Archibald Cox

Archibald Cox
31st United States Solicitor General
In office January 1961 – July 1965
President	John F. Kennedy Lyndon B. Johnson
Preceded by	J. Lee Rankin
Succeeded by	Thurgood Marshall
Personal details
Born	Archibald Cox, Jr. May 17, 1912 (1912-05-17) Plainfield, New Jersey, U.S.
Died	May 29, 2004 (2004-05-30) (aged 92) Brooksville, Maine, U.S.
Political party	Democratic
Alma mater	Harvard College (B.A., 1934) Harvard Law School (J.D., 1937)

Archibald Cox, Jr. (May 17, 1912 – May 29, 2004) was an American lawyer and law professor who served as U.S. Solicitor General under President John F. Kennedy and later as a special prosecutor during the Watergate scandal. During his career, he was a pioneering expert on labor law and also an authority on constitutional law. The Journal of Legal Studies has identified Cox as one of the most cited legal scholars of the 20th century.

Early life and law career

Cox was the son of Archibald and Frances Perkins Cox. His mother was the sister of Maxwell Perkins, an editor at the publishing house of Charles Scribner's Sons. A native of Plainfield, New Jersey, Cox attended the Wardlaw School, and St. Paul's School. He graduated from Harvard College with an A.B. in government, where he was a member of the Delphic Club in 1934 and from Harvard Law School in 1937 where he was a member of Phi Delta Phi legal fraternity. He was a clerk for U.S. Judge Learned Hand of the U.S. Court of Appeals for the Second Circuit. After his clerkship, he joined the Boston law firm of Ropes, Gray, Best, Coolidge and Rugg, now known as Ropes & Gray. During World War II, he was appointed to the National Defense Board, and then to the Office of the Solicitor General.

After the end of World War II, Cox joined the faculty of Harvard University, where he taught courses in torts and in administrative, constitutional, and labor law. He was elected a Fellow of the American Academy of Arts and Sciences in 1955. During the 1950s, he became an informal adviser and speech-writer for John F. Kennedy, who was then a U.S. senator from Massachusetts. Cox assisted Kennedy's campaign for President in 1960.

Solicitor General of the United States

In 1961, Cox joined the Kennedy administration as Solicitor General. At a time when civil rights protesters were routinely chased with dogs and clubbed, Cox often appeared before the Supreme Court in support of their cause. Among the cases he was involved with were Baker v. Carr, which set the constitutional standards for reapportionment; Heart of Atlanta Motel v. United States, which set a precedent by recognizing the Constitution's authorization for federal laws requiring desegregation of public accommodations for African-Americans; and South Carolina v. Katzenbach, which upheld the Voting Rights Act.

In 1965, Cox returned to Harvard Law School under Dean Erwin Griswold, and was succeeded as Solicitor General by Thurgood Marshall. Upon Marshall's appointment to the U.S. Supreme Court, Griswold became U.S. Solicitor General.

Cox remained a highly sought after negotiator and mediator. He was chosen by the New York City school system to help settle a teacher strike in 1967, and by Columbia University to investigate riots on its campus in 1968. He served as a special investigator for the Massachusetts state legislature in 1972.

Watergate special prosecutor

Main article: Watergate scandal

On May 19, 1973, Cox took a leave of absence from Harvard Law School to accept appointment as the first Watergate special prosecutor. Cox's appointment was a key condition set by the leadership of the U.S. Senate for the confirmation of Elliot Richardson as the new attorney general of the United States, succeeding Richard G. Kleindienst, who had resigned during the spring of 1973, as a result of the Watergate scandal. That summer, Cox learned with the rest of America about the secret taping system installed in the White House on orders from President Richard M. Nixon. During the next few months, Cox, the United States Senate Watergate Committee, and U.S. District Judge John J. Sirica struggled with the Nixon Administration over whether Nixon could be compelled to yield those tapes in response to a grand jury subpoena. When Sirica ordered Nixon to comply with the committee's and Cox's demands, the President offered Cox a compromise: instead of producing the tapes, he would allow the Senator John Stennis (a Democrat from Mississippi) to listen to the tapes, with the help of a transcript prepared for him by the White House, and Stennis would then prepare summaries of the tapes' contents. Cox rejected this compromise on Friday, October 19, 1973. On Saturday, October 20, 1973, Cox held a press conference to explain his decision.

That evening, in an event dubbed the Saturday Night Massacre by journalists, President Nixon ordered Attorney General Elliot Richardson to dismiss Cox. Rather than comply with this order, Attorney General Richardson resigned, leaving his second-in-command, Deputy Attorney General William Ruckelshaus in charge of the Justice Department. Ruckelshaus likewise refused to dismiss Cox, and he, too, resigned. These resignations left Solicitor General Robert Bork as the highest-ranking member of the Justice Department; insisting that he believed the decision unwise but also that somebody had to obey the president's orders, Bork dismissed Cox. Bork also considered submitting his resignation, but Richardson and Ruckelshaus dissuaded him from resigning, arguing that Bork had to remain in office to ensure continuity of the administration of the Justice Department. Upon being dismissed, Cox stated, "whether ours shall be a government of laws and not of men is now for Congress and ultimately the American people to decide." His successor as special prosecutor was Leon Jaworski, named by Bork.

