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Archibald Cox: Conscience of a Nation

By Ken Gormley

Archibald Cox.gifArchibald Cox is a biography of a gifted lawyer who retained his principles in Washington, D.C.

585 pages
Addison Wesley (1997)

Reviewed by: Stephen F. Rohde

Among the most grim events that have collectively come to be known as Watergate, the Saturday Night Massacre on October 20, 1973, will be remembered as the beginning of the end of the presidency of Richard M. Nixon. When Special Prosecutor Archibald Cox issued a subpoena seeking nine Oval Office tape recordings, Nixon became so outraged that Cox was exercising the independence Nixon had so publicly guaranteed him that Nixon ordered Attorney General Elliot Richardson to fire Cox. Unwilling to violate the terms under which he had appointed Cox, Richardson resigned rather than comply. After Assistant Attorney General William Ruckelshaus likewise resigned, Solicitor General Robert Bork fired Cox.

Nixon's crass exercise of naked power was in stark contrast to the honorable display of integrity exhibited by Cox at a nationally televised press conference held earlier that day. Addressing the American people for almost an hour, Cox explained that he was not "out to get the president of the United States" but "had to try to stick by what I thought was right."; Given the oath he had taken before the Senate, Cox declared that he could not accept the president' ultimatum to forego his attempt by judicial process to obtain tapes, notes, or memoranda of presidential conversations.

The public reaction to Cox's press conference revealed widespread confidence in Cox's integrity. One writer described him as a "immy Stewart-like character." Upon learning that he had been fired, Cox issued his last statement as a special prosecutor: "Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people" to decide.

But who was Archibald Cox? What had equipped him for this pivotal moment in American history? In a satisfying and revealing biography titled Archibald Cox: Conscience of a Nation, Ken Gormley paints a colorful portrait of Cox's public and private lives. Conducting more than 140 interviews with such key figures as Cox, Richardson, Ruckelshaus, Bork, John Dean, Gerald Ford, Edward Kennedy, John Kenneth Galbraith, Theodore Sorensen, Ramsey Clark, Warren Christopher, and four Supreme Court justices, and using scores of public and private sources, Gormley traces the important events in Cox's life with charming, telling, and revealing anecdotes and candid observations.

Cox was born in 1912 in Plainfield, New Jersey, the son of a successful copyright and trademark lawyer. Remembering that there was "never a day when I wasn't going to be a lawyer," Cox believed that the history of the legal profession was made up of "great cases and great lawyers in great circumstances." Thus, as if preordained, Cox graduated from Harvard College and entered Harvard Law School in 1934. He surprised everyone by achieving the highest grade point in the first-year class of 593 students. Dean Roscoe Pound observed that Cox "was capable of splitting a hair into many more parts than anyone else."

Upon graduation from Harvard Law School, Cox made two critical decisions: he married Phyllis Ames (whose grandfathers were both highly prominent in legal education), and he accepted a clerkship with U.S. Circuit Court Judge Learned Hand instead of taking a job with a Boston law firm.

Gormley describes with ease and admiration the lifelong romantic relationship between Phyllis and Archie as they raised their family and met the demands of his increasingly public career. Phyllis emerges as a strong and supportive force in Cox's life, attending to home and hearth as her husband built a successful public and private career.

The other inspiring figure in Cox's life, Judge Hand, was a guiding force until Hand's death in 1961. Gormley presents an engaging portrait of Hand and his lasting influence on his young clerk. Sitting in his chambers, Hand taught Cox that judges, and by extension lawyers, were responsible "to those books about us" –to the law itself.

Once in private practice in 1938, Cox began to specialize in labor law, but three years later he followed a senior partner to serve on the National Defense Mediation Board and then on to the solicitor general's office at the U.S. Justice Department. In 1942, the 30-year-old Cox presented his first oral argument before the U.S. Supreme Court. It proved to be an inauspicious appearance for one who would return 66 times. Cox's task was simply to "confess error" in a case that the government had improvidently won in the lower court. With Phyllis watching from the gallery, Cox opened his mouth only a moment before all the justices jumped down his throat. In a stunning defeat (or ironic victory) the Supreme Court cast aside Cox's confession of error and upheld the original decision in the government's favor.

