I was a friend of Bob Bork's for many years. I worked with him, under Attorney General Edward Levi, in Gerald Ford's Justice Department, where he was Solicitor General and I was Assistant Attorney General for the Office of Legal Counsel. Our other colleagues included Carla Hills and, later, Rex Lee as heads of the Civil Division, Richard Thornburgh as head of the Criminal Division, and Stanley Pottinger as head of the Civil Rights Division--a distinguished group, but none more distinguished than Bork. Later, I worked with Bob as a colleague on the United States Court of Appeals for the District of Columbia Circuit, where I very much liked the high diet of administrative law cases, and he not so much (I always thought he should have accepted the Administration's earlier offer to nominate him for the Second Circuit, where his interests in antitrust and business law would have had fuller play).
Robert Bork was a rare combination of integrity and intellectual brilliance. And it was both of those qualities that led to the regrettable rejection of his nomination to the Supreme Court. His integrity caused him, as the ranking officer at the Department of Justice after the resignations of the Attorney General and Deputy Attorney General, to execute President Nixon's directive to fire Archibald Cox. As he explained it, the President had the lawful authority to fire Cox (who had no independent status protected by law, as later Independent Counsels had); and while it was appropriate for some of the President's appointees to register their disagreement with that action by resigning, it was not appropriate, or, indeed, compatible with the Constitution, for all presidential appointees to denude the Justice Department of leadership, thereby frustrating lawful presidential action. I never knew Bob to be a man who deeply admired Richard Nixon, but he became The Man Who Fired Archibald Cox.
As for intellectual brilliance, Robert Bork's scholarship led the rationalization of antitrust law that has endured until today. And more importantly, he was the intellectual point-man for the movement to curb the pretentions of the Warren Court and return the meaning of the Constitution to what it said. All discussions of "original intent" relied heavily upon his fertile and often combative scholarship. He became more than a leader of change; he became, for the opposition, the very symbol of change. His views were not, to tell the truth, much different from my own, but when his nomination to the Supreme Court came up, that symbol ("Robert Bork's America") had to be rejected. History will treat Robert Bork more kindly than Congress has. Those of us who were his friends or intellectual allies are grateful that he was with us.
ANTONIN SCALIA, Associate Justice, United States Supreme Court, 1986--present; Judge, United States Court of Appeals for the District of Columbia Circuit, 1982-86.
Judge Robert H. Bork was, like St. Thomas More, a man for all seasons. His brilliance, wit, charm, and sense of humor helped him to revolutionize constitutional law. Judge Bork was the first and, for a time the only, academic to challenge the judicial activism of the Warren and Burger Courts. Two years before the decision in Roe v. Wade, (1) Judge Bork wrote a seminal law review article entitled Neutral Principles and Some First Amendment Problems, (2) which laid the intellectual groundwork for the originalism of Justices Antonin Scalia and Clarence Thomas. Judge Bork's criticisms of judicial activism were withering and effective. He transformed constitutional law just as earlier in his career he had transformed antitrust law, which he infused with the idea of promoting consumer welfare. Judge Bork was the rare academic whose work caught on, was read, and had a huge impact on the real world. He wrote and spoke eloquently, elegantly, wittily, and from the heart.
Judge Bork was a man of action as well as a man of ideas. He was thus a kind of platonic philosopher king--a label he would have vigorously resisted. Judge Bork was both an intellectual and a statesman. He began his service as Solicitor General of the United States under Presidents Nixon and Ford--a position from which he argued the government's cases before the Supreme Court. As Solicitor General, Judge Bork played a key role in persuading the Supreme Court to reinstitute the death penalty in Gregg v. Georgia. (3) Judge Bork became Acting Attorney General of the United States in 1973 after the Saturday night massacre--a key moment in the unfolding of the Watergate scandal. His integrity helped to hold the Justice Department together in one of its most trying moments.