The dismissal of Cox suggested the use of independent counsel, prosecutors specifically appointed to investigate official misconduct. Ultimately, Congress enacted a law to provide for a procedure appointing independent counsels, a statute that the U.S. Supreme Court upheld in 1986. This statute, which had an expiration date inserted on its original enactment, expired without renewal.

Ultimately, on August 8, 1974, after the U.S. Supreme Court voted by 8 to 0 to reject Nixon's claims of executive privilege and release the tapes (with then Associate Justice William H. Rehnquist recusing himself because, as an assistant attorney general during Nixon's first term, he had taken part in internal executive-branch discussions of the scope of executive privilege), Nixon announced his decision to resign as President.

Post-Watergate career

After Nixon's resignation, Cox became chairman of Common Cause, a major public-interest advocacy organization. He also became the founding chairman of the Health Effects Institute.

Cox also returned to Harvard Law School, where he taught constitutional law and a seminar on the First Amendment for many years. Before he had gone to Washington in 1973, he had a reputation as a tough and sometimes harsh teacher, but after his return, he had a reputation as a humorous, considerate, and gentle teacher who won the admiration and affectionate regard of his students. After he retired from Harvard, he received a special appointment to the faculty of Boston University School of Law. In 1974 he spent a year at the University of Cambridge as the Pitt Professor of American History and Institutions.

Cox also continued his career as an expert appellate advocate. In 1976, Cox argued Buckley v. Valeo before the Supreme Court; at issue in this case was the constitutionality of post-Watergate legislation establishing public financing for presidential election campaigns. The Court upheld most of the provisions of the campaign finance law, giving Cox a significant victory. During 1977 and 1978, Cox also argued the case of Regents of the University of California v. Bakke before the Court, defending the University of California at Davis medical school's affirmative action system of admissions against constitutional challenge. The Justices divided, with four voting to end the system as invalid under the Civil Rights Act of 1964 without any need to reference the constitutional issue, and four voting to uphold affirmative action as constitutional; Justice Lewis Powell cast the deciding vote, referencing the constitutional issue and holding that in some cases race could be deemed a valid factor in admissions to institutions of higher education.

In 1979, when a vacancy opened on the U.S. Court of Appeals for the First Circuit (which includes Cox's home state of Massachusetts), Senator Edward M. Kennedy proposed Cox for the vacancy. This proposal from the senior senator of the state most affected by the choice of judge ordinarily would have won Cox the appointment, but the administration of President Jimmy Carter resisted the choice since Cox had not supported Carter for President, and ultimately Cox was not appointed to the vacancy.

Among Professor Cox's many honors was his being made, in 1991, an honorary member of the Order of the Coif. Professor Cox also received the Paul Douglas Ethics in Government Award and the Thomas "Tip" O'Neill Citizenship Award. In 1997, Cox was the subject of a biography entitled Archibald Cox: Conscience of a Nation by Ken Gormley. The book focuses on Cox's long and distinguished career as a public servant.

On January 8, 2001, Cox was presented with the Presidential Citizens Medal by President Bill Clinton.

Cox's many books include The Warren Court: Constitutional Decisionmaking as an Instrument of Reform (Harvard University Press, 1969); The Role of the Supreme Court in American Government (Oxford University Press, 1976), Freedom of Expression (Harvard University Press, 1982), and The Court and the Constitution (Houghton Mifflin, 1987). He also wrote many leading law review articles and was co-editor of the leading casebook on labor law.

Death and legacy

Cox died at his home in Brooksville, Maine, of natural causes. Sam Dash, chief counsel to the Senate Select Committee to Investigate Campaign Practices during the Watergate scandal, died the same day. His wife died in 2007.

The New York Times wrote, "a gaunt 6-footer who wore three-piece suits, Mr. Cox was often described as 'ramrod straight,' not only because of his bearing but also because of his personality."

Cox was the great-grandson of William M. Evarts, who defended President Andrew Johnson during his impeachment hearing and became Secretary of State in Rutherford B. Hayes' administration. He was also a direct descendant of Roger Sherman, a Connecticut signer of the Declaration of Independence.

Bibliography

A partial list of Cox's books:

• The Warren Court: Constitutional Decision as an Instrument of Reform (1968)
• Freedom of Expression (1981) ISBN 0-7351-0236-8
• Law and the National Labor Policy (1983) ISBN 0-313-23794-8
• The Role of the Supreme Court in American Government (1976) ISBN 0-19-827411-4
• The Court and the Constitution (1987) ISBN 0-395-48071-X

Further reading

• "Cox and Nixon" Time. October 29, 1973.
• Gormley, Ken. Archibald Cox: The Conscience of a Nation New York: Perseus Books, 1999. ISBN 0-7382-0147-2
• "Archibald Cox, 92, Is Dead; Helped Prosecute Watergate", The New York Times, May 30, 2004

External links

• Archibald Cox Oral History, audio and transcripts from 2000 interview, Columbia University Libraries Oral History Research Office
• "Profile: Archibald Cox" from a Department of Justice website
• Bloomberg News story on Cox and Samuel Dash
• Find-A-Grave profile for Archibald Cox
• Sherman Genealogy Including Families of Essex, Suffolk and Norfolk, England By Thomas Townsend Sherman
• President Clinton Awards the Presidential Citizens Medals – Monday, January 8, 2001

Legal offices
Preceded by J. Lee Rankin	Solicitor General 1961–1965	Succeeded by Thurgood Marshall