RUTHFULLY YOURS

Even among the most elite lawyers, to be named Solicitor General of the United States—the attorney responsible for representing the American people before the Supreme Court—would be a career’s pinnacle. So would be performing the duties of U.S. Attorney General, often described as the nation’s top law enforcement official and, historically, the president’s principal legal advisor. To play a leading role in cases of unprecedented significance—the criminal investigation of a president, the indictment of a vice president, the meddling of the federal courts in a hot war—would place a lawyer on the same airy par.

Now imagine a lawyer enmeshed in each of these critical roles, over a period of mere weeks, in a nation rupturing over the political and cultural upheaval of the early 1970s.

Actually, no need to imagine it. Robert H. Bork not only lived these interesting times but, in his last great service to the nation, also produced a memoir of historical significance to explain them. Saving Justice: Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General was posthumously published by Encounter Books shortly after Judge Bork died on December 19, 2012.

In 1968, when he first came to the attention of Richard M. Nixon, Bork was already a prominent member of the profession—a Yale law professor who had enjoyed a successful tenure in private practice and was in the midst of writing The Antitrust Paradox, which eventually became the gold standard in that complex field. At the urging of his fellow Yale academic the late Alexander Bickel, a close friend who appeared again and again as Bork’s confidant throughout the tumult of 1973, Bork argued in favor of Nixon’s candidacy in a series published by The New Republic. Not that he was particularly enamored of the former vice-president, whom he did not know, but, as Bork sardonically observes, he was no doubt “the only Ivy League professor . . . without a deep-seated moral abhorrence to” Nixon.

Well into President Nixon’s first term, Bork again impressed him when asked to strategize over a bill to limit school busing. Despite Nixon’s infamous distaste for Ivy League pedigree (and for the University of Chicago, Bork’s alma mater which, the president chided, was “almost as bad”), Bork was clearly on the administration’s radar screen of lawyers with suitable credentials for elevation to the Supreme Court.

In December 1972, Nixon asked Bork to become Solicitor General, the third-highest ranking position in the Justice Department and a customary stepping-stone toward the federal bench. The president had just been re-elected but already the storm clouds were gathering. Six months earlier, five men had been arrested while attempting to bug Democratic National Committee offices at the Watergate complex in Washington, igniting the scandal that eventually consumed Nixon’s presidency. It is thus with biting irony that Bork recalls being asked, prior to the Solicitor General nomination, “whether I had any skeletons in my closet.” The question was posed by the White House Counsel John Dean, dubbed by the FBI as a “master manipulator of the Watergate cover-up”—a man whose own closet was “overflowing” with skeletons.

Watergate was already ripping its way through the administration in late June 1973 when Bork was sworn in. Top Nixon aides Bob Haldeman and John Erlichman had been asked to resign. And soon after Richard Kleindienst succeeded the scandal-plagued attorney general John Mitchell, he, too, was cashiered (after declining to release the burglars), making way for Elliot Richardson.

The Richardson nomination had been held up by Senate Democrats to coerce the administration into appointing a special prosecutor. Disastrously, Richardson acceded to these demands by naming his former law partner, Archibald Cox—a protégé of Senator Ted Kennedy, Nixon’s principal nemesis, increasing the embattled president’s paranoia. On a separate yet inextricably knotted track, a bribery scandal hovered over Vice President Spiro Agnew, mainly involving his serial corruptions as governor of Maryland.

Nevertheless, Bork was exhilarated by the duties of his office, into which he provides an unusual window. It is a staggeringly heavy and critical workload. With a small staff—by Washington standards—the Solicitor General not only argues major cases before the Supreme Court but also determines which appeals the government will pursue in the lower appellate courts, in addition to providing guidance on complicated legal questions that arise constantly in governance.

