Archibald "Archie" Cox Jr. (May 17, 1912 – May 29, 2004) was an
American lawyer and law professor who served as U.S. Solicitor General
John F. Kennedy
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.
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, 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.
1 Early life, education and private practice
1.1 Family and ancestors
1.2.2 Law School
1.3 Private practice and wartime service
1.3.1 Solicitor in the Labor Department
1.4 Harvard faculty and labor arbitrator
2 Advisor to Senator Kennedy and role in the Kennedy administration
2.1 Kennedy advisor, then partisan
2.1.1 Kennedy's labor expert
2.2 Solicitor General of the United States
2.2.1 Civil rights and sit-in cases
2.2.2 Reapportionment cases
2.2.3 After Kennedy
3 Watergate special prosecutor
3.1 Terms of engagement
3.2 The reaction
3.3 Staffing up
3.4 Joining issue
3.5 The White House tapes
3.6 Negotiations, grand jury progress, and the court's decision
3.7 White House ultimatum
3.8 Saturday Night Massacre
4 After Watergate
4.1 Teaching again
4.2 Judicial reform
4.3 Supreme Court advocate
4.4 Judicial politics
4.5 Common Cause
6 Published works
7.1 Chaired and university professorships
7.2 Honorary degrees
7.3 Honorary societies
7.4 Other honors
10 External links
Early life, education and private practice
Family and ancestors
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.
The library at St. Paul's School in New Hampshire
Cox attended the private Wardlaw School in Edison, New Jersey until he
was fourteen. Afterwards, he studied at St. Paul's School in New
Hampshire, attending due to his father's intervention on his behalf
despite low grades.
Cox thrived at St. Paul and in his final year he won Hugh Camp
Memorial Cup for public speaking and led 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.
At Harvard, Cox joined a final club, the Delphic Club, called the
"Gashouse" for its 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 father
died, at age 56. For Cox's 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. Cox continued on
to Harvard Law School in 1934.
Cox thrived at law school, ranking first in his class of 593 at the
end of his first year. 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. 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!" Cox graduated in 1937 magna cum
laude, one of nine receiving the highest honor awarded by the law
school that year. Two weeks before his commencement, Cox and
Phyllis married. Moving to New York City after law school, Cox
served as a clerk with United States District Court Judge Learned
Private practice and wartime service
After a year in New York City, Cox accepted an associate position with
the Boston law firm of Ropes, Gray, Best, Coolidge and Rugg. After
World War II began, Cox took a position in the United States Solicitor
General's office. By 1943, Cox had advanced to become Assistant
Solicitor of the Labor Department.
Solicitor in the Labor Department
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
Harvard faculty and labor arbitrator
After WWII was over, Cox returned to the law firm 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.
As a legal scholar and professor at Harvard throughout the 1950s, 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
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
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.
Advisor to Senator Kennedy and role in the Kennedy
Kennedy advisor, then partisan
Kennedy's labor expert
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[d] with a predisposition towards labor.
In the fall of 1959, after the work on the
Landrum–Griffin Act had
wound up, Kennedy confided to Cox 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.[e] 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.[f] 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.
Archibald Cox in April 1960
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
Joseph A. 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
Solicitor General of the United States
FBI Director J. Edgar Hoover, Attorney General Robert F. Kennedy and
Archibald Cox in Rose Garden on May 7, 1963.
After Kennedy's election in 1960, 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 that would never come before the
judicial branch in any other country.
Civil rights and sit-in cases
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 in
his first argued case the new administration's commitment to fight for
it. Cox agreed and selected Burton v. Wilmington Parking
Authority. The case, brought by an African-American who was barred
from a private restaurant that rented space in a building owned by the
state of Delaware, confronted the Court squarely with the limitations
on the Fourteenth Amendment guarantee of "equal protection of the
laws" - erected by the so-called
Civil Rights Cases
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 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.
