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Take the Watergate Label Off Bork : Role in Cox Firing Is Not the Issue--What He Would Bring to Court Is

<i> Philip A. Lacovara is an attorney in the firm of Hughes Hubbard & Reed in Washington</i>

Twice in his life Robert H. Bork has been at the core of national political controversy. In October, 1973, as the solicitor general of the United States, he followed President Richard M. Nixon’s order to fire Watergate special prosecutor Archibald Cox--an order that both of Bork’s Justice Department superiors, Atty. Gen. Elliot Richardson and Deputy Atty. Gen. William Ruckelshaus, refused to obey.

Their refusals cost them their jobs. Bork’s action ignited what the President’s chief of staff, Gen. Alexander M. Haig Jr., later described in military metaphor as the “firestorm” that forced Nixon to accede to the appointment of a new special prosecutor, Leon Jaworski, and thus to seal his own fate.

Now President Reagan has decided to promote his 1982 appointee to the federal appeals court in Washington and install him in the seat being vacated by retiring Supreme Court Justice Lewis F. Powell Jr. Along with sharp debate over whether Judge Bork is “too conservative,” especially to fill the place of a centrist justice on a closely divided court, memories of the “Saturday Night Massacre” haunt his nomination. Sen. Edward M. Kennedy (D-Mass.), for example, in announcing his resolute opposition, declared that “the man who fired Archibald Cox” should not be “rewarded with a place on our highest court.”

Fourteen years ago I survived the Saturday Night Massacre. As Cox’s counsel, I was one of his two senior deputies, and I stayed on to serve with Jaworski in the same capacity. I believed then, and I remain convinced today, that Bork made the wrong decision when he decided to execute Nixon’s directive. Nevertheless, I am equally convinced that his decision has no real bearing on whether the Senate should confirm him to be an associate justice of the Supreme Court.

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Shortly after Solicitor General Bork fired Cox, deputy special prosecutor Henry Ruth and I met with Bork, with whom I had recently worked when I was serving as the deputy solicitor general and he was awaiting confirmation as the solicitor general. Bork explained to me, as he has done publicly many times since then, why he had done what Richardson and Ruckelshaus would not do, even at the cost of their public careers.

None of the three doubted that, as the Chief Executive, Nixon had the constitutional power to order the dismissal of a subordinate officer of the executive branch, which is what Cox technically was. Richardson, however, had pledged to the Senate Judiciary Committee as part of his own confirmation process that he would commission and protect an independent investigation of the Watergate scandal, and he concluded that to obey the President’s order would be to renege on that pledge. He chose to resign instead. As his deputy, Ruckelshaus felt bound by the same commitment, and was fired for declining to yield.

Bork, however, concluded that he was not a party to that commitment. He believed that the President had the constitutional right to order the Justice Department to sack Cox for “insubordination"--Cox’s insistence on pursuing White House tapes that the President had refused to produce in response to a court-ordered subpoena--and that Bork’s own refusal to obey would establish a pattern that would have compelled every other Justice Department official to fall on his sword rather than to submit. Bork explained that it was his concern about preserving the rest of the operating leadership of the Justice Department that persuaded him to sign the dismissal order.

My own view was and is that, as Bork predicted, no other presidential appointee would have been willing to fire Cox if Bork himself had declined to do the deed. But I doubted then, as I do today, that the President and Gen. Haig--so sensitive to Vietnam War “body-count” figures--would have been so bloodthirsty as to have slaughtered a dozen or more of the President’s own Justice Department officials in the search for one willing to bend. Thus, if Bork had said no, his recalcitrance might have averted the massacre.

That, however, was and is merely my surmise. We shall never know, of course, but Bork’s explanation was reasoned, plausible and apparently sincere. I have never had any doubt about his motives in that unhappy affair. He was deliberately not seeking to aid the cover-up that the White House was directing. Indeed, at our first meeting right after the Cox dismissal he was careful to emphasize that he had done nothing to revoke the regulations that Atty. Gen. Richardson had issued chartering the special prosecutor’s office, and he assumed that the large staff that Cox had assembled would continue its investigation. That judgment turned out to be crucial, for it enabled the survivors of the massacre to obtain prompt court protection for the integrity of the investigative files and the autonomy of the special prosecutor’s office, while the firestorm was billowing and ultimately forcing the President himself to back down and agree personally to the appointment of a new special prosecutor.

Thus, in a time of extraordinary tension, Bork made a difficult and controversial decision that reflected his assessment of both constitutional law and the public interest. The decision certainly was not self-evidently correct. Nor, however, was it self-evidently wrong, either as a matter of law or as a matter of policy. A few decisions that a person in public life makes may so clearly expose a basic flaw in character or intellect that they disqualify the person from ever again enjoying public trust and confidence; Bork’s decision in October, 1973, to obey a presidential directive is not among them.

The real issues confronting his confirmation are two: First, does he have the professional background that qualifies him to sit at the apex of the federal judiciary? Second, is his view of the law and of the role of the courts so far from the mainstream that the Senate may properly refuse to “advise and consent” to his appointment.

The second question becomes tangled in contrasting views of the Senate’s legitimate role in the process and in highly charged debates about where the mainstream flows. Commentary on those issues will consume volumes before the Senate votes.

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The first question, however, is easy to answer. Bork is one of the few lawyers in this century who has been--like Louis D. Brandeis, Benjamin N. Cardozo, Charles Evans Hughes and Harlan F. Stone more than 50 years ago--an obvious and uniformly recognized candidate for the Supreme Court (although all of them, too, faced some degree of opposition for being too “liberal” or too “conservative”). He has successfully trod each of the three paths that have led others to the court: practicing lawyer, legal scholar and judge.

Unlike many other justices, Bork would join the Supreme Court after having spent most of his professional life thinking and writing about the great issues of the day. His approach to those issues is well defined, and it reflects two basic themes. One of them plants its roots deep in the text of the Constitution. Unless the text of the Constitution clearly, or by necessary implication, forecloses the issue, courts must defer to the policy judgments made by the elected branches of government, even if the judge views those judgments as unwise or distasteful.

The other central theme of Bork’s jurisprudence is ironically activist for a judge who wears the conservative emblem. Since the legislature cannot overrule court decisions on constitutional questions, the Supreme Court has a broader role in reexamining its constitutional precedents than in reconsidering more mundane decisions. This principle empowers and indeed obliges the Supreme Court justices, in Bork’s view, to engage in a continuing process of determining whether they--or their predecessors--erred in finding a constitutional right or declining to do so.

It is that latter view, of course, that suggests that as a justice Bork would feel not only free but also compelled to reexamine controversial Supreme Court decisions on abortion, reapportionment, affirmative action, capital punishment and aid to religious institutions.

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Bork has never sought refuge in equivocation or ambiguity. His blunt views no doubt will make him a clear target during his confirmation hearings. But, as the Saturday Night Massacre shows, he does not hide from controversy. If he is confirmed, he will surely generate more of it.


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