Archibald "Archie" Cox Jr. (May 17, 1912 – May 29, 2004) was an American lawyer, legal scholar and professor, whose career alternated between academia and government. As a Harvard Law School faculty member, he became one of the early experts in federal labor law. In 1948 he published the first case book on labor law for use in law schools, a book that was periodically updated and supplemented until 2011. A prolific writer, he published dozens of articles on developments in labor relations. Even while teaching full-time, he became a noted labor arbitrator and wage stabilizer, in the latter role facing off against the United Mine Workers in an industrial dispute that touched on national security issues during the Korean War.
He became Senator John F. Kennedy's labor advisor in connection with the senator's single major legislative project, a bill that would become the Landrum–Griffin amendments, and as a result of that role became head of Kennedy's presidential campaign's brain trust, recruiting intellectuals and coordinating policy research and speech-writing for the campaign. In 1961 President Kennedy appointed him solicitor general, an office he held for four and a half years during which time he briefed and argued some of the most consequential decisions of the Warren Court. On return to Harvard he expanded on his experience in government to write on and teach constitutional law. As a high-profile liberal, he was chosen to head a blue ribbon commission that investigated the student strikes that closed down Columbia University in the Spring of 1968. After that experience, he became Harvard's point man dealing with student disorders at Harvard for the next three years.
Cox became internationally famous when under mounting pressure and charges of corruption against persons closely associated with Richard Nixon, Attorney General nominee Elliot Richardson was forced to appoint him (on account of his reputation for integrity and his independence from the president) as Special Prosecutor to oversee the federal criminal investigation into the Watergate burglary and other related crimes, corrupt activities and wrongdoings that became popularly known as the Watergate scandal. His investigation led him directly to the president himself, and he had a dramatic confrontation with Nixon when he subpoenaed the tapes the president had secretly recorded of his Oval Office conversations. When Cox refused a direct order from the White House to seek no further tapes or presidential materials, Nixon fired him in an incident that became known as the Saturday Night Massacre. Cox's calm, reasonable and impeccably dignified explanations of his positions earned him overwhelming support among the professional bar and a great deal of popularity among the country at large. His firing produced a public relations disaster for Nixon and set in motion impeachment proceedings. In the end, the United States Supreme Court ruled unanimously against the president and in favor of the position taken by Cox in an opinion written by Nixon appointee Chief Justice Warren Burger. Rather than face impeachment and trial with the tapes as evidence, Richard Nixon became the only United States president to resign.
Cox returned to teaching, lecturing and writing for the rest of his life, giving his opinions on the role of the Supreme Court in the development of the law and the role of the lawyer in society. Although he was recommended to President Jimmy Carter for a seat on the First Circuit Court of Appeals, his nomination fell victim to the dispute between the president and Senator Ted Kennedy. He was appointed to head several public-service, watchdog and good-government organizations, including serving for 12 years as head of Common Cause. In addition he argued two important Supreme Court cases, winning both: one concerning the constitutionality of federal campaign finance restrictions (Buckley v. Valeo) and the other the leading early case testing affirmative action (Regents of the University of California v. Bakke).
Cox was born in Plainfield, New Jersey, the son of Archibald and Frances "Fanny" Bruen Perkins Cox, the eldest of seven children.[a] His father Archibald Sr. (Harvard College, 1896; Harvard Law School, 1899) was the son of a Manhattan lawyer, Rowland Cox, and rose to prominence as a patent and trademark lawyer, and who wrote Cox's Manual on Trade Marks.[b] When Rowland Cox died suddenly in 1900, Archibald Sr. inherited his father's solo practice almost right out of law school. He built on that start to become successful in his own right. His most prominent achievement was securing the red cross as the trademark of Johnson & Johnson. Compared to the lawyers on his mother's side, his father (as Archibald Jr. reflected late in his life) did not participate much in public service, although he had "done a few things for Woodrow Wilson … at the time of the peace conference" and was president of the local Board of Education. He also served as a member of the New Jersey Rapid Transit Commission.
Cox's mother Fanny was the granddaughter of two equally eminent (in entirely different fields) men. Charles Callahan Perkins, the son of a wealthy merchant, never had need to earn money his entire life. So after Harvard, he studied drawing in Rome, established a studio in Paris and studied art history in Leipzig. Back in New England he dabbled in music, composing, presiding over the Handel and Haydn Society and becoming the largest subscriber to Boston Music Hall. Later he lectured and published books on art history and became one of the founders of Boston's Museum of Fine Arts. His grandson Maxwell Perkins, Cox's uncle, was the famed editor at the publishing house of Charles Scribner's Sons. In August 1886 Fanny's grandfather Perkins died on being thrown from a carriage while driving with Fanny's other grandfather William M. Evarts near his estate in Windsor, Vermont. Evarts was seriously injured in the accident as well.
It was Fanny's grandfather Evarts who was to become the ancestor that loomed largest over Cox's youth. He was a direct descendant of founding father Roger Sherman, a Connecticut signer of the Declaration of Independence and United States Constitution. But more importantly Evarts, a much acclaimed New York litigator in the second half of the nineteenth century (who would go on to become United States attorney general, secretary of state and senator from New York), had been involved in a number of the great political litigations of his time, beginning with his defense of President Andrew Johnson in the trial of his impeachment in the Senate. Evarts, a devoted Republican, nevertheless faced down what seemed to be the unstoppable determination of the Republicans to oust the Democrat and accidental president. The acquittal he achieved in the Senate was a point of comparison when Archibald Cox investigated another president a century later. Cox heard early on stories of Evarts's involvement in the famous Lemmon Slave Case and others. Evarts had built six mansions (one for each of his children) on his property in Windsor, where he was a local legend in Cox's time. Cox's grandmother Elizabeth Perkins was given the property later known as Runnemeade Lodge. It was here that Archibald Cox spent each of his summers (beginning when he was less than a month old) until his family's circumstances changed when he was in college. This was where Cox developed his affinity for things New England and absorbed his New England mannerisms. The summer scene in Windsor and nearby Cornish, New Hampshire was the resort for numerous figures of turn of the century culture (including Judge Learned Hand). It was also where the numerous lawyers (including Fanny's father Edward Clifford Perkins) connected with the Evarts were encountered. Cox summarized these influences in an interview in 1987: "I grew up in a legal family. My ancestors on both sides were lawyers, and it's hard to think of a time when I wasn't going to be a lawyer."
In Plainfield, where he spent non-summer months, Cox and his family lived in patrician affluence. His home, a Dutch colonial built on a 9-acre plot, featured a tennis court, maids quarters and an apartment above the garage for the chauffeur. As for the family's relations with the staff, Cox later said: "I think that the relations between my family and the 'retainers' were very good. At least that's my picture. But the symbols of status were probably much more important than any ideas of status themselves." Fanny donated her time to community activities, typical of her class; for example, to the local garden club and as member of the Muhlenberg Hospital Women's Auxiliary. In one respect only was the Cox family unlike the upper tier professionals they lived among: the Coxes supported Democrat (and Catholic) candidate Al Smith against Herbert Hoover in 1928.
Cox Sr. had definite ideas of the educational path Archie would follow; it was the same path he as well as the Perkins and Evarts had followed. And while Archie did not object to the plan, Cox Sr. sometimes despaired Cox would be accepted at the right institutions. Archie was sent attended the private Wardlaw School in Edison, New Jersey until he was fourteen. When it came time to apply to St. Paul's School in New Hampshire, Cox Sr. chanced to read a school project of Archie's and finding misspellings and other mistakes he exclaimed to his wife: "Well, the boy's a moron." To avert disaster he wrote to an administrator of the school in April 1926 to point out how he and many of Archie's other near relatives (grandparents, uncles) were alumni of St. Paul's and how his great-grandfather Perkins was an important trustee. His son was duly admitted. Cox Sr. would repeat the intervention when Archie was applying to Harvard. Cox Sr. prevailed on his friend Judge Learned Hand to write a recommendation (although he did not know the boy). Cox would later tell an interviewer of the fact that kept his career on an upward trajectory: "You've only to look at me to see that I have family connections to Harvard, to the Eastern Establishment."
Cox thrived at St. Paul, situated in rural New England only 60 miles from Windsor and populated by the sons of the "Eastern Establishment." His courses were standard for a top shelf boys school, including Greek, Latin, English and American history, literature and "some science." He also had a regular dosage of Episcopalian religion. The rigorous discipline, spartan conditions and strict schedules seemed to invigorate him and developed in him a sense of camaraderie with his classmates. Most notably he developed as a strong public presenter. In his final year he won Hugh Camp Memorial Cup for public speaking and lead the school's debate team to defeat Groton It was during this period that he read Beveridge's Life of John Marshall, which was an important early ingredient in Cox's progressive view of the law. With a warm recommendation from the head-master (and family connections), Cox was able to enter Harvard College in 1930.
Cox, Sr. advised Archie of the relative value of the different educations he would receive: "You go to college to grow up. When you go to law school, you’ll have begun your career." So he approached Harvard College with a carefreeness he would not be known for later. He joined Harvard's Finals Club, the Delphic Club, nicknamed then as the "Gashouse" for the parties, gambling and liquor (during Prohibition). He majored in History, Government and Economics and did slightly better than "gentlemanly Cs."
It was during the second semester of his freshman year that his life changed. In February his father died at 56. His mother was devastated emotionally and financially. In the midst of the Depression she was forced to take in boarders. She wrote to St. Paul to request financial assistance for her son Robert's tuition. For Archie summers at Windsor would end, for he had to earn money, the first summer as a tutor with the family of the doctor who had tended to his dying father (and to whom the family's horse was also sold). The tragedy also affected Cox's grades, although allowance for his father's death was noted in the official records. Cox would experience another tragedy in his junior year. He had developed a serious relationship with Radcliffe student named Connie Holmes. He had even introduced her to his family. That fall she suffered an attack and was admitted to a psychiatric hospital outside of Cambridge. On her release, her mother took her to Europe for convalescence. Toward the end of his junior year Cox received word that Connie had committed suicide with sleeping pills in France. The news delivered a shock and created a loss which he remembered throughout his life.
During Cox's senior year he was able to give his full attention to academics. For his senior thesis he proposed analyzing the constitutional differences of the composition between the Senate and House through early American history. His advisor, Paul Buck, told him he did not "have brains enough" for the project. Cox took up the challenge and completed Senatorial Saucer.[c] As a result of the work Cox was able to graduate with honors in History.
It was at Harvard law school that Cox began to thrive. Withdrawing from most social activities he was initiated into the intricacies of legal thinking and inspired to hard work by legendary professor Roscoe Pound. He ranked first in his class of 593 at the end of his first year. During his first year, Cox also engaged in partisan politics for the first time. He volunteered to go door-to-door in support of the gubernatorial candidacy of Lieutenant Governor Gaspar Bacon against once convicted and many times investigated Boston Mayor James Michael Curley. Bacon's defeat (by a substantial plurality) taught Cox lessons about class and ethnic politics.
Cox's second year was taken up with work on the Harvard Law Review. He also met his future wife Phyllis Ames. Cox proposed to her after only three or four meetings. She initially put him off, but by March 1936 they were engaged. Phyllis, who graduated Smith the year before, was the granddaughter of James Barr Ames, one time dean of Harvard Law School and noted for popularizing the casebook method of legal study. She was also niece of Robert Russell Ames, whose death two years previously in a yacht racing accident, together with the deaths of his two sons attempting to rescue him, was widely reported. Ames's wife, Margaret G. Ames, wrote a book to commemorate the event and her feelings, which she privately published in 1962, For Those New to Sorrow: An Anthology. On her paternal side Phyllis Ames was granddaughter of legal scholar Nathan Abbott, who, among other things, was a founder of Stanford Law School. Professor (and later United States Associate Justice) Felix Frankfurter wrote them a congratulatory note on their betrothal, which exclaimed: "My God, what a powerful legal combination!"
Not long after, Professor Frankfurter gave Cox the first big opportunity of his career. Cox's ambitions were not particularly high in his third year. He had resigned from the Law Review at the end of his second year owing to eye problems, and so he was no longer in the "center of things." In the first semester of his third year he had agreed with Phyllis to take a job in Boston and was considering a corporate law firm. Unlike other "high standers" he had not applied for Frankfurter's highly sought after Federal Jurisdiction course, even though Frankfurter's insider status as confidant to President Roosevelt made him especially important as an entre into the higher reaches of the Executive Branch. But Cox did take Frankfurter's Public Utilities course, in which he was, as a Sears Prize winner, frequently called on by Frankfurter. Even so, he was surprised when Frankfurter called him to his office and offered Cox a clerkship with Judge Learned Hand, then on the United States Court of Appeals for the Second Circuit.[d] Phyllis agreed that it was a job that could not be rejected, so they planned the move to New York on Cox's graduation.
Cox's clerkship with Hand was more like an apprenticeship. Hand did everything himself; he did not allow his clerks even to write a draft of the facts of the case. Cox sat in the same room, read the same briefs and cases, but only spoke when Hand addressed him. He would allow Cox to copy edit his opinions, but only after Hand would make three or four drafts. And if Cox had no comments on a draft given to him, Hand would tell him, "No pay today, Sonny." Cox had difficulty later in life explaining why Hand had such a profound effect on him. He suggested it was the levity that the public never saw. Or his occasional unexpected acts of kindness. Or his exacting demands for perfection and the hard work he put in to achieve it. But it was more of a view point. Hand instilled in him a profound respect for the legal tradition, but a respect tempered by a progressive's understanding of the role of courts in modern society. Cox later described a major influence of Judge Hand on American law as "both in breaking down the restrictions imposed by the dry literalism of conservative tradition and in showing how to use with sympathetic understanding the information afforded by the legislative and administrative processes." Cox explained what his "great teacher" taught him about the "legitimacy" of law: "The judge must wrap himself in the mantle of an overshadowing path. He must show that he too is bound by law." More personally Cox said: "He was more of a philosopher than most judges. I think he greatly shaped my outlook on life in ways that are very hard to express."
A year in New York City proved enough for both Archie and Phyllis, so Cox accepted an associate position with the Boston law firm of Ropes, Gray, Best, Coolidge and Rugg, now known as Ropes & Gray. In the three years he practiced there he had two important mentors, both of whose practice was in labor law The first was Charlie Rugg, who was the first to show him how briefs should be written and also gave him his first experience in union recognition negotiations (and without supervision, at that). The second was Charlie Wyzanski. Wyzanski was a Hand clerk who also early joined the New Deal, where he garnered early experience with the National Labor Relations Act (NLRB or Wagner Act) in the Labor Department and then moved to the solicitor general's office. Cox's tenure at the firm was a time of great ferment in the field, especially in labor organizational activity, notably by the textile workers in an industry that was increasingly returning to New England.
At Ropes, Gray Cox appeared regularly for motion practice in the Superior Court in Boston, tried "one or two" cases before a judge and argued a case before the Massachusetts Supreme Judicial Court. It was Wyzanski, his example and connections, however, who would have the biggest influence on his early career.