In September and early October of 1973, Judge Bork played a central role in forcing Vice President Spiro Agnew to resign from office. These events are recounted with great wit and verve in Judge Bork's memoir about his service as Solicitor General, Saving Justice: Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General, published posthumously in 2013. (4) Solicitor General Bork insisted in September and early October of 1973 that Vice President Agnew be indicted for taking bribes, and he refuted Agnew's legal argument that a sitting Vice President could not be indicted. The end result was Agnew's resignation and plea of nolo contendere, and Gerald R. Ford's appointment to be President Nixon's new Vice President. This event was of critical importance to the outcome of the Watergate scandal because it eliminated Vice President Agnew as President Nixon's impeachment insurance. Since the only person Nixon's enemies hated more than Nixon was Agnew, it was vital to get Agnew out of the Vice Presidency before removing Nixon himself.
On October 20, 1973, ten days after the Agnew resignation and in the midst of the war between Israel on the one hand and Egypt and Syria on the other, Bork played the starring role in a chain of events, which came to be known as the Saturday Night Massacre. The then--Attorney General, Elliot Richardson had promised to appoint a special prosecutor to investigate the growing Watergated scandal as a condition of his Senate confirmation to be Attorney General. Richardson foolishly picked Archibald Cox, a former Kennedy Administration official who was very close to Senator Ted Kennedy to conduct what should have been an impartial and apolitical criminal investigation.
In July of 1973, it became known that Nixon had tape recorded all conversations and meetings held in the Oval Office, and Special Prosecutor Cox demanded to see all the tapes. Nixon refused, and when Cox insisted on seeing them, Nixon ordered Attorney General Richardson to fire Cox. Richardson resigned rather then carrying out this order because he felt Nixon was ordering him to violate the pledge he had made at his Senate confirmation hearings. Nixon then asked Deputy Attorney General William Ruckelshaus to fire Cox, and when Ruckelshaus refused, Nixon fired him. Solicitor General Bork, who was third in line in the Justice Department hierarchy, then became Acting Attorney General. Richardson and Ruckelshaus urged Bork to fire Cox and not resign so that the integrity of the Justice Department could be preserved. Richardson, Ruckelshaus, and Bork all feared at the time that if Bork were to resign, the White House might appointed a legal hack like White House staffer Fred Buzhardt to be Acting Attorney General, and Buzhardt might have ended the whole Watergate investigation.
Bork became Acting Attorney General on October 10, 1973. He fired Cox, asked all of Cox's staff to stay on and finish their jobs, and then hired Leon Jaworski, a former American Bar Association President who had prosecuted some Nazi war criminals, to complete the Watergate investigation after Cox's firing in a professional and nonpartisan way. Leon Jaworski's criminal investigation pursued the Nixon Tapes, and ultimately the Supreme Court ordered that the tapes be produced on July 24, 1974. (5) It immediately became public that the tapes revealed that Nixon was guilty of the crime of obstruction of justice. Facing certain impeachment and removal from office, Richard Nixon became the first and only President in American history ever to be forced to resign from office and to accept a pardon for his crimes. Judge Bork thus played an absolutely critical role in the complicated series of events that led to Gerald R. Ford becoming President after Richard M. Nixon in August of 1974.
Political leftists vilified Judge Bork during this period and, indeed for the rest of his career, for firing Archibald Cox, as Nixon had ordered, but Bork's critics overlook the central role he played in forcing Vice President Agnew to resign, in keeping Cox's staff from quitting, and in seeing Cox's investigation through to a successful culmination under Leon Jaworski. The fact of the matter is that it was Robert Bork who saved the Justice Department from a grave threat to the rule of law in 1973, and no-one has ever given him the credit he deserves for this!
President Ronald Reagan appointed Bork to the United States Court of Appeals for the District of Columbia Circuit near the beginning of his administration on February 9, 1982. Judge Bork was the leading and most famous of a number of law professors whom President Reagan appointed to the federal appellate courts including Antonin Scalia, Richard Posner, Ralph Winter, Frank Easterbrook, J. Harvie Wilkinson III, Stephen Williams, Douglas Ginsburg, and Pasco Bowman. Bork stood out among all these legal giants, and he was widely rumored to be a leading candidate for an appointment to the Supreme Court.
Ironically, when Bork first met Nixon the morning after the Saturday Night Massacre, the first words out of Nixon's mouth were something to the effect of "you will get the next seat that comes up on the Supreme Court." Bork explains in his memoir that he did not have the heart to tell Nixon that after the Saturday Night...