- - Tuesday, April 2, 2013

By Robert H. Bork
Encounter Books, $23.99, 200 pages

As one of Robert Bork’s antitrust students, and one of the few student or faculty conservatives at Yale (then or now), I was delighted when Richard Nixon announced in December 1972 that he was nominating Bork to be solicitor general. Ralph Winter, a close friend of Bork’s and another rare, right-leaning professor (and later chief judge of the 2nd Circuit), joked that the Yale Daily News report on the event should begin, “Yesterday, President Nixon nominated 20 percent of all the conservatives at Yale Law School to be solicitor general.”

Beyond the philosophical appeal, Bork’s appointment was entirely merited, and marked one more step on what many hoped would be Bork’s road to the Supreme Court. And so it should have been. Unfortunately for Bork and the country, however, mean-spirited, mendacious, ideological opponents and a confirmation process inadequately managed by the Reagan administration kept Bork off the Supreme Court in 1987.

“Saving Justice” depicts the unexpected selection of Bork as solicitor general and his extraordinary experiences dealing with the “cancer on the presidency,” as John Dean once described Watergate to Nixon himself, particularly the “Saturday Night Massacre.” Much of the partisan opposition to Bork rested on his decision as solicitor general to follow Nixon’s order to fire Watergate special prosecutor Archibald Cox. Those who knew the truth at the time understood that Bork had, in reality, acted with great courage, saving the Department of Justice from collapse (hence the memoir’s title), and quite likely preventing a grave constitutional crisis from spiraling completely out of control.

For those too biased or lazy to check the facts, Bork forever thereafter carried the unfair label of “the man who fired Archie Cox” without understanding his service to the Constitution in doing just that. Indeed, it was partially fear of confronting Watergate that prevented Bork’s nomination earlier in the Reagan administration, and raised the stakes so high in the 1987 confirmation battle, just one year before a presidential election when Democrats desperately hoped to reverse the “Reagan Revolution.”

There is much else in “Saving Justice,” however, such as Bork’s instructive recounting of Justice William O. Douglas’ role in the Nixon administration’s military offensive into Cambodia, of particular salience today as we debate using armed, unmanned aerial vehicles against terrorists. In 1973, the American Civil Liberties Union (ACLU), not theretofore known for national-security sagacity, decided that Nixon’s decision to attack North Vietnamese safe havens and supply lines in Cambodia was unconstitutional. Congress had never expressly declared war in Vietnam, and many thought its 1964 Gulf of Tonkin Resolution authorizing military force had reached its outer limits at best. So, who better to resolve these mortal issues of war and peace than federal judges?In district court, the ACLU sought to enjoin Nixon’s incursion as unconstitutional because there had been no declaration of war. Although the district court agreed, the 2nd Circuit stayed its injunction pending appeal. The ACLU asked Thurgood Marshall, the appropriate circuit justice, to lift the stay, but he declined, correctly. Undaunted, the ACLU went to Douglas, who happily weighed in to block the ongoing U.S. offensive. Fortunately, the full court shortly thereafter reversed Douglas (who bitterly resented it), thus reviving the stay and allowing Nixon’s offensive to continue.

Douglas analogized the Cambodia incursion to a death-penalty case (an analogy doubtless appealing to drone opponents) asserting that, “the present case involves whether Mr. X (an unknown person or persons) should die,” and that denying the ACLU “application … would catapult our airmen as well as Cambodian peasants into the death zone.” His political biases were evident when Douglas wrote of “Cambodian farmers whose only ‘sin’ is a desire for socialized medicine .” He concluded that the judiciary was justified in intervening in the commander in chief’s tactical military judgments, even as Congress, the other political branch, after fierce and heated debate, had already legislatively imposed a deadline only two weeks away. Douglas’ opinions should be required reading in today’s drone debates, with proposals circulating that a special court could oversee possible attacks against U.S. citizens aiding al Qaeda and other terrorist groups. It will give new and forceful meaning to the phrase “judicial restraint” in areas where courts lack competence both legally and politically. These are clearly matters for the elected political branches to thrash out.

Given the enormous historical importance of Nixon’s resignation and disgrace, we can only regret that Bork was not able before he died to write a substantially longer memoir. Not only was Bork a central participant in the entire Watergate catastrophe, but his insights on the still-evident consequences would have been extremely useful in a time when too many of our politicians and the commentariat seem to have the attention span of fruit flies. But for what he did leave us, in “Saving Justice” and so much else, we can be thankful.

John R. Bolton, former U.S. ambassador to the United Nations, is a senior fellow at the American Enterprise Institute.

Copyright © 2022 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.

Click to Read More and View Comments

Click to Hide