An especially peculiar and ominous controversy erupted shortly into Bork’s tenure when the irascible Supreme Court Justice William O. Douglas sided with antiwar activists in imperiously ordering the armed forces to halt military operations in Cambodia. North Vietnamese troops were using Cambodia as a safe-haven for cross-border attacks on U.S. troops. Bork managed to persuade Justice Thurgood Marshall, supported by the remaining seven justices, to reinstate a lower court stay, effectively reversing this nakedly political act of judicial overreach. Bork was still at the helm to right that ship only because he had wisely side-stepped a White House request that he resign his post in order to become Nixon’s chief defense counsel.

Like the rest of the nation, Bork had been startled by White House aide Alexander Butterfield’s revelation, in senate testimony, that a secret taping system was employed in the Oval Office. It became obvious that the tapes would become the crux of the investigation and that Nixon would need to beef up his own legal representation. As Cox bored in, Bork was even more stunned when Nixon’s chief of staff, Alexander Haig, pressed him to represent the president.

After consulting deep into the night with Bickel and, later, Richardson, Bork persuaded Haig that he was the wrong man for the job by explaining that he would need to hear the tapes in order to defend Nixon competently. This was a demand the White House did not abide; Haig explained that Nixon felt so strongly about executive privilege that he would torch the tapes and resign before turning them over to Cox. Bork, too, was left to wonder, “Why doesn’t he burn them now?”—a question he did not dare voice for fear that he’d become the scapegoat.

Years later of course, when President Reagan nominated him to the Supreme Court, senate Democrats demagogued Bork’s performance in the Nixon Justice Department—a shameful episode that the Reagan Administration’s Attorney General Ed Meese recalls in a moving forward to Saving Justice. It thus contributes mightily to the historic record to have Bork’s account. In truth, his performance was patriotic, an exemplary service to the rule of law in the Justice Department’s best tradition.

Bork was adamant in contending that Agnew both could and must be prosecuted for kick-back schemes that continued into his term as vice-president. Though the damage to an already hemorrhaging presidency was palpable, Bork persuaded Nixon that Agnew had to be indicted—a decision that engineered Agnew’s resignation and Gerald Ford’s elevation to the vice-presidency, a development that only increased the likelihood of Nixon’s impeachment.

Bork, moreover, preserved the Watergate investigation. In the “Saturday Night Massacre” of October 20, 1973, Nixon directed that Cox—who doggedly, publicly demanded surrender of the tapes—be fired. Richardson and his deputy attorney general, William Ruckelshaus, both refused, reasoning that doing so would betray their confirmation-hearing commitment not to terminate Cox in the absence of “extraordinary improprieties.” When they resigned rather than carry out the order, it fell to Bork, the third and last Justice Department official in succession.

Cox was a subordinate executive official who was publicly insubordinate, giving Nixon both the power and just cause to fire him. Bork understood this and, more importantly, recognized that a similar demurral and resignation on his part would prompt mass resignations in the Justice Department’s senior ranks, leaving the Department in the hands of a White House puppet and the Watergate investigation in disarray. At the urging of Richardson and Ruckelhaus, he executed the order to fire Cox. He refused, however, to become attorney general—taking on the responsibilities of the office but refusing even the appearance of profiting personally from the turmoil. He then proceeded to engineer the appointment of Leon Jaworski—a scion of the bar and former war crimes prosecutor whose independence could not be questioned—to replace Cox, ensuring the integrity of the investigation.

In the end, of course, Nixon yielded to the Supreme Court’s direction that he surrender the tapes, whose damning contents and doctoring (the infamous eighteen-minute gap) propelled his resignation the next year. Bork, meanwhile, assured that the Justice Department’s essential work would continue without interruption until the administration could persuade the Senate to install one of their own, William Saxbe, as Attorney General, finally freeing Bork to return fulltime to the duties of Solicitor General.

Saving Justice is a fascinating read, all the more so because Judge Bork labored diligently to complete it despite the poor health that plagued his final months. Like the other luminous books he authored after the nation was wrongfully denied his service as a Supreme Court justice, this one will have an influence that endures.