The Supreme Court as it was composed from October 13, 1958 to March
26, 1962. Top (l-r): Charles E. Whittaker, John M. Harlan, William J.
Brennan, Jr., Potter Stewart. Bottom (l-r): William O. Douglas, Hugo
L. Black, Earl Warren, Felix Frankfurter, Tom C. Clark.
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 statutes dealing with vagrancy,
trespass and even parading without a permit.) 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 on which it might
lose its legitimacy), Cox grew to admire Kennedy. Prior to the Ole
Miss riot the subject reluctantly gave counsel to the President.
Impatient of a piecemeal approach, Robert Kennedy, but more
importantly the civil rights community and 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."[g]
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
that 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 in 1962 on the "state action" doctrine in Bell v. Maryland.
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 legislation
dealing with "public accommodations", 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.[h] 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, minorities 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.[i] 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 that 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
The first case proved far easier than Cox expected.[j] 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.
After President Kennedy's assassination, Deputy Attorney General
Nicholas Katzenbach became Cox's direct superior 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 President Johnson called Warren, who
capitulated. Warren said in 1969 that because of it, it became "the
unhappiest year of my life."
The civil rights legislation that 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 that 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.[k]
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 that 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 that 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.[l] 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
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.[m] 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,[n]
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
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
Watergate special prosecutor
Presidency of Richard Nixon
Nixon White House tapes
1972 U.S. presidential election
"Saturday Night Massacre"
"White House horrors"
United States v. Nixon
Inauguration of Gerald Ford
James W. McCord Jr.
Master list of Nixon's political opponents
Nixon's Enemies List
White House Plumbers
Committee for the Re-Election
of the President (CRP)
Jeb Stuart Magruder
John N. Mitchell
Hugh W. Sloan Jr.
President Richard Nixon
H. R. Haldeman
E. Howard Hunt
G. Gordon Liddy
Gordon C. Strachan
Rose Mary Woods
The Washington Post
Mark Felt ("Deep Throat")
L. Patrick Gray
James R. Schlesinger
Peter W. Rodino
U.S. Senate Watergate Committee
Frank Wills (security guard)
James F. Neal
James F. Neal (prosecutor)
All the President's Men
All the President's Men (book, film)
The Final Days (book, film)
Main article: Watergate scandal
Terms of engagement
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
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---the
sensing of which, perhaps, increased Richardson's willingness to make
concessions to obtain Cox's 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.[o] 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,
efnLike Cox, Richardson came with an illustrious pedigree, only his
could be traced back to the earliest settlers in Boston and therefore
he was counted among the Boston Brahmin. Richardson attended Harvard
College and Law School (where he was president of the Harvard Law
Review), had been a student of Cox's, and, like Cox, clerked for Judge
Hand (1947–48) and been associated with Ropes & Gray. But
Richardson had the additional advantage of having also clerked for
Frankfurter (1948–49) and indeed was considered one of Frankfurter's
all-time favorites. Richardson, who negotiated with Frankfurter
to allow him one hour every morning to read Shakespeare, so impressed
Frankfurter that the latter proposed him for the presidency of Harvard
in 1953, even though he was only 33. Richardson had sought out
Cox's career advice. And despite Richardson's affiliation with
the Republican Party, in 1967 Cox supported Richardson for attorney
general of Massachusetts, an election Richardson won. 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
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. In addition, 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 confirmation was highlighted by the fact that he brought
Cox along to his 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
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[m] 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 whom 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.[p] Ervin
told the press: "Professor Cox's request is extraordinarily
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.[r] 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 meeting, claiming executive
privilege on behalf of Nixon.[s]
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 indictment. 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; he became Cox's number two man, picked to be the chief trial
attorney. Vorenberg became 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; and 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.
Special Prosecutor's office 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 request.
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 ones 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. 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 documents 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
documents, 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.[t] 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 an illegal $55,000 campaign
contribution to Nixon's personal lawyer Herb Kalmbach. Within two
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."