As the war in Europe became increasingly ominous for the Western democracies, Cox and his family came to believe that American assistance was vital. Cox's younger brother Robert had left Harvard to join the King's Royal Rifle Corps. Shortly after the National Defense Mediation Board ("NDMB") was established in March 1941, President Roosevelt appointed Wyzanski its vice chairman. The Board was designed to mediate labor disputes in industries affected by the defense-related industrial boom. In June Wyzanski asked Cox to become one of the Board's four assistants. Cox accepted and moved to Washington, D.C., with Phyllis and their two children in what would be the first of his many stints of service to the national government.
Although the NDMB had been designed with the hope of preventing work stoppages in labor disputes, it was given only the power to assist in voluntary disputes resolution and making public findings of fact. The Board itself took the soon-to-be familiar "tri-partite" composition of representatives of industry and labor (four each) and three "neutral" public appointees. From the start it was criticized for not having the ability to forestall strikes, on the one hand, and of unnecessarily curtailing labor's negotiating ability, on the other. It did not take long before the board "came to grief," as Cox (who rose to the rank of Principal Mediation Officer) put it. United Mine Workers boss John L. Lewis stymied the Board's attempt to intervene in the case of the "captive" coal mines (those owned by steel mills). The union was seeking a closed shop, requiring mine owners to hire only union workers. The board (including the two A.F.L. members) recommended against the provision. Backing Lewis, C.I.O. members withdrew from the Board, and Lewis defied the government's threat to use troops to resolve the strike. At that point the NDMB "ceased to function as a board." Eventually the president brokered binding arbitration, which in the end backed the union's position. With entry into the war imminent,[e] Roosevelt dismantled the NMDB.
Wyzanski had been appointed to the federal bench in Massachusetts at the beginning of December, and Cox, who was unable to work with Board chairman William Hammatt Davis ("we never hit it off"), felt abandoned. But through the intervention of Judge Hand (not disclosed to Cox), Cox was offered a position in the solicitor general's office.
At the solicitor general's office Cox was the least senior of the seven or eight assistants who worked for Charles Fahy. It was nevertheless prestigious simply to work there, and the lawyers had much independence. The bulk of Cox's work involved reviewing decisions by various divisions of the Department of Justice (Civil, Tax, Lands, Antitrust and Criminal) as to whether to seek review by the Supreme Court of Circuit Court cases or certioriari of decisions relating to the independent federal agencies (the National Labor Relations Board (NLRB), S.E.C., and the I.C.C.). Cox generally submitted his reports to the first assistant. He also was assigned Supreme Court briefs or petitions for the Supreme Court written by attorneys in the attorney general's office. Cox would edit or re-write the briefs before Fahy or his clerk would review them. Fahy also had Cox argue an NLRB case in the Circuit Court. The most memorable other case, he would repeatedly say, was the first case he appeared before the Supreme Court, merely to confess error. The Court however affirmed 4–4, and Cox was able much later to say that he was the only attorney to lose both his first and last case before the Supreme Court by split decisions.[f]
Notwithstanding the challenging work, Cox was restless. He had come to Washington to aid in the war effort, and he felt vague guilt that his brother was serving in North Africa and he was not doing his part. Toward the end of the Court's session in 1943, Fahy "released" Cox when an opportunity arose to work in the Office of Foreign Economic Coordinator (OFEC).
Thomas K. Finletter came to Washington as a special assistant to Secretary of State Cordell Hull, and he became director of the OFEC, which dealt with procurement of strategic materials from neutral countries and other matters relating to foreign funds. Most interesting to Cox was that he acted as the head of a Combined Allied Committee on North Africa. When Robert Cox learned of Cox's transfer he harbored vague hope that Archie would be sent to North Africa where they could meet, but it was not to be as Robert was killed shortly after Cox took the new position.
Th position at the State Department also did not last long. Cox surmised that Finletter "was a little too ambitious." He had hopes that he would become responsible for economic aspects of reoccupied Europe. Instead the incoming cables stopped being routed to him—the way the State Department signals the end of a project. At the end of 1943 Cox received a call from Secretary of Labor Frances Perkins who offered Cox the job of associate solicitor of the Labor Department. Once again the offer was almost certainly owing to the intercession of Judges Hand and Wyzanski.
As associate solicitor Cox's job in the Labor Department was to supervise enforcement at the District Court level of federal labor statutes. Cox had a staff of eight lawyers in Washington and supervised the Department's regional offices, including deciding when a regional attorney could bring suit. Most of the litigation involved wage and hours issues under the Fair Labor Standards Act. His background in the solicitor general's office also allowed him to handle much of the appellate work. By virtue of his position Cox also occasionally sat as an alternate public member of the Wage Adjustment Board, which was a specialized subsidiary of the National War Labor Board which dealt with the construction industry and attempted to maintain labor peace by mediating non-wage disputes and setting prevailing wage rates and increases under the Davis–Bacon Act.
Cox stayed in this position until Perkins left in the summer of 1945. The war in Europe was over, the war in the Pacific was soon to be, and Archie and Phyllis decided to return to Boston. The offer at Ropes, Grey was still open.
Cox returned to Ropes, Gray with the intention of spending his professional career there. Instead, he lasted five weeks. Dean Landis of the Harvard Law School offered to hire Cox as a probationary teacher in the fall of 1945. Cox accepted, despite the substantial cut in salary he would take, but on the condition that he would not have to teach corporations or property. Landis agreed; his expectation was that Cox should become a nationally recognized expert in labor law. In addition to labor law, Cox started out teaching torts. Later he would also teach unfair competition, agency and administrative law. He was made a permanent professor during the 1946–47 academic year, a time when the law school greatly increased enrollment in the post-war boom. During the 1947–48 Term Cox also volunteered for appointment by the Supreme Court to represent indigent defendants and was appointed in two cases of prisoners from the Eastern Pennsylvania Penitentiary in Philadelphia. In one case he obtained a reversal on the ground that the defendant had been deprived assistance of counsel during sentencing phase, where a lawyer might have prevented a misreading of the defendants' previous record.[g] In the other case the Court affirmed, over four dissents, the possibly erroneous application of Pennsylvania's habitual offenders statute, even though the defendant was unrepresented at sentencing. Cox also became a frequent panelist at legal and judicial conferences.
Cox first began writing articles on labor issues for peer reviewed journals in 1947. Over time this writing would become a prolific body of work. The same year he became a member of the National Panel of Arbitrators of the American Arbitration Association and began a long career as a labor arbitrator. The proceedings in which Cox sat ranged "from local level confrontations such as those brought by specific school boards to major interstate cases such as Consolidated Edison Co. of New York and New England Petroleum Corporation." The labor disputes usually involved wage, hiring, promotion, and dismissal grievances. In 1948 he published the first "modern" casebook on labor law, a work of over 1400 pages, which one reviewer found "alarming" but overall concluded "the selection of material is excellent."[h] The casebook was the first to emphasize (almost exclusively) the collective bargaining agreement, which the Wagner Act had put at the center of industrial relations. Before Cox's text such courses mainly dwelt on industrial warfare.
Cox began his association at this time with John T. Dunlop, a labor economist who had joined the Harvard faculty a year before Cox. Their thinking would influence each other, and the two collaborated on two articles in the 1950s and would be involved in similar arbitrations (particularly in the construction industry). They later also involved themselves in similar federal wage mediation efforts. The two (Cox in law and Dunlop in economics) would become the most important influences in the developing legal model for industrial relations, which detractors from the later critical legal studies movement labelled "industrial pluralism"—a model which "promoted the polices of free collective bargaining, responsible unionism, limited worker participation in management, and a restricted right to strike. Industrial pluralists regarded the state as a neutral party that treats organized labor fairly so long as it functions within this framework." Cox's role in developing this view went beyond academic writing, and included his role in various government agencies, his participation in panels and symposia, his work in professional associations, his recommendations and advice to policy-makers and, of course, through his students. Cox would also occasionally draft bills, such as he did for three Massachusetts Republican state legislators who were seeking to broker a compromise between the AFL-CIO anti-injunction bill and the Republicans' refusal to modify the state courts' practice of issuing injunctions, without notice or hearing, in a host of labor disputes as well as recognition and union security cases.
Cox's experience as an arbitrator, his collaboration with Dunlop and others in conceiving a labor policy built around collective solutions, and his own belief in the power of reason and good faith led him to conclude that optimal results for workers and industry could be achieved without coercion by (or on behalf of) either side. And when there was a government interest involved, he firmly believed in the ability of the New Deal-type tripartite boards to reach the optimal results for the private parties and the public, even despite his own experience at the NDMB. He was so certain of its usefulness he was willing to recommend it even during peacetime.
In 1947 most foreign policy liberals believed that a massive recovery program for European democracies was necessary to prevent their succumbing to Soviet aggression or to subversion by totalitarian ideology. In response to an urgent plea by Columbia scholars,[i] Congress authorized interim relief. But there was fear that the level of assistance needed would put intolerable inflationary pressure on the U.S. economy. It was the Harvard faculty this time that provided the suggestion: an allocation program to moderate demand, restricting credit and if necessary price controls. Wage policy was not specifically enumerated but Cox's name on the list made clear that that would be part of the "aggressive anti-inflationary measures" that might be resorted to.[j] That spring aid relief began under the Marshall Plan but no mechanism to intervene with the economy, especially wages, was introduced to replace the National Wage Stabilization Board, which had expired in 1947.
Within two years, however, full mobilization for war brought the wage machineries back, this time under the newly created War Stabilization Board and its related programs.[k] Harvard Law School had readied itself from the start, sponsoring a program for practicing lawyers on legal aspects of mobilization at which Cox and Dunlop spoke on wage stabilization and industrial dispute resolution. Both were called to sit on boards. From 1951–52 Cox served (without compensation) as co-chairman of the Construction Industry Stabilization Commission, a board that dealt with wages in an industry with distinct labor issues.[l]
The wage control scheme came apart with the steel strike in 1952. Anxious to maintain production, Truman seized the steel industry without Congressional authority. When the move was struck down by the Supreme Court, Congress replaced the board with one in which, because it was stripped of power to set wages, both the C.I.O. and A.F.L. agreed to participate. Truman, using recess appointment powers, appointed Cox to chair the new board. Cox claimed that despite its limitations he was "determined to 'make it work.'"
The trend of cases piling up to be resolved, however, disturbed Cox. He told a meeting of the American Bar Association's Labor Relations Section in San Francisco: "Every morning my breakfast is spoiled by reading about another wage settlement calling for an increase whose approvability is doubtful under present stabilization policies."[m] But in the first case he sat on, the board approved a 10¢ per hour increase for 25,000 employees of North American Aviation, a major producer of military aircraft, even though the raise was 50% above the amount permissible under the previous board's policy. After the decision the industry members met with Cox to tender their resignation. He pleaded with them not to dash the board, telling them that proposing a new, somewhat higher wage rate as a matter of uniform policy, one consistently held to, would best keep wages stabilized. They agreed to stay on.
The case that would be the board's undoing involved the United Mine Workers, just like the case the brought down the NDMB. Shortly after Cox's speech to the ABA, the coal industry agreed with soft coal miners to a wage increase of $1.90 a day plus an increase in benefits.[n]
It became clear that John L. Lewis, once again, had his members ready to defend every bit of their gain. When one company refused to include the increase in miners' pay until the stabilization board had approved the agreement, 700 miners walked out of the mine in Harrisburg, Illinois, and there was fear that a "silent strike" would spread among the 375,000 soft coal miners in the U.S. Although Cox promised prompt review of the wage increase, a week later, when the strike had spread to 117,500 miners, Cox planned to announce a one-week postponement of the vote at the suggestion of the board's director Roger L. Putnam, but the labor representatives refused and Cox cancelled the announcement. On the last day to decide, October 18, 1952, the Board disallowed anything above a $1.50 a day increase. Announcing the decision Cox said: "A wage stabilization program under which an excuse was found for approving every increase requested by a powerful group would be a fraud." The coal miners walked off their jobs, while Lewis assailed the board: "Four agents of the National Association of Manufacturers, aided by a professor from the Harvard Law School and his timid trio of dilettante associates, form a cabal to steal 40 cents a day from each mineworker." The president first intervened to resolve the walkout, and then after Putnam affirmed the board's decision, on December 3, reversed it and reinstated the pay raise. Despite the advice of Dunlop and another friend,[o] Cox resigned the next day. Some colleagues saw this as an unnecessary act of "grandstanding" and a disservice to the president, particularly as Cox made his resignation a very public show of "principle" instead of quietly resigning and also because it set off a chain reaction with industry members resigning, the Chamber of Commerce refusing to replace them and finally the resignation in frustration of Putnam himself.[p]
The few months he spent in Washington would tarnish his reputation for many years with conservatives constantly recalling that he was a "wage-price controller" and liberals who saw him as "vain, easily offended and highly principled." Cox returned to Harvard thinking he would never participate in national government again.
On his return to Cambridge there were rumors that Cox might succeed James Bryant Conant as president of Harvard University. The position instead going to Nathan Pusey, Cox went back to a career consisting of three parts: teaching, professional associations and arbitrations, and scholarly writing.
As a scholar Cox was considered expert in his fields, but as a teacher he was regarded as humorless, distant, rigid and eccentric. Yet despite his reputation for aloofness, he volunteered time to help revise student law review notes, judge moot court and appellate advocacy competitions and provide career advice. He also taught labor regulations to selected labor leaders as part of Harvard's "Trade Union Program."
To make time for professional activities, Cox scheduled his classes for the beginning of the week. Out-of-town lectures, bar committee meetings, arbitrations and related work could be done at the end of the week. Cox was elected chairman of the State Legislation committee of the ABA's Labor Relations Law Section (1948–49) and then secretary of Section (1954–58). He drafted legislation for state legislatures on a non-partisan basis. (Cox was also non-partisan, at least publicly, in elections; he never worked for anyone in a political campaign before Kennedy's 1960 national campaign, aside from his door-to-door canvassing for Gaspar Bacon when he was in law school.) In 1958 he was made a member of the advisory committee of the Civil Liberties Union of Massachusetts. He continued sitting on arbitration and other panels. One novel panel was one established in Philadelphia by the Upholsterers' International Union providing for an outside group to police union discipline. Cox was named chairman of the panel.[q] Among the major arbitrations Cox sat on were the two major railroad arbitrations involving the engineers in 1954 and 1960, in which he and Princeton economist Richard A. Lester were the two neutral members. In New England he arbitrated disputes between unions and management in the textile and machine tools industries.
It was with his academic writing and bar association work, however, that Cox became immensely influential in the labor field. His writing was so prolific that Dean Griswold pointed to Cox when he needed an example of the kind of academic output he was seeking from the faculty. Given that the peak of his academic career also coincided with the enactment of the statutes that defined industrial relations, his work, usually the first on any new topic, shaped the Supreme Court's thinking. His one-time student and later colleague Derek Bok described this influence:
In the 1950s, the National Labor Relations Act was still relatively new, and the Taft-Hartley Act was in its infancy. Over the decade, the Supreme Court had a series of opportunities to clarify the meaning of good faith bargaining, the scope of mandatory arbitration, the legal status of arbitration, and other important issues of policy left open by Congress. In case after case, when the majority reached the critical point of decision, the justices would rely on one of Archie's articles.
