The ornate courtroom was relatively empty as the Supreme Court justices somberly emerged from behind long crimson drapes to hear arguments on October 31, 1978. Not surprising, I thought, as I took a seat in the small area of the courtroom reserved for the Court’s law clerks: It was hard even for us to get excited about whether an Omaha bank could charge 18 percent interest to its Minnesota credit-card customers despite Minnesota’s law limiting interest on credit cards to 12 percent. Yet most of the 33 law clerks were in the courtroom that morning. Robert Bork was arguing.
Bork was the premier appellate advocate of his time. He had been hired by the Omaha bank after the briefs had been filed, solely to present oral argument. It was a wise decision. The case seemed like a hard one, until Bork put the issue in starkly simple terms. “What we’re being told today is that [charging 18 percent] would be all right if a Minnesota resident drove to Omaha and got his credit card, but not if he sent a letter or an application asking for his credit card.” Hmm. Why hadn’t I, or anyone else, thought of that? Bork was right, and his argument that day turned a close, and possibly losing, case into a unanimous win.
Bork argued his first case in the Supreme Court in October 1973, shortly after he became solicitor general, the third-ranking official in the Justice Department and head of the office that represents the federal government in the Supreme Court. He had prepared for that first argument in a single day, “as if cramming for an exam,” as he recounts in this memoir of his service during the last 15 months of the Nixon administration.
“I don’t advise heading into the Supreme Court with one day’s preparation,” he writes, “but I had no other choice.” He had no choice because he was preoccupied with another matter that was somewhat more pressing: defending the Justice Department’s decision to seek the indictment of a sitting vice president for taking bribes. Spiro Agnew’s venal corruption was, nonetheless, small potatoes by the standards of the Nixon White House: The Watergate scandal had already forced the resignations of Nixon’s top aides, and the I-word was on everyone’s mind as special prosecutor Archibald Cox’s investigation methodically, relentlessly crept closer to Nixon himself.
Bork casts new light on how miserable life in the Nixon administration could be, with the Watergate revelations throwing a suffocating blanket of distrust and suspicion over the White House. For example, to ensure that a private conversation with his dear friend, Yale law professor Alexander Bickel, could not be overheard, Bork insisted that they get out of his own car and walk along the semi-rural road to Bork’s home. He also recounts a scene in which Attorney General Elliot Richardson turned on all the faucets in the men’s room outside the Oval Office to drown out his whispered conversation with Bork in case “anybody was eavesdropping electronically.” Looking back, Bork attributes the “low comedy” in these episodes to “the paranoia of the time,” but such distrust hardly seems irrational given the revelation of Nixon’s secret taping system; and there is more tragedy than farce in the spectacle of Nixon’s attorney general (and former defense secretary) being as wary in a visit to the White House as he would have been in a visit to the Soviet embassy.
#page#Those who live by the audiotape die by the audiotape. On learning of the White House recordings, Cox immediately subpoenaed them — “as any competent prosecutor,” Bork notes, “would be bound to do.” When Cox held a nationally televised press conference to announce his refusal to accept any compromise on his demand for all the subpoenaed tapes, unedited, Nixon ordered Richardson to fire him. The central focus of Saving Justice is Bork’s defense of his role in the Saturday Night Massacre and its aftermath.
Richardson and Deputy Attorney General William Ruckelshaus had made commitments in their confirmation hearings not to fire the special prosecutor absent “extraordinary improprieties,” a standard that they did not believe had been met by Cox’s conduct. Both officials therefore refused to fire him, and resigned. Suddenly, unexpectedly, Bork was the acting attorney general, and he admits that he was “taken off guard.” Those who knew Robert Bork have difficulty imagining him in a state of indecision and confusion; but he admits that he was “a welter of contradictory impulses” as he tried to think through the likely consequences of a decision to fire, or not fire, Cox.
The issue for Bork was not the president’s authority to fire Cox, which was clear, or his grounds, which had been supplied by Cox’s flamboyant press conference. Rather, the question was which course was more likely to ensure that the special prosecutor’s staff, and the Justice Department as a whole, would remain intact and on course. If he refused to fire Cox and resigned, Bork thought, the likely result would be Nixon’s appointment of a White House apparatchik as acting attorney general, and the “dissolution of the special-prosecutor staff and mass exodus in the Department of Justice.” In the end, Bork obeyed Nixon’s order because he was determined “to hold together the Watergate investigation and the Justice Department as a whole.”
