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Archie Cox: Public Servant, Private Man

Archibald (Archie) Cox, the Harvard law professor who earned his fame as the Special Prosecutor in the Watergate scandal, was a complex man who was drawn to public service, yet remained in all ways a very private person. That is the picture of Cox which emerges in the outstanding new biography of his life, Archibald Cox: Conscience of a Nation, (Addison-Wesley, 439 pp.) authored by Professor Ken Gormley.

Gormley, a native Pittsburgher and former student of Cox's at the Harvard School of Law, spent seven years amassing an impressive array of material on Cox which he presents in a very easy-to-read, direct style. He pursued this labor of love while still holding down his various "day jobs" in Pittsburgh, first as a practicing attorney, then later as a full-time faculty member at the University of Pittsburgh School of Law and now currently as a tenured Professor at Duquesne University School of Law.

Gormley presents young Archie as a child born and raised in a comfortable home, the son of a successful lawyer, who was nurtured by devoted parents in the classic New England tradition whereby individual achievement and public service were encouraged, but any desire for excessive personal attention or expression of emotion were to be discouraged.

Interestingly, this man who would later win national acclaim for his intellect was only slightly better than an ordinary student from primary school up through his undergraduate days. It was not until law school at Harvard that Cox blossomed academically and caught the eye of various faculty members including one Felix Frankfurter.

After spending the early years of his career first as a law clerk for the legendary Judge Learned Hand, a position he earned on the strength of a Frankfurter recommendation, and then a brief stint at the Boston firm of Ropes & Gray where he did labor work, Cox accepted a full-time faculty position at the Harvard School of Law shortly after the end of World War II. In large part, Cox was attracted to teaching by his respect for the law as an institution, a respect so deep-rooted in Cox that it would later dominate his approach to a variety of legal conflicts in which he became involved, Watergate included.

Over the next decade at Harvard, Cox developed a national reputation as a pre-eminent scholar of labor law. Despite his academic success, however, Cox always had a desire for public service, something which Gormley neatly traces all the way back to Cox's great grandfather, William Evarts, a renowned Civil War-era lawyer who defended President Andrew Johnson in his impeachment proceedings before Congress.

This yearning for public service had earlier caused Cox to accept a series of mid-level government positions in the Roosevelt and Truman administrations following his clerkship with Judge Hand, and it later led him to become a trusted advisor for a young Senator from Massachusetts, Jack Kennedy.

In Kennedy's 1960 presidential campaign, Cox organized and headed up a cadre of academicians who served as advisors to Kennedy on a variety of subjects. As a measure of his political naivete, a characteristic Cox unwittingly or purposely demonstrated throughout his career, poor Archie never understood why the very thorough and analytic position papers he drafted for the campaign were regularly discarded by the candidate in favor of more simple and direct prose which played better with the public.

From the early 1960s through the early 1970s, Cox found himself "center stage" in two of the major events which both defined and fueled a decade of unprecedented social and political change in America, the civil rights movement and the Watergate matter. His involvement in Watergate is well-known to the public, but what is less well-known is the central role Cox played in shaping the expansion of the civil rights when he served as Solicitor General during the Kennedy Administration.

As Solicitor General, Cox was the federal government's chief appellate lawyer in front of the U.S. Supreme Court. It was in that role that Cox found himself at odds with the President's brother, and his immediate superior, Attorney General Robert F. Kennedy. As Gormley neatly reveals through Justice Department memos and other research, Bobby Kennedy wanted to drastically stretch constitutional protections in a series of public accommodation and voting rights cases, whereas Cox, although sympathetic to the injustices visited upon minorities, was concerned that Kennedy's preferred position so expanded established precedent that it could do permanent harm to the Court as an institution. This was an example of Cox's old allegiance to the law as an institution clashing with Kennedy's quest for reshaping public policy. Cox ultimately presented the Administration's arguments in a narrow yet balanced fashion that generally resulted in advancing Kennedy's agenda without seriously undermining the principle of stare decisis.