In addition to his direct effect on Supreme Court decisions, Cox's scholarly writing influenced other academics and practitioners who widely cited him. The Journal of Legal Studies lists Cox as one of the most-cited legal scholars of the twentieth century. The framework he developed, first in the two articles with Dunlop in 1950-51, then elaborated on his own, became the standard view of the Wagner and Taft-Hartley Acts. It assumed roughly equal bargaining power between union and management and interpreted the labor laws (often contrary to the language of the statutes themselves) to limit individual employee rights unless pursued by his bargaining agent, to restrict the subjects on which management is required to bargain about based on past practices, to permit unions to waive rights the statutes otherwise gave to employees and in general to advocate the notion that labor statutes should be interpreted to promote industrial peace over enhancing the economic power of labor. The framework remained the dominant view of federal labor relations until the late 1950s when concerns over member participation began to shape policy. It would be Cox and his work with Senator Kennedy on the bill that became the Landrum–Griffin Act that would initiate the new framework.
In 1953 the young and ambitious John F. Kennedy, new to the Senate, decided that labor relations would be the area that he would specialize in to begin building a policy and legislative resume for use in future political endeavors. He wrote to Cox in March 1953 inviting him to testify before the Senate Committee on Labor and Public Welfare. Cox was a natural ally to seek out. He was one of Kennedy's constituents and a fellow Harvard alumnus. More importantly he was a nationally recognized academic expert on labor law and a liberal Democrat[r] with a predisposition towards labor. Cox testified on April 30 on various possible amendments to the Taft-Hartley Act relating to state-federal jurisdiction and secondary boycotts. The two had lunch afterwards but nothing came of the bills.
Four years later Kennedy became a member of the McClellan Committee whose hearings on labor corruption began revealing unsavory practices by labor leaders. Kennedy's participation in the volatile televised hearings provided a high risk (by jeopardizing labor support), high reward (by increasing public exposure) opportunity that required political finesse based on substantive knowledge. What focused the spotlight more sharply on Kennedy was that his brother was the chief counsel of the committee and Robert Kennedy's wrestling matches with Teamsters leader Jimmy Hoffa during his examinations were riveting. Kennedy himself had become chairman of the Subcommittee on Labor, and so, with a view to get out front on issues of regulation of union leadership practices, he wrote Cox in April 1957 requesting that Cox put together an informal group of academic experts to advise him on specific labor reforms. The group of labor academics selected by Cox,[s] which was confined to considering issues of internal union management and addressing abuses uncovered by the McClellan Committee, met through the fall and winter of 1957 and delivered in December a written report to Kennedy dealing with trusteeships, union memberships, expulsions and union elections. The efforts of the group proved useful to Kennedy aside from legislation; Kennedy was able to milk good publicity from his "brain trust" with only vague hints at what he proposed to do.[t] As for legislation, Kennedy asked Cox to draft the bill. Cox did so himself and sent it in January 1958. Against the advice of Cox (who knew Kennedy was unprepared for the brusk style of labor heads), Kennedy decided to show the proposed bill to labor leaders (whom Cox referred to with the somewhat derogatory term "labor skates"[u]) including George Meany and A.J. Hayes. As Cox put it, they "gave him a very rough time."[v] At the committee hearings Meany gave "very hostile, very hard-nosed" testimony. When Kennedy tried to assure him that the legislation was produced by academics who were friends of labor, Meany replied: "God save us from our friends."[w] Kennedy was able to skillfully handle the subcommittee's consideration of the bill, deflecting Republican concerns and drawing attention to himself. Republicans directed their hostility towards, Cox, whom they knew was behind the bill, tutored Kennedy and provided the legislative strategy. Stewart McClure, clerk of the committee, said that the Republicans hated Cox, because his coaching allowed Kennedy to parry all questions and treat difficult points with "the precision of a trained surgeon."
With Republican co-sponsor Irving Ives, whose consent to lend his support was finessed, the bill became known as the Kennedy-Ives bill. Cox spent much time in Washington in the first half of 1958 advising Kennedy, dealing with union representatives and second-chairing Kennedy at private meetings with legislators. When the bill reached the floor of the Senate, it passed 88-1. The editorial board of the New York Times called the bill "a triumph of moderation and a powerful blend of principle and political savvy." In particular it praised the policy approach of the Committee Report (largely designed by Cox), which sought to ensure against corruption while at the same time showing care "neither to undermine self-government within the labor nor to weaken unions in their role as bargaining representatives of employe[e]s." But, as the Times had warned, the bill was sent to its political graveyard in the House when the Eisenhower Administration, thinking that tougher measures on unions were needed, cobbled together a coalition which included Southern Democrats and defeated it.
Kennedy reintroduced his bill (now with Senator Ervin as co-sponsor) in the 1959 session. This time labor over-played its hand, and believing that the November 1958 elections had given them a favorable vote in the House, they demanded "sweeteners" in the way of amendments to the Taft-Hartley Act.[x] Cox urged that the issue of union anti-corruption measures be kept separate from the question of permitted labor practices, and on this Kennedy was sympathetic. But the union leaders wanted a "price" for their support. Kennedy responded by obtaining approval for a Blue Ribbon commission to study the issues; Cox was named chairman and the commission included Arthur Goldberg, David L. Cole, Guy Farmer and W. Willard Wirtz. In the end, Kennedy accepted labor's "sweeteners," and Ervin took his name off the bill. At the same time, Senator McClellan proposed a labor "Bill of Rights" which would have drastically expanded federal intervention into internal union affairs. Kennedy and Cox were able to draft a substitute which watered down the more anti-union provisions. Cox took the new version to McClellan's counsel, Robert Kennedy, who, much to Cox's surprise, objected to it. Cox concluded that Robert Kennedy lacked sympathy with and even an understanding of organized labor. It was the beginning of the wariness with which Cox regarded Robert Kennedy. Senator Kennedy simply ignored his brother's objections. Having worked diligently to accommodate all positions, Kennedy sent the revised bill (without McClellan's "Bill of Rights") to the Senate floor where it passed in April 1958, by a vote of 90-1.
In the meantime, the Eisenhower Administration and business lobbyists were using the lurid details uncovered in the McClellan hearings to pressure conservative Southern Democrats and Republicans to come up with bills not only regulating union internal affairs but also cutting back on permitted union activities and bargaining power. The bill the House passed was the one sponsored by Georgia Democrat Phillip Landrum and Michigan Republican Robert Griffin.[y] In addition to imposing more extensive regulation of internal union affairs, it provided for amendments to the Wagner Act prohibiting certain union activities, such as certain secondary boycotts and certain picketing in connection with organizing activities, eliminated "hot cargo" agreements (in which prohibited employers from dealing with companies with labor disputes) and gave over to the states jurisdiction over matters on which the NLRB declined to exercise its jurisdiction. The bill passed by a vote of 303-125, stunning labor officials both because it was substantially more anti-union than anything the Senate contemplated, including Kennedy's bill from 1957, and because they badly misjudged the results of the 1958 election. Their only hope was in Kennedy's ability to salvage what he could in the meeting between the chambers to reconcile the two bills. Kennedy chaired that meeting and brought along Cox as his chief aide.
Cox was "surprised" at the rough and tumble of the conference committee. Senator Dirksen tried to bar him altogether as "having no business here." Then on at least two occasions Cox was personally insulted in a way that was wholly outside his experience. Conservative North Carolina congressman Graham Arthur Barden complained that he was tired of "these intellectuals nitpicking … ." Landrum in a fit of pique pointed at Cox and called him a "Communist." In both cases Kennedy struck back, telling Barden that he was "sick and tired of sitting here and having to defend my aide time and time again …" and as to Landrum, his "Irish temper" (as Cox called it) was so in display and the dressing down he administered to Landrum was so severe that the meeting had to be adjourned to let the sides cool down. In the end, after extended grueling negotiations, a bill was finally agreed to, and it became the Labor Management Reporting and Disclosure Act. It was substantially more anti-union than the Senate bill, but Kennedy's less onerous provisions governing internal union affairs prevailed. The prohibitions on union activity from the Landrum–Griffin bill remained, but Kennedy saved the Taft-Hartley "sweeteners." All in all, years later Cox concluded that "there were things that would have been better, but it came out not too bad." For his part, Kennedy did not try to have his name put on the result, and it became known as the Landrum–Griffin Act.[z] Nevertheless, it showed that Kennedy could maneuver a complex piece of legislation from beginning to end, an important part of his resume for the quest for the presidential nomination next year. Cox later noted: "this was his one big thing legislatively." The worry was that despite the effort, it might lose him labor support.[aa] And while this bill remained his one legislative achievement, Cox would later find out that he really did not have "any interest in labor at all. I don’t think it aroused his interest." For his part Cox left with unpleasant conclusions about the process: "After living most of one's life in a relatively rational community, watching the House of Representatives at work is one of the most disheartening sights in the world."
In the fall of 1959, after the work on the Landrum–Griffin Act had wound up, Kennedy confided to Cox the open secret that he was running for president. In January 1960 he wrote Cox formally asking him to head up his efforts to "tap intellectual talent in the Cambridge area" and then "ride herd over twenty or thirty college professors" in their activities for him.[ab] Cox brought a number of eminent policy experts in a number of fields into contact with Kennedy. Although many were skeptical of his candidacy (and some had been loyal to or inclined towards either Adlai Stevenson or Hubert Humphrey), Kennedy won them over at a meeting in Boston's Harvard Club on January 24.[ac] In the period leading up to the Democratic Convention in July Cox acted mainly as a "stimulator" to prod various academics to send memoranda to Kennedy or to find academics to supply Kennedy with policy positions on specific topics. While before the Convention Cox had not recruited extensively beyond the Boston area, he had at least one recruit from the University of Colorado and recruited from Stanford. as well. Even though the number was not large before the nomination, no other Democratic contender, not even Stevenson, had made an effort to recruit intellectual partisans.
As with the case of Cox's informal group of labor advisors, Kennedy was anxious to use Cox's contacts not only for their expertise but also for the éclat they gave his campaign. A Congressional Quarterly article in April, widely reprinted in local papers, named Cox and the other Cambridge advisors as a key to the kinds of policies Kennedy would advocate. "Of John F. Kennedy's political talents none has been more helpful to him than his ability to attract capable men to his cause," the Times said in the middle of the Convention. The description of Cox's academic advisers was designed to recall Roosevelt's "Brain Trusts": "More ideas poured in from Cambridge, Mass., where an astounding galaxy of scholars had made themselves and informal brain-trust for Senator Kennedy."
After the Los Angeles Convention Kennedy, now the nominee, asked Cox to move to Washington to have an expanded role, hiring speechwriters and coordinating academic talent. Cox accepted, and then Kennedy point blank asked Cox if he thought he could get along with Ted Sorensen and explained "Sorensen's fear that somebody was going to elbow his way in between him and Kennedy." Cox assumed he could. Cox had been unaware that Sorensen had already been at work, back in February, trying to compartmentalize and minimize Cox's group's efforts. Sorenen told Joseph Loftus of the Times that the Cambridge group was "something 'much more talked about than fact.'" Cox would soon discover, however, that Sorensen always "was terribly worried about being cut out" and protected Kennedy from independent advice including Cox's.
Cox set up office in Washington, D.C., hired other speech writers and solicited research from academics. Cox soon found that the speeches his group wrote were not used in campaign events. Cox much later recognized that his manner of speech-writing was "even in 1960, old-fashioned," filled as they were with statistics and Roosevelt-style detailed explanations of policy. Cox wrote to Sorensen (who travelled with Kennedy) seeking a delineation of roles, but was never satisfied. Cox tried to force a showdown by flying to meet Sorensen and Kennedy in Minneapolis on October 1. In the campaign plane Sorensen loudly dressed down Cox, telling him his written speeches were inadequate for campaign events. On October 11, Kennedy told Schlesinger that he was aware of and regretted the tension between Sorensen and Cox, but said that Sorensen was "indispensable" to him. In view of Sorensen's possessiveness Kennedy even suggested that Schlesinger avoid Sorensen and communicate with him through Jackie. Cox spent the last month of the campaign in Washington in low spirits. Before he left Washington, just before election day, Kennedy suggested that Cox might be helpful during the transition (if Kennedy won). Cox replied in a non-committal "sour" way, summing up his disappointment with his role in the campaign.
Despite Cox's disappointment, the work of the speech-writing unit proved vital to Sorensen and Dick Goodwin by providing them with much of the content, factual support and occasional turn of phrase of their stump speeches on the campaign trail.[ad] Cox's group, together with Robert Kennedy and Myer Feldman, who headed Kennedy's opposition research, also issued nearly daily statements to the press, independent of the candidate who was on the road. Moreover, research that flowed through Cox to the campaign provided the beginnings of opinion sampling that informed the candidate's approach to audiences. Nevertheless, Cox's response to Kennedy ended any chance he would participate in the transition.
Despite publicly downplaying the idea that he was being considered for public office, Cox was concerned he might be offered a seat on the NLRB or a second echelon position in the Department of Labor. Neither position offered new challenges for him, but he worried about the propriety of refusing. Before leaving for his family Christmas celebration in Windsor, he was tipped by Anthony Lewis of the Times that he had been chosen for Solicitor General. Cox decided that if this was true, he would tell the president-elect that he needed time to think the matter over. But when Kennedy called, interrupting a family lunch, he accepted immediately. Cox was unaware until much later that his law school colleague, Paul Freund, whom he had recommended for the position, declined and recommended Cox in turn. Next month Cox appeared before the Senate Judicial Committee for confirmation hearings, but his reputation was such that the hearing took only ten minutes; even minority leader Dirksen, who knew Cox from Landrum–Griffin days, said he "had been quite impressed with his legal abilities … ."
In the nearly century that the office had existed before Cox occupied it, the solicitor general, as the government's lawyer before the Supreme Court, was immensely influential. Cox held the position at a time when the Warren Court was about to involve the Court in issues never before considered appropriate for judicial review, at a time when the country was ready for the Court to decide various questions of social justice and individual rights. Cox was aware of the pivotal time the Court and he faced and explained it in an address right before the beginning of the first full Term he would argue in:
[A]n extraordinarily large proportion of the most fundamental issues of our times ultimately go before the Supreme Court for judicial determination. They are the issues upon which the community, consciously or unconsciously, is most deeply divided. They arouse the deepest emotions. Their resolution—one way or the other often writes our future history. … Perhaps it is an exaggeration to suggest that in the United States we have developed an extraordinary facility for casting social, economic, philosophical and political questions in the form of actions at law and suits in equity, and then turning around and having the courts decide them upon social, economic, and philosophical grounds. It is plainly true that we put upon the Supreme Court the burden of deciding cases which would never come before the judicial branch in any other country.
Cox began his Supreme Court advocacy by choosing a case to argue that would announce the new emphasis to be placed on civil rights.
During the customary introduction of the Solicitor General to the members of the Court, Justice Frankfurter had an extended talk with his former student. The justice advised Cox that the first case to argue should be something involving criminal law. Cox gave due weight to the recommendation, but he met vigorous objections from his assistant Oscar Davis who argued that civil rights was the most important legal issue facing the country and that Cox should signal the new administration's commitment to fight for it in his first case. Cox agreed and selected Burton v. Wilmington Parking Authority. The case, brought by an African-American who was barred from a private restaurant renting from a building owned by the state of Delaware, confronted the Court squarely with the limitations on Fourteenth Amendment guarantee of "equal protection of the laws" erected by the so-called Civil Rights Cases of 1883 which held that the constitutional guarantee only applied against "state action." Cox persuaded the Court that the fact that the business was a state lessee as well as franchisee, was located in a parking complex developed by the state to promote business, and, a piece of "evidence" asserted by Cox from his own visit to the scene, that the complex flew a Delaware flag in front of the building all rendered the state a "joint participant" with the restaurant, sufficient to invoke the Fourteenth Amendment. The Court agreed. It was the beginning of the Court's dilution of the "state action" requirement in racial discrimination cases.
