Recalling Archibald Cox, an Island of Integrity in a Swirling Sea of Partisanship

 Fifty years ago, if you saw a pickup truck in Harvard Law School’s parking lot, it belonged to Archie. Professor Archibald Cox, who loved his farm and his horses.

Archie was a Yankee, and born to law. His father was a noted lawyer. His great-grandfather, William Evarts, had prosecuted Jefferson Davis and defended Andrew Johnson against impeachment. Archie was a diligent and brilliant lawyer; but what makes any of this worth telling was his quiet, stubborn commitment to do right.

He fell into politics when fellow New Englander Jack Kennedy drafted him to organize professors to provide campaign ideas. In 1961, Kennedy appointed Cox Solicitor General. He argued the government’s Supreme Court cases, including “one person, one vote” and major civil rights cases.

In 1973, Richard Nixon appointed Cox - a symbol of rectitude - Special Prosecutor to investigate the Watergate mess.

I met Archie in 1978. We were friendly, though not close. Two memories: in class he suffered fools with such grace that if he called on you, and you were unprepared or hungover, and tried your best to respond meaningfully, he not only listened but might, weeks later, suddenly ask, “Mr. Goodman, regarding your point about Smith v. U.S., . . .” and offer a new insight. Also, he always kept the hour before a class free for preparation. He was Mr. Constitutional Law, but so diligent (and humble) he still prepared carefully.

A friend and classmate, Ken Gormley, knew Archie well, and later wrote a splendid biography, which I recommend. Reading it made me long for a time when more folks put principle before partisanship. In one scene, a just-retired Supreme Court Justice tells Cox that, in one recent case, he’d written an opinion deciding one way, then one deciding the other, and ultimately stayed up all night trying to get it right.

When Watergate testimony suddenly revealed that a White House taping system recorded Nixon’s Oval Office conversations for posterity, Archie demanded to hear pertinent tapes. Nixon ordered him to stop seeking the tapes. Though Archie respected the Presidency, he didn’t give up. Nixon intended Cox to resign.

Instead, Archie gave a live Saturday news conference at the National Press Club explaining why he disobeyed Nixon. Archie, his wife, and a friend walked there from the office. It was aired live by two networks, and during halftime of ABC’s football game. Archie, lacking institutional support, wondered if one man could successfully take on the President; but he did his best.

That press conference sparked the “Saturday Night Massacre,” in which Nixon ordered Attorney-General Elliott Richardson to fire Archie. Richardson, a Republican, but another Yankee with a powerful conscience, resigned. Nixon ordered Richardson’s deputy to fire Archie. He too resigned. Finally Solicitor General Robert Bork fired Cox.

Archie awakened a country. Judge John Sirica eventually ordered Nixon to produce the tapes. Nixon appealed, but the Supreme Court ruled against him, unanimously. Exit King Richard.

My favorite moment is when, as they’re walking back across Washington after that press conference, Archie suddenly wants a beer. His friend finds some in a store, but can’t get anyone’s attention. They’re all in the back, watching TV. “Come back later, man, we’re watching history here!” He realizes they’re watching Archie, and he tells them he’s right outside. They refuse money for the beer, and rush out to shake Archie’s hand.

Thanks, Archie, for setting us all a superb example.

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[The above column appeared this morning, Sunday, 18 April 2021, in the Las Cruces Sun-News, as well as on the newspaper's website on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and will shortly be available on demand on KRWG’s site.]

[The referenced book is Archibald Cox: Conscience of a Nation, by Ken Gormley. A friend who is reading John Dean’s book on Watergate says Dean discusses conversations about Cox, with Nixon and his pals underestimating Archie and Nixon figuring Richardson will keep Archie under control – and Haldeman wondering whether they could trust Richardson. Most of official Washington underestimated Cox. They thought he was “too soft – not nasty enough.” Wikipedia’s entry on Cox notes that “James Doyle, a Washington Star reporter who would later become the chief press advisor for Cox's group, described his own first reaction to meeting Cox: ‘Prosecutors are supposed to have the instincts of a shark; this one seemed more like a dolphin.’"

According to Lewis (the Times reporter who knew Cox well and also taught some courses at HLS), Cox said when he took the job, “I think sometimes it is effective not to be nasty, in a nasty world – although it may take a little while for people to realize that.” Lewis commented: 

If Cox and his staff had not been so able and dogged, they easily could have fallen in a dozen procedural holes along the way in the tapes case. …But plainly there was more to that Saturday night and its aftermath. It all depended on public attitudes—and they in turn depended on the public's reading of one man's character. I am convinced myself that the character of Archibald Cox was essential to the result. Nixon and his men never understood it; they assumed that Cox must be a conspirator, like them, when he was so straight as to approach naivete.   ]

[I should note that although I omitted this because of the limited space in a newspaper column, Kennedy’s campaign wasn’t Cox’s first brush with politics, as he had served as head of the Wage Stabilization Board initiated by Harry Truman in 1952.

Looking on-line for a photo of Cox with horses, I learned that his grandson, Archibald Cox III, is a noted horse trainer.

Finally, I just read the NYT obit, which, after lengthy discussion of his accomplishments, adds:

As a law professor Mr. Cox seemed to make a studied attempt to run his life with courtly, Yankee good humor. His crew-cut hair, button-down shirts and skinny bow ties were personal trademarks, as was his fondness for driving to work in a pickup truck from his farm in Wayland, Mass. He also had a summer home in Maine.

A gaunt 6-footer who wore three-piece suits, Mr. Cox was often described as ''ramrod straight,'' not only because of his bearing but also because of his personality.

In the classroom he had his detractors. He was invariably admired for his scholarship, but his lectures in labor, Constitutional and administrative law were at times criticized as ''soporific'' and ''dry.''

''There's no question that he's in complete command of his subject,'' one student wrote in a critique. ''But he's not a performer in the classroom. There's no sparkle at all.''

Well, yeah. I like the two paragraphs on his manner and personality; and the two on his classroom manner are thoroughly accurate. ]