The White House tapes
Herb Kalmbach, especially of interest to the illegal campaign
contributions task force,[u] 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 taping system that 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 biggest piece of evidence unearthed by
the Senate Watergate Committee; around it much of the remainder of the
cover-up case would revolve.[v]
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 arguably
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.[w] 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[x]
served on Buzhardt who accepted on behalf of the president.
On July 26, Chief Judge John J. Sirica[y] 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,
explaining the response to them; 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
materials to turn over to them. 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,[z], 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,[aa] 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." Wright said 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.[ab] 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 that 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.
Negotiations, grand jury progress, and the court's decision
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
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.[ac] 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 that 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,[ad] 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; Krogh
would be indicted October 11. While most of this activity went
unreported, people tapped into the network of defense attorneys and
grand jury witnesses (including 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,[ae] 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 that the president could
articulate a particularized need for confidentiality, and Cox was
permitted to see any portion where Sirica needed guidance on
White House ultimatum
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.[af] 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 it was an inefficient way
to proceed and gave him his earlier 6-page proposal; and Richardson
agreed to write a counter-proposal.
Elliot Richardson, photo portrait during the Nixon administration
Cox did not hear from Richardson the rest of Tuesday or 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.[ag] 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. It left the
Special Prosecutor as the only means by
which the tapes could be made public. Pressure on Cox to seek the
material increased, while the White House was left with only one
avenue to block it and so 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 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
On Thursday, October 18, Cox drafted an 11 point reply to Richardson.
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 that 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.[ah] Richardson, perplexed at the opposition to negotiating
with Cox, suggested to Wright: "Charlie, why don't you call Archie and
see if you can sell it to him."[ai] 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).[aj] 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 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; 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.[ak] 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,[al] 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.
Saturday Night Massacre
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.[am] 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
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.
Archibald Cox at the National Press Club on October 20, 1973
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
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. Doyle said: "He was
folksy, unpretentious, disarming. He seemed the country lawyer,
talking good sense." 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
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
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.[an] As for the termination
itself, Bork sent a written order to Cox by messenger that evening to
The White House then fatally overplayed its hand. At 8:25 p.m.
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
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.
Staffers 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.
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."
Front page of the New York Times, October 21, 1973, announcing the
Saturday Night Massacre
Saturday Night Massacre amid mounting tensions between the United
States and the Soviet Union over possible armed conflict in the Middle
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,
Carl Albert began referring impeachment resolutions to the
House Judiciary Committee with the consent of Gerald Ford. Nixon
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
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 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. To everyone's
amazement, Wright announced that the president was prepared to produce
all the material ordered. Not long afterward,
Leon Jaworski would
Special Prosecutor and, because of Nixon's wounded public
standing, was given even more independence than Cox had. Cox would not
be part of any of it, 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,[ap]
he and Phyllis drove off in their pickup truck to their place in
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
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.[aq] 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."
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.
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."
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.[as] In the
next session the bill was drastically revised, but ultimately
retained the state take-over of funding and implemented some
centralization and coordination.
Supreme Court advocate
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 of the
Federal Election Campaign Act
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.
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.[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. 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 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 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.[aw] 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 the
"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
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
Griffin B. Bell
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
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.
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
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
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 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. 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.[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
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
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
After twelve years at the helm, Cox, at 79, chose to retire from the
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
Cox died at his home in Brooksville, Maine, of natural causes on May
29th, 2004. He and his wife, Phyllis, 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
In addition to his case book, he was the author of nearly a hundred
Chaired and university professorships
During his career at Harvard, Professor Cox was honored with the
following chaired or university professorships:
1958–61, Royall Professor, Harvard Law School
1965–76, Williston Professor, Harvard Law School
1976–84, Carl M. Loeb University Professor, Harvard University
1984–his death, Carl M. Loeb University, Professor, Emeritus,
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
Cox was elected member to or granted recognition by the following
Elected a Fellow of the
American Academy of Arts and Sciences
American Academy of Arts and Sciences in
Delivered the Harvard Phi Beta Kappa Oration during the literary
exercises before commencement in June 1974
Elected member of the
American Philosophical Society
American Philosophical Society in 1980.