By May 1961, the civil rights movement, led by James Farmer of CORE initiated what would become a wave of non-violent confrontations against discrimination in public transit and other accommodations. The attorney general's office under the personal supervision of Robert Kennedy took active measures to protect the protestors in the face of local political and police indifference to or active complicity with violent resisters. Cox was regularly involved in meetings over day-to-day Justice Department activities, while at the same time he prepared to argue cases seeking to overturn state court convictions of civil rights protestors (under various vagrancy, trespass and even parading without permit statutes). Cox came into close contact with Robert Kennedy, and while the two had widely different styles (Kennedy was impulsive and somewhat cavalier of legal principles; Cox was cautious against making missteps that would set the movement back or commit the Court to a position which might lose it legitimacy), Cox grew to admire Kennedy. Impatient of a piecemeal approach, Robert Kennedy, but more importantly the civil rights community, particularly Jack Greenberg of the NAACP Legal Defense Fund, sought near elimination of the "state action" doctrine, arguing that restaurants were like "common carriers" subject to the Fourteen Amendment or that the mere act of enforcing a trespass law used to further private discrimination was itself sufficient "state action."[ae] Cox did not believe the Court would make so radical a break with eighty-year-old precedent. So in each case he argued on narrow grounds which did not require the Court to overrule the Civil Rights Cases, and each case he won on those grounds, in the process infuriating Jack Greenberg who was arguing in those very cases for the broader approach. The cautious approach, however, garnered Cox much credibility with the Court, which came to realize that he was not going to lead them into areas with uncertain future consequences. After a number of these cases, however, even the Court requested briefing on the "state action" doctrine in Bell v. Maryland in 1962. Cox took a slightly more advanced position arguing that where trespass laws were used to prosecute civil rights demonstrators in states such as Maryland where there was a history of racial segregation by custom and law, then the discrimination was part of the enforcement sufficient to invoke state action. Although even this position disappointed civil rights activists and the Justice Department, it prevailed, but in the face of three dissents (including that of Justice Black), suggesting that a broader rule might have been rejected by a majority. The issue would be mooted by public accommodations legislation, which Cox helped draft and defended before the Court in 1965.
The cases that troubled Cox the most during his tenure, and the area where he differed widest from Robert Kennedy, involved malapportionment of voting districts. Over the years failure to re-allocate voting districts particularly in state legislatures, produced wildly disproportionate districts, with rural areas having many fewer voters than urban districts as a result of the urbanization of America.[af] The result was dilution of the urban vote with policy resulting accordingly; rectification would benefit Democrats politically, while malapportionment stood as an obstacle to legislation that improved the lot of city-dwellers, inorities and the poor. The problem was that Justice Frankfurter had written in a plurality decision in 1946 that such issues amounted to a political question—a matter not appropriate for the Court to resolve.[ag] On the other hand, given that political interests were entrenched, and those with disproportionate power were not likely to give up their greater share, a political solution was unlikely.But a case surfaced from Tennessee which seemed ideal to test that ruling. Tennessee had not reapportioned its legislature since 1910 and, as a result, there were urban districts that had eleven times the citizens of rural districts. Cox decided to submit an amicus curiae brief supporting the plaintiffs in Baker v. Carr. The case was argued once in April 1961 and re-argued in October. In between Cox was subjected to an unpleasant onslaught by Frankfurter at a public dinner and relentless questions in the October argument. When the decision was announced, however, Frankfurter was joined by only Harlan; the result was 6-2. The first case proved far easier than Cox expected.[ah] The holding was relatively narrow, simply providing federal court jurisdiction, and followed the points in Cox's brief. But Cox had much more difficulty with the follow up cases, because he could not persuade himself that history or legal theory would demand a one-man-one-vote standard in all cases. He developed what he later called a "highly complex set of criteria," but in the end when the Court finally erected the one-man-one-vote standard it simply made the general rule subject to all the exceptions that Cox had tried to weave into his proposed standards. As Chief Justice Warren's clerk later told him "all the Chief did was take your brief and turn it upside down and write exceptions to the one-person one-vote that covered all the cases that you had attempted to exclude by this complicated formula.". The case was Reynolds v. Sims, 377 U.S. 533 (1964), holding that election districts must be roughly proportional to population.
In 1962 the Court would change when two vacancies occurred, involving the seats of two conservative judges, both evidently victims of Baker v. Carr. Shortly after learning the result of that case in March 1962, Cox was advised that Justice Charles Evans Whittaker announced his resignation. Cox wrote a letter of regret. The judge promptly phoned Cox, invited him to his chambers and advised him that the agony of deciding the first reapportionment case "just about killed me."[ai] The next month Justice Frankfurter had a stroke. When Cox visited him, after his retirement in August, Frankfurter "murmured—he couldn’t speak altogether clearly, but he had murmured something that seemed to say it was the government's position, my argument in Baker and Carr, that brought on his first stroke and led to his forced retirement."[aj] Whatever the cause, the president had two vacancies to fill, and Cox was at least a logical candidate.[ak] Cox's name was on the short list for the first vacancy,[al] but Kennedy wanted to get ahead of the momentum for a conservative pick that Southern Democrats mounted and promptly selected Deputy Attorney General Byron White, largely on the ground that he was not a narrow Harvard academic, which Kennedy felt had characterized too many of his recent appointments. As for the later choice, the president initially proposed Freund to replace Frankfurter, but Robert Kennedy argued that Freund had refused the appointment that Cox took and since Cox "had done a fine job" he deserved the appointment more than Freund. In the end the president felt constrained to appoint a Jew to the "Brandeis-Frankfurter" seat, and appointed Arthur Goldberg. As for Freund and Cox, the president told Schlesinger: "I think we'll have time for everybody." Shortly after White had been appointed, Cox attended a dinner at which retired Justice Stanley Reed told Phyllis: "Too bad Archie will never become a justice, … It's like a pendulum; it swings back and forth. If it swings out and hits you when it swings in your direction, then you are named to the Court. If it swings in your direction, but doesn’t get there, it never swings further on a later occasion, so you never get it." Cox said taking this to heart saved him much "hoping and anguishing."
Archibald Cox was the only person in the Justice Department who had a personal relationship with the president (other than his brother the attorney general). Kennedy occasionally used the relationship to engage Cox directly on legal issues of interest to him. Among such issues were legal issues in legislation providing for low interest loans for construction of religious schools, wage and price controls during the steel price increase in 1962,[am] research in connection with the interference of government officials with the admission of James Meredith into University of Mississippi[an] and resolution of the "mudlumps" issue between the federal government and Mississippi.[ao]
The relationship between Cox and Robert Kennedy grew close over time. Cox, like many others, believed that Robert, who graduated in the middle of his class at Virginia Law School and had never practiced at all, had insufficient qualifications for the office. Cox's qualms went further back, to the time of his support for the McClellan "bill of rights" for union members. But with time he grew to trust and admire Robert. Robert for his part always remained respectful and deferential to Cox on matters of law. He never ordered Cox to take a position before the Supreme Court, but often would subtly "lobby" him. By calling repeated meetings where Justice staff could air their opinions, he pushed Cox towards the one-man-one-vote position in the reapportionment cases, for example. Kennedy never convinced Cox to ask the Court to overrule the Civil Rights Cases and the doctrine of state action,[ap] but circumstances moved the president and attorney general to seek a legislative solution.
1963 was a time of increasing violence in the South against African-Americans, as segregationists mounted ever more dogged resistance.[aq] The Administration decided to turn from its policy of relying on individual voting rights and desegregation lawsuits accompanied by executive orders and appointments to a push for civil rights legislation. On February 28, Kennedy proposed his first civil rights bill which included "timid measures" to secure voting rights. Southern Democrats filibustered the bill in the Senate. After Governor Wallace's attempt to prevent integration of the University of Alabama by standing in the schoolhouse door on June 11, Kennedy made civil rights a moral crusade and had legislation ready to introduce in the House by June 19. A central provision was public accommodations. The president and the attorney general closely managed the bill. Cox had no role in drafting the legislation, but supported it publicly. On November 20, Cox attended the Justice Department birthday party for Robert Kennedy. During the celebration the attorney general made a long self-deprecating speech about all the problems he had "solved." Cox told Ramsey Clark that he thought it signaled Kennedy's decision to leave the department (from exhaustion and disillusionment) and predicted he would be gone by the next month. Two days later the president was assassinated in Dallas.
Deputy Attorney General Nicholas Katzenbach took over for the grief-stricken attorney general. The first request of the acting attorney general was that Cox accompany him to see the chief justice and request him to head a commission to investigate the circumstances surrounding the assassination of President Kennedy. Cox was reluctant, believing that Warren should refuse the request, because it would have adverse impact on the Court. He agreed but asked that Katzenbach not have him try to persuade the chief justice. In the end Warren declined the request, and the two Justice employees left. Within an hour the president called and requested him to meet. Warren capitulated. He said in 1969 that because of it, it became "the unhappiest year of my life."
The civil rights legislation which Kennedy was unable to see pass during his lifetime received the needed momentum from his death and the legislative skill of President Johnson. In 1964 the public accommodations bill passed as the Civil Rights Act of 1964. The obvious constitutional attack on the legislation was its constitutionality under the Fourteenth Amendment because it sought to regulate conduct which was not "state action." Cox and Assistant Attorney General and Head of the Civil Rights Division Burke Marshall, however founded the legislation on Congress's power to regulate interstate commerce. Although both John and Robert Kennedy questioned the optics of using the Commerce Clause, they did not object. Cox had no difficulty having the Court uphold the statute on that basis when he argued the cases in October.[ar]
After a landslide election victory, Johnson used his State of the Union address in January 1965 to, among other things, promise a voting rights act. It was Cox who developed the first draft. The mechanism devised by Cox was to provide for a presumption of illegality of a list of practices including literacy tests and similar devices if the state had a history of low minority voter turn-out as shown by voter statistics. In such cases the burden was shifted to the state to prove nondiscriminatory intent. This mechanism remained the heart of the legislation throughout the legislative process. Both Ramsey Clark and Nicholas Katzenbach admired the mechanism for its legal craftsmanship and statecraft (because it avoided the need to prove intent to discriminate). Before the bill was submitted to Congress Cox answered a question in Court which was used by nationally syndicated columnist Drew Pearson to embarrass Cox before the new president. On January 28, Cox urged the Supreme Court to reverse a lower court decision which held that the federal government had no power to sue a state alleging violation of the Fifteenth Amendment by discriminatory devices aimed at African-Americans. Cox argued the narrow ground that the government had such power. When the Court expressly asked Cox whether he was asking the Court to strike down the statutes, Cox answered that he was not, only that the case be remanded to the three-court panel. The Court's opinion, delivered on March 8, highlighted this exchange in such a way that some inferred that Cox passed up a golden opportunity.[as] Pearson's column stated that Cox had cost the civil rights movement two years in litigation, and for that he point blank suggested that Johnson replace Cox as solicitor general.
The Voting Rights Act of 1965 mooted that case, and Cox would go on to defend the legislation successfully before the Court, but he did so as a private attorney.[at] In the summer after Johnson's victory Cox offered his resignation in order that Johnson might pick his own Solicitor General if he chose. Although Cox dearly loved the job,[au] he overrode Katzenbach's strong objections to his decision. Johnson accepted the resignation on June 25, 1965.
Chief Justice Warren was "non-plussed and made unhappy by the news" that Cox was not reappointed. Senator Kennedy delivered a tribute from the well of the Senate. Even years later his colleagues in the Justice Department praised his service. John W. Douglas, for example, said "he was the best solicitor general that the department's ever had … ." John Seigenthaler likewise found him "great." Students of the office have agreed. Lincoln Caplan called him one of the three most respected Solicitors General in history (together with Robert H. Jackson and John W. Davis). Bruce Terris, who was Assistant Solicitor General in three administrations, said that he "was the best oral advocate I ever saw. … He had the ability to do something I had never seen anybody ever having the ability to do, and I suspect very few people ever had, and that was he had the ability to lecture the Supreme Court. " Even critic Victor Navasky wrote that Cox was "by general agreement one of the most distinguished Solicitors General in the history of the office … ." As Solicitor General Cox personally argued over 80 cases before the Court, winning 88%. A study of the eight Solicitors General between 1953 and 1982 found that Cox was the most liberal, filing liberal briefs in 77% of the cases. Supreme Court litigation was his metier, so much so that he would continue to do it in the future even (or especially) when he received no fee.
In 1965, Cox returned to Harvard Law School as a visiting professor, teaching a course in current constitutional law and a section in criminal law. He was soon named the first recipient of the Samuel Williston chair. Although he would occasionally write on labor law, his interest now seemed constitutional law and the role of law in society. Many on the left, however, saw his approach to the Constitution as narrowly legalistic, temporizing and seen from the vantage of the privileged few. A paper he presented to the Massachusetts Historical Society in 1965 was published in 1967 in a book with papers by Mark DeWolfe Howe and J.R. Wiggins called Civil Rights, the Constitution, and the Courts, consisting of papers delivered to the Massachusetts Historical Society in 1965 and published in book form in 1967. Cox's contribution, "Direct Action, Civil Disobedience and the Constitution," argued that "direct action" in violation of a "plainly valid" law (as opposed to a plainly unconstitutional law) are impermissible.[av] In the midst of anti-war, anti-Establishment, militant civil rights and other upheavals of the last 1960s Cox's proposition seemed naive, gradualist and out-of-touch. One reviewer called it "an anachronism even before its publication." Consisting only of "pious wishes," said another.[aw] The conception of Cox as the ivory tower liberal. more concerned with the sanctity of the law than the concerns those oppressed was crystallized by Victor Navasky's 1971 Kennedy Justice, which was largely based on unnamed Justice Department lawyers and two institutional civil rights attorneys of a tentative, unsympathetic Cox requiring the constant nudging of Kennedy to make "grudging" and "inch-by-inch" movements away from his initially conservative positions in civil rights and reapportionment cases.[ax]
Neither a politician nor a bureaucratic infighter, Cox never responded to public criticism. He confined himself to teaching and his outside, mostly pro bono activities. Shortly after leaving the government, he represented the plaintiff in Shapiro v. Thompson, in which he persuaded the Court to strike down a Connecticut waiting period of one year before new residents could receive AFDC benefits as an undue burden on the "right to travel." He consulted with Robert Kennedy, now Senator from New York, on labor issues, particularly the New York transit strike of 1966. Cox had been proposed by Mayor John Lindsay as a member of a panel to mediate the dispute but the transit union objected to him (and nine others) on the ground that he had no experience in transit matters. At the beginning of 1966 Cox was a member of an panel to mediate a dispute between the NCAA and the AAU over control of amateur athletics in the United States. Lindsay appointed Cox the head of a three-man fact-finding panel to investigate the background of the New York City teachers' demands. The panel's work came to nothing" the teachers struck in violation of the Taylor Law, and Cox was stuck paying $1,000 to rent the hall which the city failed to reimburse.
