Liberals Likely to Cite Bork’s Firing of Watergate Special Prosecutor Cox

Liberal foes of Judge Robert H. Bork’s nomination to the Supreme Court, knowing they will need more than a difference in philosophy to derail his appointment, are expected to look to Bork’s role in the Watergate affair as a peg on which to hang their opposition.

It was Bork, acting on the orders of President Richard M. Nixon, who fired Watergate special prosecutor Archibald Cox on Oct. 20, 1973--after then-Atty. Gen. Elliot L. Richardson and Deputy Atty. Gen. William D. Ruckelshaus refused and resigned.

The events of that day and night, which became known as the Saturday Night Massacre, riveted the nation’s attention and marked a key turning point in the unfolding scandal.

Bork has defended his actions by saying the firings never threatened the Watergate probe and that if he had quit as acting attorney general rather than obey Nixon, the Justice Department would have been crippled by mass resignations.

Some Disagree

But not all who lived through the experience agree. “Even if there had been a wave of resignations, which I don’t think would have happened, Bork’s refusal would have created a generation of lawyers who learned how to say no to orders they considered unjust,” said Carl Feldbaum, who served as an assistant special prosecutor in the Watergate prosecution team.

In the Senate confirmation proceedings on Bork’s nomination, Bork’s opponents are expected to cite the episode in questioning Bork’s judgment and backbone and perhaps in suggesting he might have been currying favor for future promotions or appointments.

Nixon issued the order to fire Cox after charging that Cox had exceeded his authority by demanding the White House tapes, which later showed the President’s role in the cover-up of the Watergate conspiracy.

Richardson and Ruckelshaus resigned on the grounds that they had pledged to Congress that they would not remove Cox except for cause. That left the task to Bork, the No. 3 man in the department, who had made no such promise. Richardson and Ruckelshaus urged Bork to stay on if he decided it was proper to fire Cox.

Public reaction to Bork’s action included cars driving around the White House with horns blaring, and a protester wearing a Nixon mask and convict stripes marching back and forth on Pennsylvania Avenue. “Honk for Impeachment” read a sign he held aloft.

Defends Actions

Bork had to defend his actions when he underwent Senate confirmation in 1982 for appointment to the District of Columbia federal appeals court.

“The only thing that weighed against doing what I did was personal fear of the consequences, and I could not let that . . . control my decision,” Bork said.

“At the time I believed the decision to dismiss Prof. Cox was final and irrevocable,” Bork was quoted as saying in the book, “Not Above the Law,” an account of the Watergate prosecution team. “If I did not do it, it would have led to the decimation of the Justice Department, which I did not find acceptable.”

Joseph L. Rauh Jr., a longtime liberal activist who has opposed several conservative Supreme Court nominees in testimony before the Senate Judiciary Committee, said Bork’s performance shows he is unsuitable for the high court.

‘Fired Best One’

“This Administration is trying to end the whole independent prosecutor act and it’s appointing a guy who knows how to end a special prosecutor,” he said. “He fired the best one we’ve ever had.”

Henry S. Ruth Jr., Cox’s deputy who later became the third of the Watergate special prosecutors, said he believed Bork acted honorably throughout the affair and cited Bork’s selection of Houston lawyer Leon Jaworski, an aggressive counsel, to replace Cox.

Ruth, asked if he thought ambition for a possible spot on the Supreme Court might have led Bork to follow Nixon’s order, said: “Even I’m not that cynical. He didn’t act that way. . . . Clearly he didn’t march in lock step with the White House concept to abolish us and make our lawyers part of the Justice Department.”

Guido Calabresi, the liberal dean of Yale School, said: “Bork’s role in Watergate was admirable, not just all right, but admirable.”

Ruth added, however, that “Without addressing Judge Bork as a person, his nomination is a historical irony I wish had not happened. The guy who fired the special prosecutor ends up on the Supreme Court, and Archie Cox is deemed too old for the court”--a reference to the Carter Administration’s refusal to appoint Cox as an appellate judge, citing his age.

Approached by Haig

The book on the Watergate prosecution team, written by James S. Doyle, a member of the unit, said that in the summer of 1973, months before the showdown with Cox, then White House Chief of Staff Alexander M. Haig Jr. approached Bork about becoming Nixon’s head defense lawyer on Watergate matters.

“Bork later told friends that Haig hinted, rather crudely, that this job would be a stepping-stone to the Supreme Court,” Doyle wrote.

Bork, after mulling the matter overnight, told Haig that he would have to hear the tapes if he took the job, which Haig told him was not possible. “Bork convinced Haig he was the wrong man for the job,” Doyle said.