May 31, 2004

Judging Bork

by PG

The death of Watergate special prosecutor Archibald Cox occasions a post from Kieran Healy on how Weberian theory of authority and bureaucracy is illustrated in the drama of the Saturday Night Massacre.

On October 22, 1973, Nixon demanded that Attorney General Elliott Richardson fire Cox (Nixon himself did not have the authority to discharge a special prosecutor, as that office is appointed by Congress and overseen by the Justice Department). Richardson refused, as did his deputy William Ruckelshaus. Both were fired/ forced to resign by Nixon.

Next in the line of succession was Solicitor General Robert H. Bork. Bork fired Cox, and the office of independent prosecutor was abolished, with its functions turned over to the executive-controlled DOJ.

I'm fairly sure that I learned about all this in high school government class, where I was taught by a libertarian-leaning Reagan fan. This teacher's rationale for Bork's action was that someone had to do it -- that, had Bork also refused to get rid of Cox, Nixon was ready to keep on firing people down the chain of command at Justice until Cox was gone.

In this view, little was to be gained by Bork's following Richardson's and Ruckelshaus's example. Their exits from the Administration already demonstrated that Nixon was a loon, had that not been sufficiently clear heretofore. As Cox said, "Whether ours shall be a government of laws and not of men is now for Congress"; with Nixon running roughshod over his own DOJ, Congress would have to be the one to stop the madness.

Healy seems to have a less charitable perception of Bork. He implies by his contrast of Bork with Richardson that the former lacked the "great personal integrity" of the latter, and that Bork thought Nixon had the authority to block an investigation of himself. Richardson, in Healy's description, typifies someone who believes in legal-rational authority (government of laws); Bork someone who believes in traditional authority (government of men).

Though I have no fondness for Bork, I do think that my government teacher's defense of Bork's choice has some merit. There simply wasn't any way that a member of the executive branch who was under Nixon's command could carry out the Watergate investigation. The appointment of an indepedent prosecutor whom Nixon couldn't fire directly was an attempt to get around this problem, but it ultimately was futile. The other two branches of government -- the Supreme Court in its ruling that Nixon had to turn over the tapes, and Congress in its hearings -- had to be the ones to take down the Chief Executive.

May 31, 2004 09:08 AM | TrackBack

Perhaps one of the things that convinced Bork not to follow his predecessors was that it wouldn't hurt his career to go along with Nixon. It did lead to a judgeship on a Circuit Court. If he had taken the principled route, would he have been considered for that appointment or his nomination to the Supreme Court later on? But his decision obviously did hurt when the Senate considered the latter nomination. He may consider his action backing Nixon as a badge of honor. But some of us consider it a scarlet letter as we shudder to think how much worse the SCROTUS would be with him as a member.

Posted by: Shag from Brookline at May 31, 2004 05:19 PM

You're right of course that _someone_ had to do it. Richardson himself said this, adding that Nixon couldn't just keep on firing people until some Deputy Assistant AG did the job. But it was striking that, in his retrospective self-defense, Bork didn't take this pragmatic point as a sufficient reason. Instead he adds that the President can't be faced down in public by a subordinate. That kind of deference to authority qua authority is the essence of traditional legitimacy.

Posted by: Kieran Healy at May 31, 2004 05:34 PM
Sitting in Review
Armen (e-mail) #
PG (e-mail) #
Craig Konnoth (e-mail) #
About Us
Senior Status