Archibald Cox
Archibald Cox Jr. (May 17, 1912 – May 29, 2004) was an American legal scholar who served as U.S. Solicitor General under President John F. Kennedy and as a special prosecutor during the Watergate scandal. During his career, he was a pioneering expert on labor law and was 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.[2]
Archibald Cox
Henry Ruth Jr.
Newbold Morris (1953)
May 17, 1912
Plainfield, New Jersey, U.S.
May 29, 2004 (aged 92)
Brooksville, Maine, U.S.
3
Cox was Senator John F. Kennedy's labor advisor and in 1961, President Kennedy appointed him solicitor general, an office he held for four and a half years. Cox became famous when, under mounting pressure and charges of corruption against persons closely associated with Richard Nixon, Attorney General nominee Elliot Richardson appointed him as Special Prosecutor to oversee the federal criminal investigation into the Watergate burglary and other related crimes that became popularly known as the Watergate scandal. 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 firing produced a public relations disaster for Nixon and set in motion impeachment proceedings which ended with Nixon stepping down from the presidency.
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, Cox's 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. Cox was elected to the Common Cause National Governing Board in 1976 and 1997. In addition, he argued two important Supreme Court cases, winning both in part: 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).
Early life, education and private practice[edit]
Family and ancestors[edit]
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[4]) 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.[5] His most prominent achievement was securing the red cross as the trademark of Johnson & Johnson.[6] 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.[7] He also served as a member of the New Jersey Rapid Transit Commission.[4]
After Watergate[edit]
Teaching again[edit]
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.[ar] During that year Cox and his wife were able to travel throughout Britain 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.[230]
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,[231] he was now referred to in student evaluations as "interesting, kind, decent." Derek Bok concluded: "He developed an affection for people."[232]
Judicial reform[edit]
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.[233] 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."[234] 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.[235] 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.[as] In the next session the bill was drastically revised,[239] but ultimately retained the state take-over of funding and implemented some centralization and coordination.[240]
Supreme Court advocate[edit]
Just as his public support for Udall was uncharacteristic, after Watergate Cox was more open to represent groups not a part of traditional institutions.[at] 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[243] 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.[au] 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.[245]
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.[246] 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.[av] 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.[248] Nevertheless, while it voided limits on campaign spending, it upheld contribution limits, financial reporting requirements and the conditions to financing of presidential campaigns.[249] 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."[250]
The second significant case Cox participated in dealt with affirmative action. In 1976 the California Supreme Court had ruled that 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[251] 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.[252]
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.[aw] The case, known as Regents of the University of California v. Bakke[254] 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.[255] Assistant Attorney General Drew S. Days, III, who watched the argument felt that Cox's presence was crucial as a symbol of the "establishment" assuring the Court (and the conservative Justice Powell) that the position was not "outlandish."[84] Powell's approach opinion underlies the approach of most university affirmative actions policies today.[ax]
Judicial politics[edit]
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.[257] In March 1979 a panel of lawyers appointed by President Carter unanimously recommended Cox as their first choice among five for the nomination.[258] 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.[259] Then in June the New York Times reported that the nomination was "stalled." Some anonymous sources claimed that Attorney General Griffin 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.[260]
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.[ay] 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.[262] 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.[263]
Common Cause[edit]
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 ... ."[264] 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."[265]
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."[209] 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 that 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.[266] Right to work groups used the occasion to criticize Cox for attacking voluntary independent expenditures while ignoring union efforts on behalf of candidates.[267] 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).[268] That case would be Cox's last argument before the Supreme Court.[az]
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."[270] 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.[271] 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."[272]
Cox continued his campaign against large campaign contributions,[273][274] 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[275]
After twelve years at the helm, Cox, at 79, chose to retire from the chairmanship of Common Cause as of February 1992.[276]
Retirement[edit]
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,[277] which arranged a specific retirement policy for Cox; according to Dean Ronald A. Cass: "He teaches as long as he wants to."[278]
Death[edit]
Cox died at his home in Brooksville, Maine, of natural causes on May 29, 2004. He and his wife, Phyllis, had been married for 67 years; the couple had two daughters and a son.[279] Phyllis died on February 6, 2007.[280]