As one might expect, the bulk of Gormley's work is devoted to Cox's involvement in the Watergate case. While the book covers Cox's entire role as Special Prosecutor, Gormley's most enduring contribution to Watergate history is his behind-the-scenes look at the negotiations between Cox and White House lawyers over release of the tape recordings of President Nixon's oval office conversations. Not only does Gormley's work shed new light on the substance of those negotiations, but it once again reveals much about Cox's respect for, and deference to, the law as an institution. Just as he was uncomfortable with the idea of aggressively pushing the limits of constitutional protections in the civil rights cases as Solicitor General, Cox was not anxious to test the boundaries of executive privilege in a legal showdown with a sitting President. To his credit, however, when the White House's final proposal on release of the tapes was one which Cox deemed to be so unsatisfactory as to threaten the very integrity of the investigation ---- the proposal essentially called for summaries of the tapes to be prepared by the White House and then compared to the actual tapes by Senator John Stennis of Mississippi, a Nixon supporter with a history of deferring to claims of executive privilege ---- he rejected it and decided to seek the legal confrontation he had hoped to avoid. This rejection of the White House's "compromise," which was announced during a Saturday afternoon news conference broadcasted live throughout the country, was likely the most profound decision of Cox's career. It was a public repudiation which President Nixon could not tolerate, and it led to the so-called "Saturday Night Massacre" a few hours later when Cox was fired by Nixon and Attorney General Elliott Richardson resigned rather fire Cox himself.

An interesting side bar to the negotiations over the tapes is Gormley's depiction of the personal relationship between Cox and Richardson, something which reveals much about Cox as an individual. Because of their respective positions, Cox as Special Prosecutor and Richardson as Attorney General, the two men were putative adversaries throughout much of the Watergate investigation. Nevertheless, as Gormley makes clear, there was a degree of trust and admiration between them that was unique as compared to Cox's relationship with any of the other Watergate players. Richardson, like Cox, was a New Englander and a Harvard man, and indeed he had been a student of Cox's at the law school. As such, the reader is never quite sure whether Cox liked Richardson because he trusted him, or trusted him because he liked him. To the extent it was the latter, Cox appears as the classic New Englander who feels most comfortable "in his own element."

Following the "Saturday Night Massacre," Cox returned to the comfort of the Harvard faculty where he remains to this day, and it is in this final phase of the book that Gormley brings the Cox character full circle. During his pre-Watergate decades at Harvard, Cox, though recognized as an outstanding scholar, was regarded by many of his students, and even some of his colleagues, as aloof and something of a "stuffed shirt." In his post-Watergate years at Harvard, however, a warmer and more human Cox emerges. The reader is left to wonder if the explanation for that transformation perhaps lies in one of the amusing anecdotes Gormley relates concerning Cox's public persona.

It seems that after the aforesaid Saturday press conference, the one in which he refused to accept President Nixon's compromise on the tapes, Cox was walking back to his office and one of his traveling companions ducked inside a street tavern to buy a six-pack of beer. As Cox waited outside, a few of the rough-hewn individuals on the bar stools inside looked outside and upon recognizing the distinguished gentleman in the flat-top as the person who had just stared-down the President of the United States on national television, they rushed outside to offer their hearty handshakes. Gormley describes other Cox encounters with "common folk" in the weeks and months following Watergate where he was routinely approached and, literally or figuratively, slapped on the back and praised for his work. Indeed, to the average citizen Archie Cox was a folk hero who, through his unflinching pursuit of the truth all the way to the White House, had restored much of the faith in the American system that had been shattered by the very crime he was investigating.

Cox was used to receiving accolades in academic circles, but such demonstrations of approval and kinship from every-day Americans following Watergate was something he never experienced before. Viewed from that perspective, one cannot help but think that once Cox realized that "New England Archie" could be well-liked by the proverbial man-in-the-street, he tried to return the affection in-kind by being more "connected" on a personal level with his students and colleagues. If this interpretation is correct, it suggests that Cox's legendary New England reserve, stiff-upper-lip, and penchant for privacy perhaps had been mistakenly attributed to aloofness or insensitivity when in truth it may have simply been the result of some insecurities about whether he "fit in" with regular folks.

Thus, Cox ultimately is seen as an instinctively private man who becomes a little less so as a result of the American public's showering him with displays of gratitude for his distinguished service during a time of national crisis. It is a transformation which the reader suspects that even Professor Cox himself finds welcome.

In the end, the most redeeming feature of Gormley's exhaustive work, and what makes it such interesting reading for lawyers in particular, is the "inside" look it provides at how an attorney of uncompromising integrity balanced a myriad of conflicting legal, social and political considerations while navigating his way through the civil rights debate of the early 1960's and the Watergate scandal of the early 1970's, the two events which marked the beginning and the end of a decade of fundamental change in the nation's history.

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