Judicial

The death of Robert Bork this past December brought forth tributes to a man bearing no resemblance to the grotesque caricatures that emerged during the long debate over his 1987 nomination to the Supreme Court. Widely noted were his unswerving loyalty to friends and principles, his seminal intellect, his acerbic but not unkind humor and wit, and his lifelong sense of service and duty to his country.

Yet his life will never be free from the controversy that trails those who actually have something to say. The dust jacket of this book, a memoir of his service in the Nixon administration, shows a young Bork with cigarette in hand and his trademark red beard. Had he stopped smoking and started shaving, some things might have turned out better for him; but then again, that wouldn’t have been Bob. His willingness to buck convention was his strength. He lived life on his terms.

The enigma that was Richard Nixon will always tantalize historians. Bork’s view of him is largely respectful, but also clear-eyed. Nixon possessed the gift of high intelligence, and was capable of penetrating strategic insights, especially in foreign affairs. He was also insecure and paranoid. The tragedy of it all was that these latter traits seeped down into his administration, with well-known consequences.

Bork recounts meeting with his friend, Yale law professor Alexander Bickel, to mull over an offer from the White House that Bork resign his position as solicitor general and take charge of Nixon’s Watergate defense. He and his wife Claire “collected Bickel and turned around to head home.”

When we reached our street, Turkey Run Road, I suggested that Claire stop the car so Bickel and I could get out and walk the dark, semi-rural road home. It’s an indication of the paranoia of the time that I really wanted to be someplace where it was impossible to be overheard.

On another occasion, Bork and Attorney General Elliot Richardson visit the White House to discuss the timing of indictments against Vice President Spiro Agnew for taking bribes. The two duck into the bathroom on the way to the Oval Office, and “as soon as the door to the men’s room closed behind us, Richardson turned on all the faucets in the expectation that the noise of running water would make our conversation inaudible if anybody was eavesdropping electronically.”

Good grief! Granted that Washington is a city of schemers, how is government to function at this level of mistrust? The idea that such precautions may have actually been necessary is all the more unsettling. The entire “atmosphere and the level of distrust” in the Nixon White House had, in Bork’s view, “an air of low comedy about it.” Bork served both Nixon and Gerald Ford as solicitor general, an office within the Department of Justice which possesses both high prestige and a dual personality. The solicitor general’s chief, though not sole, duty is to represent the government before the U.S. Supreme Court. Both the solicitor general and his principal deputy are political appointees, and the office thus naturally reflects an administration’s priorities. But if the office becomes too closely entwined with the president’s political agenda, it forfeits its claim to neutrality under law and its very credibility before the Court.

Bork was not, by nature, a political animal. He had a high opinion of democracy as a system but a rather low opinion of politicians as a breed—an attitude that unfortunately was not sufficiently disguised in his Senate confirmation hearings. Bork spent much of his life trying to separate law from the corrupting influences of politics. When he became solicitor general in June 1973, he understandably anticipated a job that would be any great lawyer’s dream.

The irony was that events thrust this politically pristine soul into the most politicized environment a solicitor general had ever experienced. As Bork puts it, he had to

respond to Supreme Court Justice William O. Douglas’s order that our military stop bombing in Cambodia, file briefings for the prosecution of Vice President Spiro T. Agnew for taking bribes while governor of Maryland, discharge Archibald Cox as special prosecutor in the Watergate affair, and secure the continuity of the Watergate investigation until we found a replacement for Cox. Thankfully, I was spared from dealing with the Yom Kippur War in the Middle East, which occupied others in the administration at the time.

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