When it came to politics, Cox did not always side with Democrats. In 1966 he arranged a reception for Republican Lieutenant Governor Elliot Richardson at the Harvard Faculty Cub which resulted in a number of other prominent Kennedy aides from Harvard supporting his bid for state attorney general. When it came to Robert Kennedy's bid for the Democratic nomination for president in 1968, however, Cox was an early and prominent supporter.
Cox did not participate in Kennedy's primary campaign. Instead he found himself examining a real life instance of direct action against valid laws—the Columbia student uprising in April 1968. Two and a half weeks after the students of Columbia occupied the buildings which housed the college administration and the office of the president (April 23) and a week and a half after the violent police response which ousted them (April 30), Cox was called by Columbia labor law professor Michael Sovern, a member of a self-selected ad hoc committee of faculty who, filling the vacuum created by the absence of President Grayson Kirk, intervened to calm the situation, requesting Cox to head a panel to investigate the causes of the upheaval.[ay]
A month into the panel's work Cox learned that Senator Kennedy had been assassinated. He would travel to Washington to speak of his grief in front of his former colleagues at the Justice Department: "We walk down the corridors and nothing has changed, but inside our hearts there is an aching emptiness. Our leader is gone and nothing is the same," he said.
After taking evidence, Cox worked all summer and even up to the panel's deadline drafting what would become the 222-page report, published on October 5. While the student conduct was criticized, the report treated illegal or violent actions as attributable to a small minority. Instead, the greater part of the blame was laid at the feet of the authorities. The administration acted in an "authoritarian manner," and the faculty, cut out of administration, was characterized by "aloofness." As for the school's priorities, the administration "all too regularly put the students' problems at the bottom." Columbia's relations with its poor and largely minority neighbors was characterized by "indifference" and bordered on callous with findings that it harassed tenants to drive them out. The report criticizing the administration's lack of a plan to deal with the disturbances, relying instead on "evasive improvisation." The panel in general praised the ad hoc committee of faculty but concluded it had waited too long to call the police to retake one building. The "group brutality'" of the police "caused violence on a harrowing scale." Cox wrote that even though students had initiated violence or committed crimes did "not excuse or even mitigate the blame resting on the police."
Back in Cambridge, Cox assured the faculty that owing to the facts that Harvard was not located in a densely packed urban environment and that Harvard had institutionalized practices that encouraged student-faculty communication he did not believe that such an uprising would occur at Harvard. The following Spring, however, brought student unrest which would plague Harvard for the next three years. On April 9, 1969, students protesting the presence of ROTC on campus took over University Hall. That night Harvard president Nathan Pusey determined to use the police to dislodge the occupants. The next day 400 state and local police in riot gear (some having removed their badges), forcibly removed the students, beating and kicking them, injuring 41 (including the education editor of Life magazine) and arresting 191 (including a Washington Post reporter). A meeting of 1,500 students and faculty that day called for a boycott of classes. The rumor spread on campus that Cox advised the use of police, because it appeared similar to the criticism of the ad hoc committee's failure to do so in the Cox panel report. Cox avoided public statements.
Although a substantial number of the faculty organized in opposition to President Pusey's actions, Cox found himself aligned with the administration and assigned various tasks to enforce order including becoming the university's prosecutor against students before the disciplinary body called the Committee on Rights and Responsibilities. In the fall of 1969 student protests began to revolve around the Center for International Affairs for its connection to American defense interests and its co-founder (with Henry Kissinger) Robert Bowie (for whom Cox's daughter Sally worked). Pusey asked Cox to head a committee (made up of faculty with military or law enforcement backgrounds) to deal with student disturbances. Through this committee Cox became the university's troubleshooter on student unrest. Cox was thus forced to make improvised decisions on when to evacuate buildings as a result of bomb threats, how to handle students mobs and when to use the police. During the period through 1972 when disturbances gradually ceased, Cox saw one commencement interrupted by protests, one bombing of the Center for International Affairs (injuring no one), one old building burned (in which a fireman was uninjured, for which Cox and the university were sued). Cox received national attention for his role in one incident. On March 26, 1971 a "counter teach-in" was organized by conservative students to feature pro-war speaker. Anti-war demonstrators arrived to drown out the speeches. Cox took the microphone to appeal for tolerance and to note the virtues of free speech, but at the end left with the speakers through an underground passage after telling the demonstrators of the "disciplinary action that will surely follow." When he testified at the hearing[az] he admitted that it was "self-deception" to think he could quiet the crowd. He nevertheless was lauded for the attempt by conservatives. John P. Roche's nationally syndicated column, comparing the demonstrators to Nazis, called his attempt "noble." Chief Justice Warren E. Burger also told Cox's biographer that was one of the most memorable defenses of freedom of speech in "modern times."
In 1972 student unrest all but disappeared, and Cox was able to devote his outside professional attention to an investigation on behalf of a select committee of the state legislature concerning appropriate discipline of a state judge. Beyond the findings in the specific case, Cox recommended the development of a written judicial code of ethics.[ba]
Cox was at Berkeley on May 16, 1973, when Secretary of Defense Elliot Richardson, President Nixon's nominee for attorney general, called him to ask if he would consider taking the position of Special Prosecutor in the Watergate affair. Cox had woken up that morning, the day before his 61st birthday, without hearing in his right ear (a condition his doctor would tell him a few days later was permanent), which dampened his enthusiasm for the job, sensing which, perhaps, increased Richardson's willing to make concessions to obtain his consent. Richardson, for his part, was getting "desperate" according to his aide John T. Smith. It was clear that the Senate would make the appointment of a Special Prosecutor a condition of Richardson's confirmation.[bb] Richardson's staff had prepared a list of 100 candidates. Richardson did not recall how many he had contacted before Cox. Given their mutual respect,[bc] over two days of phone conversations Richardson was able to satisfy Cox's concern over independence, and Richardson reduced it to writing.
The resulting "compact" was extraordinary even under the circumstances. The scope was "all offenses arising out of the 1972 election … involving the president, the White House staff or presidential appointments." It was thus not limited to "Watergate." The assumption of responsibility for a case was left to the discretion of the Special Prosecutor, who also had sole discretion to decide "whether and to what extent he will inform or consult with the attorney general" on any matter being investigated. The White House thus lost its access to the investigation. And the Special Prosecutor was granted the right to discuss his findings and progress with the press at his discretion. Finally, Cox could be dismissed only by Richardson and only for "extraordinary improprieties"—a standard virtually impossible to meet. The importance of the selection to Richardson's nomination was highlighted by the fact that he brought Cox along to his confirmation hearing before the Senate Judiciary Committee. Democratic Whip Senator Robert Byrd asked Cox if he needed broader authority. Cox replied that he already had "the whip hand." Cox said that the only restraint the president or the Justice Department had over him was to fire him. He also vowed that he would follow the evidence even if it led "to the oval office." Richardson was confirmed.
The president publicly welcomed the selection and, consistent with his new public relations offensive, commended Richardson's "determination" to get to the bottom of the affair. Privately, Nixon seethed with anger. In his memoir he said: "If Richardson searched specifically for the man whom I least trusted, he could hardly have done better." Richardson, however, thought he had the best man for the job, because once Cox cleared the president there would be no hint that he colluded with Nixon or even that he was sympathetic. Richardson had perhaps been misled about what his assignment was (and what the president's true intentions were) when the president instructed him the night Kleindienst was dismissed to "get to the bottom of it" "no matter who it hurts." Richardson was to "stand firm" only on two issues: presidential conversations were to remain privileged and national security matters were not to be investigated. Otherwise "I don't give a Goddam what it is—Mitchell, Stans—anybody." If there were any doubt, the president insisted to Richardson: "You've got to believe I didn't know anything."
Official Washington, however, was skeptical; Cox, they thought, would be ineffective; he was "too soft—not nasty enough." 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." That Cox was insufficiently attuned to the politics of his situation was on show when he invited to his swearing in Senator Ted Kennedy, the one Democrat that Nixon loathed and feared, as well as Robert Kennedy's widow, had it take place in his old solicitor general's office and had his old boss, President Roosevelt's Solicitor General Charles Fahy, administer the oath. It convinced Nixon that Cox saw his job as to bring down the president. Nixon now regarded him as a "partisan viper." Not long afterwards, Cox offended Senate Democrats as well by revealing at a press conference a letter requesting Senator Sam Ervin to cancel or at least postpone the Senate Watergate hearings so that he could familiarize himself with the proceedings.[bd] Ervin told the press: "Professor Cox's request is extraordinarily arrogant."[be]
After he was sworn in on May 25, 1973, Cox returned to Cambridge where he recruited two professors, James Vorenberg and Philip Heymann, to join his staff. The three arrived in Washington on May 29. Cox was faced with reports that the team of federal prosecutors under Earl J. Silbert was about to resign unless given a vote of confidence. Cox appealed to their sense of professionalism without comment on how the case was handled.[bf] A bigger problem was Silbert's boss, Henry E. Petersen, a career FBI/Justice Department employee appointed assistant attorney general by Nixon, who had regular meetings with Nixon, but would only provide vague descriptions to Cox and point blank refused to turn over his memorandum of one such a meeting, claiming executive privilege on behalf of Nixon.[bg]
Cox concluded that a top priority was to hire a pre-eminent criminal trial attorney to supervise the prosecutors until the office was up and running and then try the cases after indictments. He persuaded James F. Neal, the U.S. attorney who obtained the conviction of Jimmy Hoffa in 1964 for jury tampering, now in private practice, to come aboard for several weeks to stabilize the ship. Neal would stay to the end, at the end of each promised period promising only a few more weeks, and he became Cox's number two man, picked to be the chief trial attorney. Vorenberg became the number three and spent much of the early period recruiting lawyers. Vorenberg divided the mission into five task forces: The first to sign on was Thomas F. McBride who would head up the task force on campaign contributions and would obtain the conviction of George Steinbrenner. William Merril would head up the Plumbers task force. Richard J. Davis would handle the task force investigating "dirty tricks." Joseph J. Connolly headed up the force investigating the ITT antitrust settlement. James Neal headed the largest group, the Watergate task force, which dealt with the cover up and included George Frampton, Richard Ben-Veniste and Jill Wine Volner. Henry S. Ruth became Cox's deputy and Phil Lacovara became Cox's counsel. With a view toward establishing better relations with the press, Cox designated James Doyle his spokesman.
The Special Prosecutor's office not only had to catch up with the federal prosecutors. The Senate Watergate committee was in competition for Dean's testimony, and leaks suggested they were about to get it. On June 3, published reports said that Dean would testify that he had spoken to the president about Watergate 35 times. On the next day the Deputy White House spokesman admitted that the two spoke frequently, but insisted that the discussions were in furtherance of the president's new determination to get to the bottom of the scandal. The spokesman admitted there were logs of all such conversations, but that they would not be turned over on the ground that they were covered by "executive privilege." Before Cox could litigate the issue of executive privilege and his entitlement to the documents, he had to fashion a reasonably specific subpoena that might be enforced in court. But he had no idea how the White House files were organized, so he scheduled a meeting with the president's counsel on June 6 to discuss his documents requests.
The president's new defense team was made up of one-time Democrat Leonard Garment, University of Texas constitutional law professor Charles Alan Wright and Nixon true believer J. Fred Buzhardt. Cox made three requests: the Petersen document concerning his meeting with Nixon, Petersen's memorandum to Haldeman summarizing the same meeting and the tape of the conversation between Nixon and Dean mentioned by Petersen from the same meeting. Vorenberg added a request for all logs between the president and key aides from June 1972 to May 1973. Buzhardt said that only the president could determine what he would produce. Garment and Wright argued about executive privilege, which Wright said applied not only to presidential documents but those of his aides such as Haldeman and Ehrlichman. As for the tape of the April 15 Dean meeting, Buzhardt (falsely) suggested it was not a tape of the meeting but rather the president's later dictated tape about the meeting that was referred to. No resolution was arrived at, but the president's lawyers did not reject the requests outright.
The president's legal team employed an approach that would become familiar: state an overly broad position, equivocate, delay and then abruptly make partial concessions in the face of perceived popular disapproval. Shortly after their meeting, Cox announced a sudden press conference (unrelated to the discovery dispute). Buzhardt, thinking that Cox planned to go public with the dispute over the documents, called Vorenberg. Instead of discussing the press conference Vorenberg reminded Buzhardt of the document requests. Buzhardt assured Vorenberg that a package would soon be delivered. Twenty minutes before the press conference, the package arrived containing the logs of presidential meetings and telephone conferences with key aides, including Dean, Haldeman and Ehrlichman. The press conference took place and involved (as was originally planned) only an introduction to several new attorneys. The documents, however, together with the logs of Haldeman and Ehrlichman themselves proved essential to draft subpoenas sufficiently specific to elicit document, and more crucially when their existence would later become known, the tapes.
By mid-June the office was fully functioning. Silbert's U.S. attorney's team was finally eased out on June 29, much to the chagrin of the federal prosecutors.[bh] The task force that was to show the first results was McBridge's campaign finance group. On July 6, American Airlines admitted that it made $55,000 in an illegal campaign contribution to Nixon's personal lawyer Herb Kalmbach. Within two months the Special Prosecutor would uncover illegal contributions by Ashland Oil, Gulf Oil, Goodyear Tire and Rubber, Minnesota Mining and Manufacturing, Phillisps Petroleum and Braniff Airlines. While the center of media attention was on the cover up, by January, according to a Harris survey, 81% of Americans believed "illegal corporate money-givers" were "harmful to the country."
Herb Kalmbach, especially of interest to the illegal campaign contributions task force,[bi] was scheduled to testify before the Senate Watergate Committee on July 16. Instead, Haldeman's aide Col. Alexander Butterfield was inserted as a "mystery witness." During his 30-minute testimony he revealed the secret White House taping system (which was installed in the oval office, the president's office at the Executive Office Building and at Camp David)—a voice-activated mechanism designed to capture everything spoken by or to the president. The existence of the tapes was the single piece of evidence unearthed by the Senate Watergate Committee, but it would become the pivotal one, and around it much of the remainder of the cover-up case would revolve.[bj]
The materiality of certain tapes was self-evident. Tapes of conversations testified to by John Dean would either show that Dean's account was accurate, in which case the president was complicit in obstruction of justice, or false, in which case Dean committed perjury in his testimony to the Senate. The relevance of other tapes could be inferred from the proximity of meetings to Watergate-related events. Cox believed he could maximize his chance for a favorable ruling by limiting the scope of his initial request to material unarguably important to the criminal proceedings. Once he obtained a ruling that executive privilege gave way to a compelling need in a criminal prosecution, he could ask for additional material later. So on July 18 Cox sent Buzhardt a written request for eight specific tapes.[bk] On July 23, Wright responded in writing denying the request on grounds of executive privilege and separation of powers. That evening Cox had a grand jury subpoena demanding the eight tapes and three other items[bl] served on Buzhardt who accepted on behalf of the president.
