The Magazine

Servant of the Law

The experience, and good sense, of Robert Bork.

Mar 4, 2013, Vol. 18, No. 24 • By J. HARVIE WILKINSON III
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The book recounts meetings with Nixon, Agnew, White House Chief of Staff Alexander Haig, and numerous other Justice Department officials and political functionaries who constantly drew Bork away from his preferred legal briefs and arguments.

That the ostensibly apolitical Bork survived the political turbulence of Nixon’s last months and days was no mean accomplishment. He did so because he had the good sense to avoid compromising situations, and because he sized up people well. As to top Nixon aide John Ehrlichman: “Whenever I saw him he lifted his chin, giving me a Caesar-like profile.” Other Nixon officials are accurately described; for example, Attorney General Richard Kleindienst coming in for praise, or Chief of Staff H. R. “Bob” Haldeman leaning over the balcony of a hotel room and yelling to an assistant, “Halt, aide!”

The centerpiece of this book is what has come to be called the Saturday Night Massacre. The events leading up to it are well known. Attorney General Richardson, almost as the price of confirmation, was pushed to nominate a special prosecutor to investigate the Watergate affair. The appointment of Harvard law professor Archibald Cox incensed Nixon, for Cox had been John F. Kennedy’s solicitor general and was closely connected to the president’s implacable foe, Senator Edward Kennedy. As the investigation proceeded, tensions between Nixon and Cox only grew, until, on October 20, 1973, Nixon and Haig asked Richardson to fire Cox. Richardson refused and resigned. The deputy attorney general, William Ruckelshaus, refused as well, and tendered his resignation.

As solicitor general, Bork was next in line. Amidst the gathering chaos of that Saturday evening, the old Marine stepped in and recognized that some semblance of order had to be preserved.

The conventional list of Watergate honorees is familiar. It includes, in addition to Richardson: Ruckelshaus; special prosecutors Cox and Leon Jaworski; Senate Select Committee on Presidential Campaign Activities members Sam Ervin and Howard Baker; the House Judiciary Committee Republicans who voted for impeachment; John Sirica, who, as chief judge for the U.S. District Court for the District of Columbia, ordered Nixon to turn over his tape recordings of White House conversations; and the members of the Supreme Court, who vindicated the principle that American presidents are not kings but subjects of the given law.

Including White House counsel John Dean and investigative reporters Bob Woodward and Carl Bernstein on the list may be more controversial, but they, too, played their part in ending what were serious abuses of executive power in the Nixon White House.

The problem is not that the conventional Watergate honor roll is somehow wrong, but that it is woefully incomplete. Honorable as their intentions were, these individuals and institutions proceeded with complete assurance that any actions against Nixon would meet sustained applause from the precincts of elite opinion, which harbored a lifetime of assorted grievances against the president. (These would include his aggressive anti-Communist campaigns against Jerry Voorhis and Helen Gahagan Douglas, his unceremonious exit from his 1962 California gubernatorial defeat, the Alger Hiss affair .  .  . take your pick.)

But Gerald Ford and Robert Bork had exactly the opposite expectation. Ford knew, in pardoning Nixon, that the public would be outraged and conclude that a deal had been struck. Bork knew that, in firing Cox, he would be blasted for attempting to promote his chances for attorney general or the Supreme Court. Yet Bork understood well enough the sacrificial nature of his act. After the firing, he writes, he got into his Volvo for a ride toward “oblivion,” wishing that “circumstances had allowed me to make the Massacre a murder-suicide.”

Ford’s actions may have sealed his defeat in the 1976 presidential race, and Bork’s decision at least chilled the Senate reception of his nomination to the Supreme Court. Yet Ford, through the pardon, spared his country an ordeal of immeasurable proportion. As for Bork, the firing of Archibald Cox

was a duty to justice—to keeping the government running—that convinced me to follow the president’s order, and to remain long enough to hold together the Watergate investigation and the Justice Department as a whole. Without a soldier in the streets, we managed a transfer of power that would have shattered many nations.