Cox later served as associate solicitor in the Labor Department. Then, after an interlude of only four or five weeks in private practice, he accepted a teaching position at Harvard Law School, where he served, with several memorable interruptions, for almost 40 years. Cox taught labor law and authored the first modern textbook in that field. In 1946, at the age of 34, Cox was one of the youngest professors to receive tenure. In 1952, he was appointed by President Harry Truman as chairman of the new Wage Stabilization Board. When the United Mine Workers defied Congress's wage limit, Cox warned them that "freedom–their freedom–cannot long survive when the supremacy of law is challenged by naked power." Cox had no way of knowing that 21 years later his courageous devotion to this principle would bring down a president. But in 1952, it was President Truman who prevailed. Under pressure from the UMW, Truman overruled Cox's decision and granted the union the wage increase it demanded. Cox resigned.

He returned to Harvard Law School and began serving regularly as a labor arbitrator, while also generating a prodigious number of law review articles (averaging three each year during the 1950s), but he received only lukewarm evaluations from his students, who described him as "patrician,""a Boston Brahmin, a stiff fellow," and even "arrogant" and "insufferable."

In 1953, Cox began an association with John F. Kennedy. Gormley presents an intriguing account of Cox's inauguration into hardball politics. By 1957, Cox had become a key adviser to Kennedy on labor issues. His intelligence impressed Cox. When the two of them flew back to Boston, Cox recalled that the "politician was reading Proust and the professor was reading Perry Mason."

In 1960, when Kennedy launched his bid for the presidency, he asked Cox to serve as the head of his academic advisory group. Believing that occasional excursions into public affairs were part of the privilege of the legal profession, Cox accepted. Gormley skillfully tells the story of Cox's dedicated service and his serious and unexpected clashes with Sorensen, Kennedy's key aide. Cox wrote to a close friend at Harvard that "political campaigns are so inconsistent with all our professional training that it will be a personal satisfaction to rejoin you all in November."

Kennedy's respect for Cox remained high, and in December 1960 he appointed Cox as solicitor general, a position Cox had revered as the "conscience of the government." Gormley justly devotes considerable attention to Cox's outstanding service in this high office and his vital role in the development of civil rights law. Gormley re-creates the ideological and strategic battles between Cox and Attorney General Robert Kennedy, whom Cox at first considered an utter disappointment but whom he grew to love and admire as "a great attorney general."

Although Cox was immensely respected as solicitor general, Gormley reports that some of his colleagues and certain Supreme Court clerks found him arrogant–that he occasionally lectured the justices and conveyed the impression that he was "really looking down his nose at them." By 1963, however, Cox appeared poised for elevation to a seat on the Supreme Court. Indeed, Arthur Schlesinger and Chief Justice Earl Warren had discussed the matter directly with the president and both reported that Cox would have been appointed had Kennedy lived.

Once President Johnson began his own full term in 1965, Cox submitted his resignation as solicitor general and returned to Harvard, having prevailed in more than 80 percent of the cases he argued before the Supreme Court. The Washington Post wrote that "Cox filled the office with extraordinary devotion, learning, effectiveness and style. Even in comparison with a succession of most able predecessors, his performance must be rated as genuinely brilliant."Robert Kennedy called him "a wise and trusted counselor, and a steadfast friend."

By far the longest and most well-researched portion of the book encompasses Cox's service as Watergate special prosecutor. Gormley offers several surprises in this oft-told tale and presents an illuminating account of the role Cox played "as a thoughtful, considerate and skilled prosecutor." Among a wide range of interesting revelations is the special relationship between Cox and Elliot Richardson, a former student of Cox, who had also clerked for Judge Learned Hand. The mutual respect felt by these men proved to be vital when the full weight of the presidency came down on them.

Cox's life serves as a model for a public interest lawyer. Eschewing the wealth he surely would have accumulated in private practice, Cox responded to the call for public service. Few lawyers will devote as much of their careers to the greater good as Cox did. His story reveals the personal satisfaction that such service brings, and it challenges all lawyers to contribute some of their time and talents to the interests of society as a whole.

Gormley broadens our knowledge of Cox beyond his famous role in Watergate. He emerges as a complex public figure, a lawyer who took his ethics seriously and who was a loving father and husband. One feels a tinge of sadness that one is not reading the biography of a Supreme Court justice. Cox has said he has no regrets, but for the sake of the law in "those books about us," the rest of us indeed may.

Stephen F. Rohde is a partner with Rohde & Victoroff who specializes in constitutional law.