On July 26, Chief Judge John J. Sirica[bm] received a letter from Nixon himself responding to the subpoena in which he asserted that it would be as inappropriate for the court to compel him as it would for him to compel the court. He was therefore not producing the tapes. But he included a copy of the March 30 memo concerning Hunt's employment and promised to make available the Strachan political documents concerning ambassadorships. Within an hour Cox was before the grand jury, explained the response to them and they voted to request Sirica to issue an order to Nixon to show cause why there should not be prompt compliance with the subpoena. Sirica had the members individually polled and issued the order.
Sirica allowed the parties a month to brief the issue, which came for a hearing on August 22. Wright took a broad, absolutist position claiming the president was the only person who could decide what material would be turned over. He relayed Nixon's feelings on national security, saying that Nixon told him that one tape had "national security information so highly sensitive that he did not feel free to hint to me what the nature of it is" despite Wright's full national security clearance. Wright said that the president's power was so inclusive that he could terminate the Special Prosecutor's office and have all the cases dismissed. Cox, on his turn, emphasized the peculiar situation here where there "is strong reason to believe the integrity of the executive office has been corrupted" and pointed out that the president had permitted his staff to testify about the meetings covered by the tapes but refused to turn over the tapes themselves,[bn] which would be the better evidence of what transpired. As for the claim that the president could terminate his commission, Cox said (presciently in hindsight) that even if were true, then the president would have to accept the political repercussions that would follow exercising that power. After questioning Wright for about 17 minutes (and Cox only 8), the judge said he hoped to have a decision within a week.
On August 29, the court ordered the president to deliver all the material to him for review. The decision amounted to a rejection of Wright's absolutist argument. Although not a complete victory for Cox,[bo] Sirica ignored the national security argument, and the decision was widely considered as historic—the first time a court ordered a president to produce evidence since Chief Justice John Marshall in 1807 ordered President Thomas Jefferson to produce documents. The White House quickly announced that Nixon "will not comply with the order." It was unclear what that meant. Wright would only say that they were considering an appeal, but the statement "hinted that they might find some other method of sustaining the president's legal position."
The president did appeal, but to the public irritation of Wright, the Circuit Court of Appeals ordered the proceedings expedited, scheduling argument for the following week before the entire Circuit Court.[bp] At the argument on September 11 Wright again took the maximum view of executive privilege. In response to a question by Chief Judge David L. Bazelon Wright said that he could think of no circumstance that the tapes could be demanded by courts. He said, however, that the White House had made information available, waiving the privilege, but tapes constituted "the raw material of life," something essentially privileged. Wright maintained that the privilege survived even if abused, such as by the president engaging in fraud or other crime. Cox's approach, just as in the sit-in and reapportionment cases, was to avoid asserting a broad legal principle and instead show how the case was sui generis, unlikely to establish a precedent soon relied on, and one which fit easily within existing principles of administration of justice. Observers believed Cox had won. Instead, the Court's decision two days later (even before the time the court had provided for post-argument briefs) gave the parties one week to come up with a compromise.
The Circuit Court's recommendation was that the parties come to an arrangement whereby the president would submit portions of the tapes to Cox and Wright who would decide with Nixon what portions would be submitted to the grand jury. Cox announced almost immediately that he was willing to discuss the matter with the White House lawyers. The White House would only say that it was studying the matter; Wright had already returned to Texas. The Court instructed the parties to report back within one week. If no arrangement could be made, it would decide the appeal.
Nixon had lost patience with Cox and was in no mood to negotiate (even though the court's suggestion strongly implied that it would order production of the tapes if there was no settlement). While the lawyers engaged in delay, Nixon was trying to control Cox through Richardson. For three months, Alexander Haig, H.R. Haldeman's replacement as White House chief of staff, had been directing Richardson to clamp down on Cox with increasingly more explicit threats until it reached the boiling point just at this moment.[bq] Buzhardt nevertheless made an offer: he would summarize the tapes with each participant's conversations re-written in the third person. It was an unworkable scheme, but Cox decided to continue negotiations over the next several days. Cox then drafted a 6-page counter-proposal providing for transcriptions of the actual conversations together with a third-party certification that the rest of the tape was irrelevant. At the last meeting, when Nixon's lawyers showed willingness to have a third party certify transcripts, Cox gave them his proposal and then left to give them a chance to consider it. In less than an hour Buzhardt called, rejecting the proposal and ending the negotiations. The parties informed the court that they could not reach agreement.
Aside from the tapes, the Special Prosecutor's office was making substantial progress on all fronts. The Watergate task force was initially stymied in their case against John Dean. Dean's lawyer made a compelling argument that the government could not proceed against him on the basis of the information he proffered during his plea negotiations with Silbert's prosecutors. A court would require a showing that the evidence used by the government had an independent basis than that proffered by Dean. It took careful combing of the file to find a letter from one of the prosecutors to Dean's lawyer noting that Dean had failed to inform them about two specific crimes which two other witnesses disclosed. Dean's lawyer replied that the omission was an oversight. The two letters showed that there existed an independent basis to prosecute Dean. Jim Neal gave Dean until the third week of October to agree to plead to one felony count, with the obligation to become a prosecution witness, or else face indictment on the two separate incidents. The plea before Judge Sirica (known among the criminal bar as "Maximum John") would certainly require prison time, but Dean would likely receive favorable consideration for a reduced sentence if he cooperated.
The other task forces were also proceeding apace. Connolly's task force was readying perjury indictments; one involved former Attorney General Kleindienst who now admitted that in fact Nixon had ordered him to dismiss the ITT antitrust suit in consideration of ITT's campaign contributions. The dirty tricks task force of Richard Davis obtained a plea of guilty by Donald Segretti to three counts of illegal campaign activity. It was now preparing a perjury indictment against Dwight Chapin. New information suggested an illegal contribution of $100,000 cash (in $100 bills) from Howard Hughes through Charles "Bebe" Rebozo" to Nixon's campaign. Inasmuch as Cox had to recuse himself from this case,[br] he assigned it to McBride and authorized Ruth to make all decisions but asked for a prompt and diligent investigation. The Plumbers task force was considering how to trace the chain of authority in the Fielding break-in case, given their lack of a high-level cooperating witness, but they had ready perjury indictments against John Mitchell and Egil Krogh. The latter would be indicted on October 11. While most of this activity went unreported, those tapped into the network of defense attorneys and grand jury witnesses (and that included the White House) knew that the noose was being tightened around the president. One reporter told James Doyle that a "middle-level White House guy told him on September 28: "Over here they talk about how to get Cox all the time."
It was the Krogh indictment that forced Richardson to have another meeting with Cox on October 12. The break-in of Daniel Ellsberg's psychiatrist's office was still claimed by the White House to involve national security matters, and Richardson and Cox had an agreement that Cox would notify the attorney general before any indictment in that matter was filed. Richardson wanted to know why he was not notified. Cox, surprised, explained that the agreement did not involve perjury indictments (which could not betray national security secrets, since they would involve public testimony). Richardson, checking his notes of their understanding, agreed with Cox and then apologized for forgetting that provision. He then had a bizarre conversation with Cox during which he said that soon he would have to "push Cox", but that sometimes "it's better to lose your hat than your head." Perplexed, Cox returned to his office, and was in the midst of telling Doyle of the conversation, when two lawyers interrupted to say the Circuit Court of Appeals had filed their decision just after 6 p.m.
The 5-2 decision of the Court of Appeals was an utter defeat for the president,[bs] and the papers highlighted the statement that the president was not "above the law's commands." The court modified Judge Sirica's order and required Nixon's lawyers to specify the grounds of any privilege they were claiming as to particular portions of the tape, and Cox was to be furnished with the specifications. Cox was also to be given access to the material in any instance when the Court was in doubt of the relevance to the criminal proceedings. In this case, the court said, "any concern over confidentiality is minimized by the attorney general's designation of a distinguished and reflective counsel as Special Prosecutor." In short, the court required disclosure except for portions which the president could articulate a particularized need for confidentiality, and Cox was permitted to see any portion where Sirica needed guidance on relevance.
Unlike its actions following the Sirica decision, the White House remained quiet that Friday night and through the weekend following the Court of Appeals ruling. Cox had no response until he met Richardson at 6:00 p.m. on Monday, October 15. Cox thought this meeting would be a continuation of the "Byzantine" conversation (as Cox called it) from the previous Friday, but instead Richardson appeared now to be the point man on negotiations over the tapes.[bt] Richardson gave an outline of a proposal to have Senator John Stennis authenticate transcripts of relevant portions of the tapes. Cox was able to infer that Richardson had gotten orders from the White House and was concerned that if a compromise was not reached one or both would be fired. During the 75-minute meeting, Cox, asked a long list of questions, including where he would stand with respect to future demands for documents, tapes or other material. Because he had an engagement, Richardson proposed they meet again in the morning. The next day Richardson told Cox that if they did not have an agreement by Friday "the consequences will be very serious for both of us." Cox objected to the deadline, suggesting that if their talks continue they could easily get a postponement of any response due the court. Richardson could not explain why there was a deadline and instead wanted to go over the points they had agreed upon then discuss other issues, but Cox insisted that this was an inefficient way to proceed and gave him his earlier 6-page proposal. Richardson agreed to write a counter-proposal.
Cox did not hear from Richardson the rest of Tuesday or all day Wednesday. There was much disagreement in the Special Prosecutor's office whether Cox should accept the proposal at all. Much of the concern had to do with Senator Stennis, a Nixon supporter, but more importantly a frail 72-year-old who only recently had recovered from a near fatal gunshot wound in a mugging in January. Cox was worried that rejecting a deal would risk obtaining anything from the White House. James Neal cautioned that if he rejected a compromise a large part of the country might accuse him of acting like a "super-president" without any checks. Doyle had the opposite concern: if Cox accepted less than the tapes, which the court ordered turned over, he might be seen as part of the cover-up.[bu] James Neal had a suggestion to minimize the Stennis problem—have him appointed by the court as one of several special masters. In that way he could obtain assistance in a publicly regulated manner. In the midst of the internal debate word came in the afternoon of Wednesday, October 17, that Judge Sirica dismissed the suit of the Senate Watergate Committee against Nixon seeking the tapes. Sirica ruled that the court lacked subject matter jurisdiction. This left the Special Prosecutor as the only means by which the tapes could be made public. Pressure on Cox to seek the material was increased, while the White House was left with only one avenue to block and so it had added incentive to pressure Richardson to get Cox either to compromise or resign.
At 5:00 p.m. Richardson hand-delivered to Cox a draft entitled "A Proposal" which contained the Buzhardt's comments. He called Cox at 6:00 for his comments. Cox replied: "I think I should respond in writing, Elliot." That night James Neal and Dean's lawyer worked past midnight finalizing John Dean's plea agreement. At about 2:30 a.m. Neal had the lawyer review with Dean the agreement, including the provision that if any testimony he had already given proved materially false, he could be prosecuted for perjury. Neal said that when Dean agreed to the plea deal containing that proviso, he knew that Dean's version of the events was truthful and he also realilzed that "Archibald Cox was in serious trouble with the president."
On Thursday, October 18, Cox drafted his reply to Richardson. It had 11 points. Cox assured Richardson that he was "not unamenable" to a solution in which he had no direct access to the tapes. But he felt that it was unfair to depend on one individual to be responsible for verification, so he proposed Neal's idea of three "Special Masters" whose identities were disclosed from the start. He commented on the method for determining what portions would be transcribed and suggested that the tapes be subject to analysis for tampering. The comments went by messenger at mid-afternoon. Richardson around 6 p.m. brought it to the White House, where Wright had just returned from Texas (to finalize the appeal papers to the Supreme Court which were due the following day), and although he had just reviewed the "Stennis proposal," he was enthusiastically extolling its reasonableness and holding forth on how the president could convince the American people that it was the solution to the crisis. When shown the Cox counter-proposal, he was outraged that Cox had "rejected" the president's offer. Wright counseled rejection of Cox's counteroffer since he believed the president had a "50–50 chance" in the Supreme Court to win outright.[bv] Richardson, perplexed at the opposition to negotiating at all with Cox, suggested to Wright: "Charlie, why don't you call Archie and see if you can sell it to him."[bw] That night Wright called Cox and was routed to the phone in Cox's brother's home in Virginia, where Cox was having dinner and playing with his brother's children. Wright gave Cox an ultimatum with four points, the most important of which was that Cox would be given no more tapes beyond the nine that were being transcribed (a condition not in the Stennis proposal).[bx] Cox asked that Wright send the points to him in writing so that he could consider them the next day and assured him that he was not rejecting the points outright.
At 8:30 a.m. on Friday October 19, the day of Nixon's deadline for appealing to the Supreme Court (otherwise the Court of Appeals decision would become final), Cox received a letter from Wright dated the previous night. It purported to confirm Cox's "rejection" of Richardson's "very reasonable proposal." There was no mention of the four conditions. He wrote that he would telephone at 10:00 a.m. to find out if there was any reason to continue talking. Cox, who until then had publicly and privately spoken of the integrity of Wright, told his colleagues: "Very clever lies." Cox quickly wrote a note to Wright saying that the proposal needed "fleshing out" particularly in light of the conditions Wright had set out in the phone call the previous night, which Cox put in writing for the record. He, Neal and others then left for Sirica's courtroom to attend the plea hearing on John Dean. The White House, seeing only that a hearing had been scheduled, panicked, not knowing what was to take place, so no attorney was present when Ruth and Lacovara arrived to deliver the letter, and they left it with the guard. Haig quickly learned of the letter, told Richardson that Cox "rejected" the deal and summoned him to the White House. To Richardson's surprise, Haig said that it was no longer necessary to fire Cox because the president had gotten bipartisan approval for the deal, there were meetings with the two leading members of the Senate Watergate Committee scheduled, and the plan would be acceptable to both the American people and the courts.
The guilty plea by John Dean (with obligation to cooperate) that morning represented the most significant step so far in the prosecutions.[by] Yet, when Cox returned to the office it remained quiet—Wright had neither called nor responded in writing. When the courts closed there was still no sign that the president had filed a notice to appeal to the Supreme Court. At 5:23 p.m. a letter from Wright arrived, which simply again maintained the reasonableness of the original proposal. Wright closed with a statement of regret that Cox would not agree. Cox now realized that he and Richardson had been allowed to negotiate even though the president had no intention to go beyond the inadequate first proposal. On this conclusion, the lawyers in the office began copying their most important memos for safe keeping. At 7:20 Richardson phoned Cox at home and read him a letter he just received from Wright informing him the Stennis plan had been agreed to by the leadership of the Senate Watergate Committee and that Cox would be instructed to not pursue any further presidential material. A statement was to be released that night. Cox and Doyle hurried back to the office. When they obtained the statement they saw it as an attempt to sell the unilateral proposal; it claimed that the plan had the approval of Senators Sam Ervin and Howard Baker, who, the statement falsely said, were the ones who proposed Senator Stennis. Although Cox had refused to agree, Nixon planned to take the proposal to Sirica and instructed his lawyers not to seek Supreme Court review. Given that the statement was riddled with falsehoods,[bz] Cox that night dictated a press release to Doyle (the staff had gone off for the three-day weekend), and Doyle phoned it in to the wire services, also announcing there would be a press conference on Saturday, at 1:00 p.m.