Member of the Committee on Phillips Prize 1982–88.
Awarded Outstanding Scholar Award by the
American Bar Foundation in
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
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.
In 1995 the Institute of Government and Public Affairs awarded Cox its
Ethics in Government Award. Cox was also the recipient of the
Thomas "Tip" O'Neill Citizenship Award.
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."
^ Cox's siblings were: Elizabeth "Betty" (born 1913), Mary "Molly"
(1916), Robert (1919), Maxwell (1922), Louis (1924) and Rowland
^ See Gormley 1999, p. 4. The volume edited by Cox's grandfather
was: Cox, Rowland (1871). American Trade Mark Cases: A Compilation of
All the Reported Trade Mark Cases Decided in the American Courts prior
to the year 1871. With an Appendix Containing the Leading English
Cases …. Cincinnati: R. Clarke.
^ The title of the paper referred to Jefferson's explanation to the
French of the function of the Senate: just as pouring tea into a
saucer cools it, so legislation coming from the House ("hot" because
of the populist composition of that body) is cooled in the Senate
(which is less populist because they are appointed by the states
rather than elected by the people). One aspect of the research that
would later relate to Cox's most famous episode was the impeachment
and acquittal of Supreme Court Justice
Samuel Chase in 1803. Chase was
the first nationally known official to be impeached by the House.
^ Professor Cox in 2000 was not certain when he had registered as a
Democrat. He thought it "may have just been in connection with working
with Kennedy and thinking it would be well advised." He once
revealed that he had voted in an election for Democrat Adlai Stevenson
for president, Republicans
Henry Cabot Lodge Jr.
Henry Cabot Lodge Jr. for Senator and
Christian Herter for Governor. Lodge's opponent in that race was
John F. Kennedy.
Abram Chayes claimed that it was his idea to select Cox for this
purpose and so told Sorensen "a couple of months" before 1960.
Much like he did with the informal group of advisors that Cox
recruited and led for the initial advice on the McClellan Hearings,
Kennedy never made explicit what activities he wanted the group to
perform, although he was clear to both Cox and those experts he met
that he did not expect them to consider political implications in
delivering their opinion on sound policy. Cox later found out that
the position had been originally offered to Harvard law professor Mark
Howe, who turned it down, thinking he was not suited for the role and
^ See Gormley 1997, p. 116. The attendees included, from MIT:
Jerome Wiesner, Walt W. Rostow, Paul Samuelson,
Lucian Pye and Walter
A. Rosenblith; from Harvard Law School: Mark Howe,
Paul Freund and
Abram Chayes; and from Brandeis: Edward L. Katzenbach, Jr.
^ The former argument found some support in Boynton v. Virginia, 364
U.S. 454 (1960), which vacated a trespass conviction of an African
American eating in a "whites only" facility of a bus station. But that
decision was based on the Interstate Commerce Act, which banned
segregation (and itself was based on the
Commerce Clause and not the
Fourteenth Amendment). The second theory had some support in Shelley
v. Kraemer, 334 U.S. 1 (1948), which made racially-discriminatory real
estate covenants illegal on the ground that court enforcement of them
sufficiently intertwined the state in private discrimination as to
amount to "state action." The arguments pressed on Cox, however, went
well beyond those precedents in Cox's opinion, however much he agreed
with the policy outcome.
^ In 1962 more than half the states had failed to re-apportion
legislative districts for more than a quarter of a century.
^ Frankfurter's decision in Colegrove v. Green, 328 U.S. 549 (1946),
was joined in by only two other justices. The two others making the
majority decided on other grounds.
