanted to listen to the tapes.

The issue wasn’t that simple, however. Although Bork does not express this view, had he resigned with the others, he would have enjoyed wide acclaim from his peers and others. Actually, Nixon had made it pretty easy for him to justify resigning. For Bork, though, the issue was one of presidential powers, the good of the Justice Department and the administration of justice.

First, the president had a plausible claim of executive privilege with regard to the tapes, a claim that has been exercised by virtually all presidents to protect the disclosure of information. In Bork’s mind, the president had clear legal authority to fire Cox, as well as a good reason to do so after Cox’s news conference. A lower-level executive officer could not publicly defy the president on international television, especially when a Middle Eastern crisis was pending.

Also, if Bork resigned, an acting attorney general would have to be appointed. What person worth their salt would take the job under such circumstances? Bork could envision mass resignations at the upper levels of the department after another wrong move.

Finally, Bork had not made the same pledge to the Senate that Richardson made. Although Bork’s original inclination was to fire Cox and then resign, Richardson prevailed upon him that for the good of the department he should not resign.

After he fired Cox, Bork supported the right of the remaining investigative team to use the courts to pursue the tapes, as well as Nixon’s right to defend his legal position. For Bork, it was a legal issue, not a political one. It was not his job to help remove the president; there were constitutional provisions for removing an unwanted president.

In his 1987 confirmation hearings to the Supreme Court, Bork was steadfast in his long-held views that constitutional law had become a cultural and political playground for judges, and that “originalism” is not only the proper method of judicial interpretation, but the hope for preserving our constitutional structure. The rejection of his nomination and the malicious campaign against him has remained an ugly stain on the reputation of the Senate, not his.

During his confirmation hearings, Bork stated this simple but profound thought: “Our constitutional structure is the most important thing this nation has, and I would like to help maintain it and to be remembered for that.”

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