We can never know what would have happened if Bork had refused to fire Cox, except that he undoubtedly would have been hailed by the elites as the fourth hero martyred in the Saturday Night Massacre, rather than vilified as Nixon’s hatchet man. He might even have banked enough street cred with the Left to change the outcome of the 1987 Senate confirmation hearings that made his name a verb.
But we certainly know what did happen. Bork held the special prosecutor’s staff together and preserved the integrity of the Watergate investigation, including its authority to go to court to enforce the subpoena for the tapes. He named Leon Jaworski to replace Cox as special prosecutor, and Jaworski successfully defended the subpoena in the Supreme Court, which unanimously rejected Nixon’s claim of executive privilege. The Court’s decision sealed Nixon’s fate; shortly after the tapes were released, with an impeachment trial in the Senate looming, he was forced to resign. No fewer than 48 Nixon-administration officials were ultimately convicted of crimes related to Watergate. In short, Nixon and his men were brought to justice — and justice was indeed saved from corrupt government officials who sought to thwart it.
Bork was quite aware of the price he would pay for firing Cox, and he fully anticipated that “oblivion” awaited him. But there are no men like Bork in oblivion, at least not for long. He continued to serve as solicitor general through most of the Ford administration, distinguishing himself as one of the greatest of all Supreme Court advocates. In 1977, he returned to Yale Law School and to the cause that would become his lifelong work: saving the Constitution from activist judges.
Bork entered the debate over the proper role of the courts in 1971, with the publication in the Indiana Law Review of his seminal article “Neutral Principles and Some First Amendment Problems.” He decried as illegitimate the Supreme Court’s make-it-up-as-you-go fabrication of constitutional rights under Chief Justice Earl Warren. His argument was simply that “a legitimate Court must be controlled by principles exterior to the will of the Justices.” And given that, in our constitutional democracy, courts must “accept any value choice the Legislature makes unless it clearly runs contrary to a choice made in the framing of the Constitution,” Bork argued, it follows that in construing and enforcing the Constitution, a “judge must stick close to the text and the history, and their fair implications, and not construct new rights.”
#page#This theory of constitutional interpretation came to be called originalism, and Bork became its foremost champion, elaborating his argument in speeches, essays, and articles. He was also a lonely advocate, for his views were heretical in the legal academy, which idolized Warren and other liberal-activist judges. But he became a hero to judicial conservatives, and in 1981, Ronald Reagan appointed him to the D.C. Circuit Court of Appeals. Then, six years later, Reagan nominated him to the Supreme Court, to replace the retiring justice Lewis Powell.
“I thought my confirmation was a sure thing,” Bork writes. So did those of us in the Justice Department who were involved in the confirmation process. It is difficult to think of any nominee in American history who presented a better résumé. But because he would be replacing the moderate Powell, the Court’s swing vote, the Left and its allies in the Senate were resolved to defeat Bork at any cost. The low point in the campaign to demonize him came within an hour of the announcement of his nomination, as Senator Edward Kennedy took the floor of the Senate to utter these despicable lies: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution.” Kennedy’s speech went downhill from there.
Bork did not help his cause in the confirmation hearings. The black-and-white photo on the dust jacket of Saving Justice captures the stern visage of Bork that the Senate Judiciary Committee and countless millions saw during his televised confirmation hearings. This image made Kennedy’s monstrous caricature of Bork more credible. Had more of Bork’s warm, charming personal style, and his quick wit, come through during the hearings, the result might have been different.
Bork’s defeat in the Senate embittered him, but did not chase him from the field. He wrote a bestselling book about the experience, The Tempting of America, that featured his most powerful explication of originalism. The idea that the original meaning of the Constitution is determinable, unchanging, and binding on the courts is now generally accepted — even among the law professoriat — as a legitimate, albeit still controversial, theory, largely because of Bork’s scholarship.
Saving Justice completes the Bork canon. Written over the course of a long, debilitating illness, it was published after his death. It pays Bork’s debt to history, revealing riveting, intimate details about some of the most wrenching events in our nation’s experiment with constitutional democracy. And it strikes the final blow in his struggle to save the rule of law from activist judges. His last written words, fittingly, were these:
It bears endless repeating that we are now being ruled in some of our most crucial cultural and moral issues by judges who have acquired the power, but certainly not the authority, to take these decisions out of our hands. . . . They continue their attack on the basic structure of the law by filling the categories of law with politics. Originalism provides hope that the constitutional structure of our country will be maintained.
Now, with Bork gone, that hope is a bit dimmer.
– Mr. Cooper, who served in the Justice Department during the Reagan administration, is chairman of the law firm Cooper & Kirk.