Doyle was able to use his press contacts to secure the ballroom of the National Press Club for the 1:00 p.m. press conference on Saturday, October 20. It was to be broadcast live on NBC and CBS and a summary would be shown during half-time of the football game being shown on ABC. Cox that morning was quite concerned about whether he would be able to take the president on alone. He was well aware that he had no institutional support, and the apparent defection of Sam Ervin of the Senate Watergate Committee profoundly troubled him. "Spineless!" he remarked on reading of it. He was also concerned about lack of political support.[ca] Just six days before Senator George McGovern had told the ACLU, which had just taken out newspaper ads calling for Nixon's impeachment, that there was not yet support for it; in fact, there was not even enough strength in the opposition to override vetoes. As for Nixon's statement itself, influential members seemed behind it: Republican Senate minority leader Hugh Scott called it a "very wise solution." Democratic Speaker Carl Albert characterized it, noncommitally, as "interesting." Even Senate majority leader Mike Mansfield said it was a way "to avoid a constitutional confrontation." When Joseph Connolly called an aide to liberal Republican Senator Richard Schweiker, he was told that the senator "can't get out front on this." At the office, the lawyer staff assembled to discuss the matter as a group for the first time. Philip Heymann had flown in from Cambridge to lend support. They offered contradictory advice, and Cox asked them to go to their offices to write up suggestions for him. At 11:00 a.m. he met them again and gave something of a valedictory and urged them to continue working if he were fired. At 12:30, Cox, Phyllis, James Doyle and John Barker walked to the National Press Club. "He was plenty upset," said Barker.
Richardson was on the phone when Cox arrived and read to him the text of a letter he had sent to the president that day in which he said that Nixon's instructions gave him "serious difficulties" and outlined several steps that still might save the compromise. Phyllis holding his hand walked him to the stage, where they were photographed. Cox then sat down at the table and began his impromptu remarks.
Heymann thought he started out nervous, defensively saying that he was "not out to get the president …" Once he got into the details of the history and significance of the dispute over the tapes, which involved a patient explanation of criminal procedure, evidence, administrative and constitutional law, he relaxed and became the "explainer" that he always excelled at. He was self-deprecating, sincere and patient. Doyle said: "He was folksy, unpretentious, disarming. He seemed the country lawyer, talking good sense." And while he used simple terms and short sentences, he was not patronizing or supercilious. "He offered a masterful professorial performance, designed to explain the legal and constitutional confrontation in terms that struck at the core of the layman's treasured values essential to the American system." He defended established institutions and regular procedure. By contrast, the president's proposal involved deciding that a "court order would not be obeyed." In the place of evidence, which Cox sought, the president proposed providing "summaries" while the genuine, irrefutable evidence, the tapes of what actually transpired, would be available to only two or three men "all but one of them the aides to the president and men who have been associated with those who are the subject of the investigation." In describing the course of the negotiations for all information, he showed how the White House lawyers had stalled from the beginning. But he never attacked anyone, at one point taking Buzhardt off the hook; "he has behaved in dealing with me in an entirely honorable way —except that he's too damn slow." With the questions that followed, Cox spent more than an hour, at the end of which his staff handed out copies of the various proposals and correspondence that took place during the week. It was so persuasive a performance that Sarah McClendon, White House correspondent known for her sharp questions, approached Cox and said: "I want to shake your hand, you are a great American." Doyle wrote that it was "the most unusual press conference I have ever attended. The hard-bitten, cynical press corps was rooting for Archibald Cox." John Douglas said: "It was one of the most spectacular performances, one of two or three press conference ever held in this country which have had a significant effect on public opinion."
The press conference also unravelled the Nixon-Haig plan. Cox did not resign, nor was he cowed by the president's directive. Moreover, instead of exploiting Richardson's reputation for integrity to his own advantage (a key feature on which the plan was based), the president was forced to act in his own name, and Cox was able to draw Richardson to his side by defending him as honorable. So the White House decided to fire Cox. It was unable, however, to make either Richardson or his deputy William Ruckelshaus carry out the order. Each resigned in turn rather than fire Cox, although the White House later claimed it fired Ruckelshaus. Solicitor General Robert Bork (third in line at the Justice Department) in a face-to-face meeting with the president agreed to issue the order as the acting attorney general, and he also decided not to resign after so doing.[cb] As for the termination itself, Bork sent a written order to Cox by messenger that evening to Cox's Virginia home.[cc]
The White House then fatally overplayed its hand. At 8:25 p.m. press secretary Ron Ziegler announced what would become known as the "Saturday Night Massacre." He explained that Cox had been fired, but added, somewhat gratuitously (and, as it would ultimately transpire, inaccurately), "the office of the Special Prosecution Force has been abolished as of approximately 8 P.M. tonight." Haig compounded the bad publicity by publicly sealing the offices of the Special Prosecutor as well as those of Richardson and Ruckelshaus. He explained his conduct by saying: "You would turn the country into a banana republic if you allowed defiance of the president." To Judge Sirica, who watched it on television, it was the cordoning off of the Special Prosecutor's offices that looked like part of a Latin American coup. Fred Emery wrote for the Times of London that there was "a whiff of the Gestapo in the chill October air." FBI agents showed up at the Special Prosecutor's offices at 9:00 p.m. and briefly prevented deputy prosecutor Henry Ruth from entering. Those inside were told they were not permitted to remove any documents, official or personal. At a hastily arranged press conference in the library of the building, Ruth and Doyle explained that they had taken copies of major memos to a safe place the night before, but that they were concerned about the vast amount of material still in the office that had not been presented to the grand jury yet. Doyle read Cox's statement on his termination: "Whether we shall continue to be a Government of laws and not of men is now for Congress and ultimately the American people."
The actions of Nixon and his aides that night produced "results precisely the opposite to what the president and his lawyers had anticipated." Instead of simply removing Cox, "they raised a 'firestorm' of protest that permanently scarred Nixon's credibility with the public, and, most damagingly, with Congressional Republicans and Southern Democrats." Public reaction, even though it was a holiday weekend, was swift and overwhelming. About 450,000 telegrams and cables reached the White House and Congress. Mail and wires were put in bundles then sorted by state. The deluge eclipsed any previous record. Outside the White House, marchers held signs saying "Honk for Impeachment"; car horns were heard in downtown Washington day and night for two weeks. But more concerning to the White House must have been the political reaction. On Sunday John B. Anderson, Chairman of the House Republican Conference, predicted that "impeachment resolutions are going to be raining down like hailstorms." George H.W. Bush, then Chairman of the Republican National Committee, was so concerned over the electoral consequences that he visited the White House, hoping to persuade the president to rehire Richardson for damage control, perhaps as ambassador to the U.S.S.R. On Tuesday, Speaker Carl Albert began referring impeachment resolutions to the House Judiciary Committee with the consent of Gerald Ford. Nixon lawyer Leonard Garment said that the White House was paralyzed. "[H]e thought of little else except to marvel 'over the mischief we had wrought and the public relations disaster we had brought on ourselves.'"
And in the end, Nixon did not even achieve the short-term tactical benefit the maneuver was designed to afford him. On Tuesday afternoon eleven lawyers from the Special Prosecutor's force convened with Wright and Buzhardt in the courtroom of Judge Sirica, for further proceedings on the subpoenas. That weekend Sirica had already contemplated what had to be done and drafted an order to show cause why Nixon should not be held in contempt. He was thinking of a $25,000 to $50,000 a day fine until the president complied. But to everyone's amazement, Wright announced that the president was prepared to produce all the material ordered. And not long after that Leon Jaworski would be appointed Special Prosecutor, and because of Nixon's wounded public standing, he was given even more independence than Cox had been. Cox would not be part of any of this, however, for after a brief farewell meeting with his staff (whom Jaworski would keep), advising them how important it was that they continue and assuring them of Jaworski's good faith,[cd] he and Phyllis drove off in their pickup truck to their place in Brooksville, Maine.
Cox's colleague and friend Philip Heymann described the effect of that weekend from Cox's address, through the massacre and the reaction:
President Nixon asked the country to understand his firing an honest prosecutor so that he could get on with national security business. Cox spoke to the American people about the primacy of the rule of law even during a near-confrontation with the Soviet Union over the Yom Kippur war. Unfrightened, unpretentious, talking from the very depths of his convictions and loyalties to hundreds of millions of individual Americans as one citizen to another, Archie reversed a congressional retreat and found a nation following him along the path of freedom. The people and the Congress rallied to the cause of a professor who, without a hint of anger, spoke mildly about our history and principles, and who made clear that what would happen to him was not an issue. After that the executive was again bound by the laws that make men free, and Archie became a national symbol of the triumph of law.
Cox's case on the tapes did not go to the Supreme Court, but when the president tried to resist a later subpoena by Jaworski, the case made its way to the Court. On July 24, 1974, only three days after oral argument, United States Supreme Court voted by 8 to 0 to reject Nixon's claims of executive privilege and enforced the subpoena requiring the release of the tapes.[ce] Fifteen days later Nixon announced his decision to resign as president effective the next day, August 8, 1974. Many legal experts outside of the United States were shocked at how legal process, particularly one issued at the request of a subordinate official, could require the head of state to do anything. Cox wrote of one scholar who said: "It is unthinkable that the courts of any country should issue an order to its Chief of State." Cox spent much of the rest of his career writing on the unique place of the Court in the American system of government. As for this particular case, when it was all over Times legal correspondent Anthony Lewis gave chief credit for the extraordinary result to Cox:
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. [Cox said on taking 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."
When Cox first accepted the position of Special Prosecutor he had some fears that it might consume the rest of his career.[cf] Instead, it lasted only five months. Nevertheless, he achieved national celebrity from the service. Yet Cox declined to profit personally from that fame. He had turned down an offer from a large New York firm on leaving the office of the Solicitor General, and he would not entertain one now. He declined competing offers of interest to write a book about Watergate,[cg] Cox even turned down the offer to become a salary arbitrator for major league baseball. He returned to New England to teach, but arriving in the middle of the Fall 1973 semester, he would have to wait for next term. And even then, Harvard having hired a visiting professor for the one-year leave of absence he took, Cox only had one section of Administrative Law to teach in Spring 1974. In the meantime, Cox and Harvard University General Counsel Daniel M. Steiner drafted Harvard's amicus brief in support of University of Washington Law School's affirmative action program. The Court did not reach the merits, ruling that the case was moot.
Cox spent the academic year from September 1974 to Spring 1975 at the University of Cambridge as the Pitt Professor of American History and Institutions.[ch] During that year Cox and his wife were able to travel throughout the British Isles and Ireland meeting judges, lawyers and other dignitaries. Cox lectured to packed houses, including at Oxford where he delivered the Chichele Lectures at All Souls College. The Coxes also occasionally socialized with the Richardsons, Elliot having been appointed by President Ford as the Ambassador to the Court of St James's. They were even able to spend a weekend in Scotland with David Graham-Campbell, the commander of corps that Cox's brother Robert served in when he died during World War II.
When Cox returned to Harvard in the Fall of 1975 he returned to teaching and writing full-time. His interests were now almost exclusively constitutional law, but he occasionally would teach a course in labor law. Faculty members and students noticed a change in his style of teaching. Whereas once he was known as the austere, dominating law professor drilling students with the Socratic method, and even was considered a possible basis for the fictional Professor Kingsfield, he was now referred to in student evaluations as "interesting, kind, decent …" Derek Bok concluded: "He developed an affection for people."
In 1976 Cox ventured the last of his infrequent forays into national partisan politics. On January 24 Cox endorsed Mo Udall, brother of Stewart Udall whom Cox worked with on the Landrum–Griffin bill and during the Kennedy administration, for Democratic nominee for president. A statement by Cox with his picture appeared in ads in the early primary state of New Hampshire. As Udall's campaign foundered, he pushed the integrity issue in this first post-Watergate presidential campaign, and relied heavily on Cox in a television ad in New Hampshire. Udall came in second to Jimmy Carter in New Hampshire, and a distant second to Senator Henry M. Jackson in Massachusetts. Early in the campaign liberals realized that Carter was the candidate to beat, and Cox, in an unusual attempt at political stumping before a crowd of 1,000, uncharacteristically hurled an insult at Carter, which was reported in the Times: "he dismissed Carter as a candidate "boasting of a lack of association with Washington along with a cheery grin." Although ultimately Carter clinched the nomination, Udall's name was allowed to be put in nomination before a motion to nominate Carter by acclamation. Archibald Cox was chosen to move to nominate Udall, and when he did, liberals, who had been unable to find a candidate to coalesce the party around during the primary season, made their feelings known on national television: "the frustration of liberals burst through the restraints placed upon it at this convention. While the gavel sounded futilely from the podium, the Udall supporters cheered, waved placards and released clusters of blue balloons in the closest thing to a floor demonstration seen last night." Cox would reflect on this night when a judgeship decision was made three years later.
Cox's outside activities shifted from arbitration to government reform and appellate advocacy. In 1975, court reform was a top priority in Massachusetts where criminal cases had backlogged the system, which (because they required priority) resulted in even greater congestion of civil cases. Cox was appointed to a Massachusetts Bar committee to study the problem. in February 1976 Governor Michael Dukakis appointed Cox to head the 20 member Governor's Select Committee on Judicial Needs to make recommendations. In December the committee issued the Cox-drafted report, entitled "Report on the State of the Massachusetts Court." The Report's most important recommendations were a structuring of the District Courts, state assumption of the administrative costs of the courts, placing management of the court system in the hands of the chief justice of the Supreme Judicial Court, abolition of trials de novo in appeals from the District Court and tightening of the rules for remand and continuances. Despite the fact that the Governor made judicial reform along the lines of the Cox report his "top" legislative priority for 1976, and despite the fact that the proposal was supported by the newspapers of the state, and despite intense lobbying efforts by Cox himself (not only in testimony before the legislatures but also in numerous speaking events throughout the state) over the course of 1976, the legislation ultimately ran out of time in the 1977 legislative session.[ci] In the next session the bill was drastically revised, but ultimately retained the state take-over of funding and implemented some centralization and coordination.
Just as his public support for Udall was uncharacteristic, after Watergate Cox was more open to represent groups not a part of traditional institutions.[cj] But Cox's chief interest was always in Supreme Court advocacy. And he would argue two more landmark cases.
The first of the cases arose out of the 1974 amendments of the Federal Election Campaign Act of 1971. These amendments were a response to the campaign finance abuses of Nixon's Committee for the Re-Election of the President, which Cox was familiar with as Special Watergate Prosecutor.[ck] The amendments provided for financial reporting by federal campaigns, established a variety of contribution and spending limitations and provided for public funding of presidential campaigns. A variety of plaintiffs sued, claiming the regulatory scheme violated their right to free speech. In 1975 the case reached the Supreme Court, and Senators Edward Kennedy and Hugh Scott requested Cox to file an amicus brief on their behalf. Common Cause had intervened as a party in the lower court and therefore had time a right to argue before the Court, but its counsel Lloyd Cutler disagreed with the position taken by the organization (which supported the amendments) and Cox was asked to argue on its behalf. Cox's key argument was that the contribution of money, even when done to enable public discourse is not "speech" but rather "conduct." Nor was total campaign spending, even though part of it was used to enable "speech." In light of the realities of escalating campaign contributions, Congress had a right to regulate this conduct to reduce corruption and to counter public cynicism in the electoral process. Cox argued that such conduct should be subject to a lesser standard of court review than the strict scrutiny of restrictions on pure political speech. The Court's decision in the case, known as Buckley v. Valeo. was a bizarre array of separate opinions on various parts of the amendments, with only a brief per curiam decision tallying the votes on each issue.[cl] The Court rejected Cox's approach. As Justice White put it in dissent, the Court held that 'money talks" without considering the variety of ways that federal laws regulate speech in other contexts. Nevertheless, while it voided limits on campaign spending, it upheld contribution limits, financial reporting requirements and the conditions to financing of presidential campaigns. John W. Gardner, the chairman of Common Cause called it a victory for those who "worked so hard to clean up politics in this country."
