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.
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.
It is often difficult for my liberal friends to fathom why the rejection of Robert Bork’s Supreme Court nomination hit the conservative community so lastingly, and so hard. It is not that we are brittle, or fail to recognize that life moves on. It is not that we fail to understand the case against him (i.e., that he was too fond of abstraction, and somehow failed to fully grasp or comprehend the lives of Americans outside his sphere). It is simply that an injustice was done.
One need not subscribe to Bork’s theory of originalism to believe that there surely should have been a place for him on the U.S. Supreme Court. He would not have been the whole Court, but simply one of nine. His exquisite and powerful intellect would have been a thing to behold. He would have joined the great debate on whether the empathetic selection of winners and losers is a task best assigned to the elected representatives who enact law or to the appointed judges who apply and interpret it. And he would have brought home, as few others could, the full extent to which this nation’s fortunes rise or fall with the rule of law. Even those who disagreed with him would have been been required to reengage and reassess, and the American legal dialogue would have been immeasurably enhanced.
So much for the what-ifs and the might-have-beens. Was his influence greater precisely because he never served on the Court? This slender volume, completed shortly before his death, may not be the equal of the magisterial A Time to Speak (2008), which reminds the reader in its subtitle that the 750-page volume represents no more than the selected writings of Robert Bork. But Saving Justice is a warm, generous, honest memoir—-a fitting final contribution from a man who served his fellow citizens well during a long and distinguished life.
J. Harvie Wilkinson III, who sits on the Fourth U.S. Circuit Court of Appeals, is the author, most recently, of Cosmic Constitutional Theory: Why Americans Are Losing Their Inalieanable Right to Self-Governance.