^ It also became, to Warren's mind on his retirement, the single most
important contribution to
Constitutional law during his tenure: "I
Baker v. Carr
Baker v. Carr was the most important case that we decided in my
time, because that gave to the courts the power to determine whether
or not we were to have fair representation in our governmental system,
and Reynolds v. Simms [377 U.S. 533 (1964)] was merely the application
of that principle."
^ See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) and
Katzenbach v. McClung, 379 U.S. 294 (1964). There was no dissent in
^ "While the Government has argued that several provisions of the
Mississippi laws challenged here might or should be held
unconstitutional on their face without introduction of evidence or
further hearings, with respect to all the others, the Solicitor
General in this Court specifically has declined to 'urge that the
constitutionality of these provisions be decided prior to trial.' In
this situation, we have decided that it is the more appropriate course
to pass only upon the sufficiency of the complaint's allegations to
justify relief if proved." United States v. Mississippi, 380 U.S. 128,
143 (1965) (Black, J.).
^ Cox represented the Commonwealth of Massachusetts, which supported
^ Cox was quoted as saying: "My whole life and career has trained me
to look upon the Solicitor's office as second only to God." Years
later, after arguing the Bakke case in 1977, Cox told a reporter from
the Boston Globe: "There's nothing quite like being back before the
^ Nixon's previous attorney general, Richard Kleindienst, had resigned
at the request of the president (together with chief of staff H. R.
Haldeman and Nixon counsel John Ehrlichman) on the same day that White
John Dean was fired as part of Nixon's attempt to get
out front of the scandal publicly. In hindsight it was probably a
mistake to create a vacancy at Justice. No one was then calling for
Kleindienst's resignation, but once he resigned the perception was
fixed that two attorneys general in a row (the first being John
Mitchell) had been tainted with Watergate allegations. Even Senate
Republicans now called for the appointment of a
Special Prosecutor by
a resolution that received unanimous Senate consent. Now that a new
attorney general had to be confirmed, Senate Democrats had the
leverage to make the appointment of a
^ See Doyle 1977, p. 67. Cox wanted to establish his
independence, but mostly the request was to protect the integrity of
the prosecutions. National publicity might make it impossible for
defendants to receive a fair trial, requiring indictments to be
dismissed. Defendants and witnesses could watch the testimony and
fashion their own accordingly. More significantly, the Senate could
grant immunity to witness, to require them to testify, and thus
possibly fatally compromise a prosecution. Cox was serious enough
about the point that he made a motion to Judge Sirica, who was
presiding over the Watergate prosecutions, requesting that he postpone
the hearings. Alternately he asked that the court prohibit television
coverage of the hearings. Cox also asked the court to prohibit the
Senate Committee from granting use immunity to
John Dean and Jeb
Stuart Magruder. Cox's lawyers researched the points but determined
that the judge would deny the motion (which he eventually swiftly
did). When Cox realized he would lose, he sent his assistant Philip
Heymann to argue the motion. The court denied the motion is all
^ Quoted in Doyle 1977, p. 68. Committee Counsel Sam Dash used
the same word describing their encounter when he visited Cox and
Vorenberg on their first day in their offices. Cox told Dash that
"you've got to close down your investigation" because it would
interfere with the investigation. Dash said he told Cox: "For God's
sakes, Archie, we have separation of powers. Our function is quite
different than yours. We're supposed to inform the public and
ultimately to reform legislation. You're a prosecutor. You're going to
be trying to send people to jail. ... This is such an emergency that
the public should know now what happened that we can't wait that long
and I'm going to recommend to Ervin to say ‘no' to you."
^ Silbert believed he was unfairly accused of failing to follow up
leads and confining the investigation for political reasons. He
believed that his strategy of prosecuting the burglars, seeking
maximum sentences and then after conviction requiring them to testify
under immunity ultimately produced first the disclosures of McCord,
then the cooperation of Magruder and Dean. But as Heymann pointed
out, the purpose of the appointment of a
Special Prosecutor was
precisely to "substitute his credibility" for that of Silbert's.