The second significant case Cox participated in dealt with affirmative action. in 1976 the California Supreme Curt had rule the University of California–Davis Medical School had violated the equal protection clause of the fourteenth amendment by failing to admit Allan Bakke, a 37-year old white engineering student, who claimed that he was barred by a "racial quota." The trustees sought out Cox to argue the case in the Supreme Court, Cox who had already prepared a brief on the issue in the DeFunis case, agreed to take the case on the condition that other lawyers take primary responsibility for preparing the brief, something highly unusual for Cox who normally carefully supervised and revised anything that went to the Court under his name, but necessary because of the work involved on the Massachusetts court reform committee When the case came on to be argued, on October 12, 1977, Cox was in the midst of his heaviest schedule of lobbying for the reform bill with the legislative session over after the holidays. The crux of his argument was to separate two questions facing universities who had fewer places available than qualified candidates: 1) Which candidates are capable of benefiting from the education provided by the school? and 2) From that group what characteristics can the school employ to make up a class benefits each other, the school and the community. It is the confusing of the two questions that gives rise to the claim that a "quota" exists. Cox opened his Bakke argument by stating these questions in an elegant way that put the case at its most forceful; namely, that unless the Court permitted universities to take race into account to promote minority participation in learned professions, they would be excluded except for a very small number.[cm] The case, known as Regents of the University of California v. Bakke produced several opinions: four justices opined that taking race into account was never permissible; four, on the other hand, that it was permissible if "benign." Justice Lewis Powell, whose plurality opinion, joined in by the different groups in different parts, tried to thread the needle. While he rejected a fixed number of acceptances (a so-called "quota"), and thus affirmed Bakke's admission in this case, he also answered Cox's framing of the question in the affirmative and said that universities are entitled to take race into account as one factor among many. Assistant Attorney General Drew S. Days, III, who watched the argument felt that Cox's presence was crucial as a symbol of he "establishment" assuring the Court (and the conservative Justice Powell) that the position was not "outlandish." Lewis's approach opinion underlies the approach of most university affirmative actions policies today.[cn]
In late 1978 a new seat became available in the United States Court of Appeals for the First Circuit (the federal appellate court sitting in Boston) when Congress expanded the federal judiciary by 152 judges. Observers expected Senator Kennedy to avail himself of the tradition allowing the Senator of the president's political party to name federal judges in his state to propose Archibald Cox. In March 1979 a panel of lawyers appointed by President Carter unanimously recommended Cox as their first choice among five for the nomination. Cox was highly doubtful, however, that Carter would appoint him in light of his prominent support of Udall three years earlier, but nevertheless filled out the application and submitted to background checks. Then in June the New York Times reported that the nomination was "stalled." Some anonymous sources claimed that Attorney General Griffin B. Bell objected to the nomination on the ground that Cox at 67 was too old, noting that the ABA suggested that no one over 64 be named to the job. Another suggested that behind this rationale was antagonisms between Bell and Cox dating back to when Cox was Solicitor General and Bell was an appellate court judge in the south. Another source said that the Justice Department was holding up the appointment because Kennedy was attempting to assert undue influence as Chairman of the Senate Judiciary Committee, who had the ability to block appointments across the country. Publicly, however, all the parties insisted that the delay was nothing out of the ordinary. Within the White House Cox had his defenders who argued strongly against the "rule of 64" and even obtained an opinion that the ABA would not object to Cox's appointment. Kennedy even spoke personally to Carter, urging that the appointment would redound to the president's political benefit, but Carter told him he would not appoint Cox. When the decision was made members of Carter's own judicial selection publicly expressed their anger over the decision.[co] Carter's 1976 New York campaign manager listed the failure to appoint Cox as one of several ways in which the Administration had "behaved foolishly" simply to snub Kennedy. The following year another panel assembled by Carter asked Cox if he wished again to apply for a judgeship. Cox quickly turned down offer of interest. His colleague Stephen Breyer obtained the appointment.
His judicial ambitions over, Cox turned his energies to leading outside advocacy and policy-making groups. In 1980 Cox was elected chairman of Common Cause, the 230,000 member citizens' lobby, as John Gardner's successor. Cox wrote that "[t]he challenge was to reshape the machinery of self-government … so that every citizen knows that he or she can participate and that his or her participation counts ... ." That same year he also became the founding chairman of the Health Effects Institute, a partnership between the Environmental Protection Agency and private automobile and truck manufacturers to study the effects of emissions from motor vehicles. Cox said that the organization was designed to take the testing and scientific research concerning the health effects of this type of pollution "out of the adversarial context."
It was as head of Common Cause, however, that he was to make his final mark; his goal was to make government more transparent and responsible to the broad public rather than special interests in order to restore faith in government institutions. The very day he took office, the Abscam affair was leaked. While Cox personally deplored the leak, he immediately sent letters to congressional leaders underlining "the urgent necessity of looking into the charges to demonstrate that Congress is concerned about its honor and integrity." In July 1980 the organization instituted its first major litigation under Cox, and it was a follow-up on Buckley v. Valeo: Common Cause sued the four "independent" groups which promised to spend between $38 and $58 million for television and print advertisements in support of the election of Ronald Reagan, even though he agreed to abide by spending limits of $29.4 million as part of the agreement he made in accepting public financing. Right to work groups used the occasion to criticize Cox for attacking voluntary independent expenditures while ignoring union efforts on behalf of candidates. The D.C. District Court dismissed the case on the ground that any restrictions on "independent" spending amounted to an unconstitutional abridgment of freedom of speech. The Supreme Court, affirmed the decision by an equally divided court (Justice O'Connor not participating). That case would be Cox's last argument before the Supreme Court.[cp]
Conservatives' complaints against Common Cause became more general and more numerous from that summer to fall when the organization celebrated its tenth anniversary. Henry Fairlie published in the June issue of Harper's a broad (but largely unspecific) complaint against the organization for representing all that was wrong with American politics: "The underlying thrust of Common Cause reforms has been to weaken the political role of the very associations that give power to the otherwise powerless, and in the name of this misguided notion of participatory democracy Common Cause increases the opportunities of the already influential to extend their privileges." Tom Bethell (Washington editor of Harper's) wrote in the Times " The concept of 'reform' itself is beginning to be viewed with skepticism. Writers are more and more inclined to put the word inside quotation marks. In Washington these days, one often hears references to 'the unintended consequences of reform. Cox responded in an address on September 6, 1980: It was not reforms that were the problem, but rather incomplete implementation of them. The flood of money into national political campaigns was not the result of campaign finance reform, but of inadequate regulation of "independent" committees that informally coordinated with the campaigns. "[D]amaging and dangerous as the rising rate of influence of political action committee contributions is … the present law is clearly preferable to the old pre-Watergate conditions."
Cox continued his campaign against large campaign contributions, but he was largely unsuccessful in effecting any further change. He also supported efforts to increase voter participation by testifying in favor of bilingual ballots
The Reagan administration posed an entirely different challenge for Cox, for he believed that it attempted to bring about radical politicization of the judiciary. The Solicitor General's office, for example, vetted its decisions for political outcomes (for the first time in modern history according to Cox). More overtly, Attorney General William French Smith called on the Court to "follow the election returns." Said in conjunction with a conservative push to strip the Court of jurisdiction over issues they disagreed with, the call was widely interpreted as a blatant interference with the judicial function. Together with the ACLU, the ABA and others, Cox on behalf of Common Cause pushed back against Smith's "broadside attack upon the independence of our judiciary" and "radical and unprincipled attempts to legislatively overturn Supreme Court decisions." He sent a report to the Senate on Edwin Meese's "lack of ethical sensitivity" and "blindness to abuse of position" in an effort to bar his confirmation as attorney general. Cox tried to preserve the integrity of the independent counsel's investigation into the Iran–Contra affair by urging the Senate Intelligence Committee to resist President Reagan's pressure on it to grant immunity hastily on executive officials.
Cox's final two high-profile positions involved investigations of Democrats. He urged the House ethics committee to allow the independent counsel to determine the scope of his investigation of Speaker Jim Wright. He also recommended that the Senate Intelligence Committee retain outside counsel to investigate the four Democratic and one Republican Senators known at the Keating Five for their role in the Lincoln Savings and Loan scandal and then severely criticized the lenient treatment they ultimately received, prompting personal criticism from prominent Democrats. One high-profile cause he would not participate in, however, was the attempt to reject the nomination of Robert Bork to the Supreme Court. Cox recused himself and refused to make any comment about the man who had fired him 15 years before, even at the personal request of Senator Kennedy.
After twelve years at the helm, Cox, at 79, chose to retire from the chairmanship of Common Cause as of February 1992.
Having taught for two years beyond Harvard's mandatory retirement age, Cox was finally forced to retire from the Harvard Law School faculty at the end of the 1983-84 school year. Cox wryly said: "I won't be allowed to teach anymore. I'm presumed to be senile." He then accepted a teaching position at Boston University School of Law. Boston University Law School made up a specific retirement policy for Cox; according to Dean Ronald A. Cass: "He teaches as long as he wants to."
Cox's life with Phyllis and his children was almost entirely separate from his professional career. Phyllis herself had been a promising student at Smith; having spent her junior year in Paris, she planned on teaching French. She was to attend graduate school at the University of Vermont, but in 1935, her parents' divorce and the publicized death of her brother in the yachting accident left her mother distraught, and Phyllis promised to postpone school to live with her mother on their farm in Weyland, Massachusetts. After their marriage Phyllis accommodated her life to Cox's career and their children, Sarah ("Sally") (b. 1939), Archibald, Jr. (b. 1940) and Phyllis (b. 1945). But the storied background of her ancestors on both sides in legal academics helped Cox at crucial points in his career. When they lived in Virginia during the war, they were neighbors to Phyllis's Smith classmate, whom she knew there as Jane Dahlman. Through her, Cox was able to commute to and from Washington with her husband Harold Ickes, who gave Cox an insider's view of federal politics and gave him the practical advice that he should develop his own network rather than remain in Washington to become a career bureaucrat.
When the Coxes returned to Massachusetts, they were able to live on the family farm in Wayland, Phyllis's mother having remarried and moved to California and her father having provided her ownership of the farm. This gave Cox the freedom to choose to teach without so much worry for money. The Wayland farm played a part in Cox's offer from Harvard Law School. Professor Austin Scott had been a long time friend of the Ames family and had lunch on Sundays with them in Wayland. Cox got to know him through Phyllis. After they returned from Washington, Scott continued having Sunday lunch there, and it was there that Scott first brought up the idea to Cox of teaching at Harvard. Cox himself also suspected that Phyllis's grandfather being famous law school dean James Barr Ames had something to do with the offer.
After he became a faculty member, Cox kept his professional life and family life separate. Cox often seemed unapproachable to colleagues, never had particularly close friends on the faculty and he never entertained, even later when he was Solicitor General or Special Prosecutor. The Wayland farm was a real working farm under Phyllis's guidance, and even Cox himself had chores including pitching hay or digging squash. They bought a summer farm in Maine where Phyllis would take the children and Archie would spend weekends during the summer.
Cox took an interest local Wayland affairs. In 1950 he was elected to the Wayland Board of Assessors. In 1958 Cox was elected to the Wayland Board of Selectmen. Having lost the previous election, this one was largely the result of Kennedy's warm welcome to Cox during a Senate campaign stop in Wayland. Cox outpolled his incumbent opponent nearly 3–1.
Cox spent much time away lecturing, at arbitrations and various government tasks. Often Archie and Phyllis would be apart, so that the children would not be uprooted, and they came to accept it. But Cox's letters throughout his life always showed a deep affection for his wife.
Cox died at his home in Brooksville, Maine, of natural causes. (By a quirk of fate, Sam Dash, chief counsel to the Senate Select Committee to Investigate Campaign Practices during the Watergate scandal, died the same day.) Phyllis and Archie had been married for 67 years. At the time of his death his daughter Sarah (in business management) lived in Brooksville, Archibald, Jr. (who broke with family tradition and entered finance rather than law) in Markleville, Indiana and Phyllis (who became a lawyer) in Denver. At the time he had several grandchildren and great grandchildren. Phyllis died on February 6, 2007.
During his career at Harvard, Professor Cox was honored with the following chaired or university professorships:
Throughout his life Cox was the recipient of numerous honorary degrees, including: M.A.: Sidney Sussex College, University Cambridge, England 1974; L.H.D.: Hahnemann Medical College, Philadelphia, 1980; LL.D: Loyola University Chicago, 1964, University of Cincinnati, 1967, University of Denver, 1974, Amherst College, 1974, Rutgers, 1974, Harvard University, 1975, Michigan State, 1976, Wheaton College, 1977, Northeastern University, 1978, Clark, 1980, University of Massachusetts Amherst, 1981, University of Notre Dame, 1983, University of Illinois, 1985, Claremont Graduate School, 1987, Colby College, 1988.
Cox was elected member to or granted recognition by the following societies:
In 1935 Cox won the Sears Prize for his performance during first year in law school.
After he resigned his faculty position at Harvard and until he returned in 1965, Cox served as a member of Harvard's Board of Overseers.
In 1991 the faculty of Harvard Law School made Cox an honorary member of the Order of the Coif, an historic group that recognizes significant contributions to the legal profession.
On January 8, 2001, Cox was presented with the Presidential Citizens Medal by President Bill Clinton, saying: "Archibald Cox, every American, whether he or she knows your name or not, owes you a profound debt of thanks for a lifetime of your service to your country and its Constitution."
Magazine pieces, addresses, broadcasts:
This departure from traditional union distrust of outside interference appears to be a significant advance in union democracy.Syndicated labor columnist Victor Riesel lauded the innovation as a means by which union members might be protected from union leadership without government interference. The United Auto Workers established a similar panel in 1957.
"This case … presents a single, vital question: whether a state university, which is forced by limited resources to select a relatively small number of students from a much larger number of well-qualified applicants, is free, voluntarily, to take into account the fact that a qualified applicant is black, Chicano, Asian, or native American, in order to increase the number of qualified members of those minority groups trained for the educated professions and participating in them, professions from which minorities were long excluded because of generations of pervasive racial discrimination."
"This case … presents a single, vital question: whether a state university, which is forced by limited resources to select a relatively small number of students from a much larger number of well-qualified applicants, is free, voluntarily, to take into account the fact that a qualified applicant is black, Chicano, Asian, or native American, in order to increase the number of qualified members of those minority groups trained for the educated professions and participating in them, professions from which minorities were long excluded because of generations of pervasive racial discrimination."
J. Lee Rankin
|Solicitor General of the United States
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