Come Hell or High Water: Robert Bork’s ‘Saving Justice’
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Published: 11-Apr-2013

OKLAHOMA CITY-  Robert Bork’s rich and consequential life will one day require the skill and erudition of a David McCullough, in a tome of several hundred pages.

A good place for future researchers to start will be Bork’s new book, which stands as both autobiography and compelling history. Much of it focuses on the Watergate imbroglio’s “Saturday Night Massacre -- what Bork often called "the events of October 20, 1973." 

In "Saving Justice: Watergate, the Saturday Night Massacre, and other Adventures of a Solicitor General," the late Robert H. Bork reviews his tenure as Solicitor General, America’s top legal advocate, including his unanticipated tenure as acting attorney general.

The Solicitor performs an essential role in development of national law, as the president’s and the Justice Department’s advocate before the U.S. Supreme Court. As such, a solicitor not only manages traffic flow for cases that the government wants the High Court to consider, but replies to requests for the people’s perspective on all manner of cases and controversies. 

The solicitor’s job drew Bork to Washington, D.C., where he would argue for the government’s position in cases on the president’s war-making powers, the death penalty and vital political speech controversies. Many justices considered Bork the finest legal advocate of his day.

As much as he relished rhetorical combat before the Court, Bork excelled as a professor at Yale Law School, where he taught before and after his stint as Solicitor. 

His implementation of President Richard Nixon’s order to fire Watergate special prosecutor Archibald Cox -- after the resignation of Attorney General Elliott Richardson and his Deputy, William Ruckelshaus -- bore consequences that followed Bork through the rest of his career, including in his 1987 nomination to the Supreme Court.

Richardson and Ruckelshaus felt bound to resign rather than implement Nixon’s directive. They considered the order constitutionally valid, but had pledged to protect Cox under the investigatory mandate given in the Watergate case.

On the other hand, the line of succession at the Justice Department was short, and Bork was third in line. That meant he would become acting attorney general – either joining them in resignation or carrying out Nixon’s order.

Both men asked Bork, initially inclined to implement the order and then resign himself, to stay, come hell or high water. He stayed, keeping the agency functioning as Watergate consumed the nation’s capital and, not incidentally, extending the line of succession six deeper among the assistant attorneys general. 

The book is elegantly written, a powerful defense of his actions and an indispensable addition to the literature surrounding a political and moral crisis triggered by Nixon’s overreach and the relentless passion of his enemies. 

Even as the Cox firing consumed much of the national press corps and Nixon’s foes, work at the Justice Department continued. Bork affectionately narrates the cauldron within which he forged a friendship with Henry Petersen, head of the Criminal Division, who became his de facto deputy. 

The book has unexpected and intriguing nuggets, as when Bork sketches Nixon’s grasp of prosecutorial nuances in a discussion held before the indictment of Vice President Spiro Agnew on bribery charges. 

Bork’s storied friendship with Alexander Bickel is tenderly rendered. Understatedly, Bork describes their consultation about tensions over Agnew – as he considered Alexander Haig’s unexpected offer to become Nixon’s defense lawyer (a job he rejected). 

The efficient narrative – at 123 pages, a model of brevity -- gives a sense of mood as he walked with Bickel along a dark, rural road in Virginia: “It’s an indication of the paranoia of the time that I really wanted to be someplace where it was impossible to be overheard.”

Another time, he and Richardson step into a White House men’s room to have a brief discussion. Before they begin, Richardson turns on the water faucets, just in case the bathroom is “bugged.” 

Bork gives balanced character sketches of those with whom he worked during the tumultuous final months of the Nixon presidency. His assessments of Richardson, Cox, Nixon and others in the drama are generous.

Bork is the soul of both restraint and wit in characterizing a press conference Cox held shortly before the tumult of the massacre: 

"Cox gave an impressive performance, replete with the long-standing ritual in which the person giving the conference recites how he lay awake at night asking himself if he was doing the right thing or whether he was getting a bit above himself. Cox concluded he was in fact doing the right thing, just as every other person giving such a conference does.” 

Bork was a man of passion, an intellectual who became best known for his combative defense of principled jurisprudence. His friend Ray Randolph, in a memorial service this week, sketched Bork’s life and the model he left a generation of law clerks, students and friends, calling him “a man’s man.”  

He was that and more, a principled “player” who kept his head in the midst of strife, in the process of saving Justice. 


NOTE: McGuigan is the co-author of “Ninth Justice: The Fight for Bork.” (Free Congress/University Press of America, 1990). You may contact McGuigan, Oklahoma City bureau chief for Watchdog.org,  Patrick@capitolbeatok.com and follow us on Twitter: @capitolbeatok.

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