^ The meeting between Petersen and the president that was the focus of
the first conversation took place on April 15, 1973. Cox and Vorenberg
were concerned about leaks and whether confidential grand jury
information was being misused. Petersen insisted that the president
agreed that he should not receive any grand jury material. During the
course of the interview Petersen mentioned that Nixon had a tape of a
conversation he had with Dean (during which Dean claimed the Justice
Department was about to give him immunity). Cox did not follow up on
that clue. Later proceedings would show that Petersen had kept
Dean informed of grand jury testimony, brief the president on
Dean's testimony, and gave Nixon a written summary of the
evidence against Haldemann and Ehrlichman. Nixon discussed these
materials with both his aides. As for the April 15 meeting, when the
tapes were finally produced, the tape for that meeting was
^ The prosecutors were broadsided on June 21 by an amicus brief of the
ACLU in support of McCord's motion to vacate his conviction. The ACLU
brief urged the court to vacate all the convictions based on multiple
frauds perpetrated on the court by prosecutors who had engaged in a
"sham prosecution." Silbert's diaries showed that he was
frustrated by the allegations of people who believed he was not
zealous enough and resented the appointment of Cox. He requested a
vindication of his teams' proceedings. Cox replied that he saw nothing
that showed they acted other than pursuant to the "honest judgment"
and in "complete good faith."
^ Kalmbach was Nixon's personal lawyer who specialized in raising
large sums for Nixon's campaigns from large corporations. Even before
the Watergate break-in Kalmbach was known as one from whom White House
influence could be purchased for cash. Not only was he the chief
fundraiser in the 1972 campaign he was one of very few who could draw
on money from a "secret political espionage fund."
^ Aside from Butterfield's testimony, all the testimony televised by
the Watergate Committee had been developed by the federal prosecutors
in the District of Columbia U.S. attorney's office. Moreover, the
presentation by the committee was largely inept in the opinion of the
Special Counsel's staff. Dean, for example, escaped serious
cross-examination. The committee allowed burglar
Bernard Barker to
testify without serious challenge to the patriotic motives of his
cohorts, explaining that he believed that the Watergate Hotel
contained evidence that
Fidel Castro was sending money to Senator
Edward Kennedy. And no one asked him how money from the Nixon campaign
committee ended up in his bank account. Nevertheless, without the
disclosure of the tapes, the eventual outcome would have been in
^ One tape requested covered the meeting of Nixon, Haldeman, and
Ehrlichman on June 20, 1972, their first meeting after the break-in.
The remaining seven tapes covered meetings between Dean and Nixon in
September 1972 and the spring of 1973. Since Dean had testified about
these meetings with the permission of the president, Nixon arguably
waived any privilege that may have attached to them.
^ The three additional items consisted of: a tape of a meeting on
March 21; a memo of March 30 between two White House personnel
employees concerning Hunt's employment; and memoranda between Gordon
Strachan and Haldeman from November 1971 to November 1972 concerning
sale of ambassadorships. The second item had been voluntarily
delivered to the FBI. Its inclusion was designed to bolster the waiver
argument. The third group was designed to show that the White House
interested itself in political matters and therefore privilege
covering his "executive" function should not apply.
^ By virtue of being chief judge of the United States Court for the
District of the District of Columbia Sirica handled all grand jury
matters. He also was the trial judge of the original Watergate
^ A stark example was seen when Haldeman had been given access to the
tapes to prepare his testimony and then having "refreshed his
recollection" about the meetings testified before the Senate Watergate
Committee. ordinarily when a witness uses material to refresh his
recollection, the cross-examiner is entitled to see it and have it
received into evidence if he so moves. This tradition is reflected as
for "writings" in Federal Rule of Evidence 612(b).
Special Prosecutor's office was particularly concerned with the
sentence that "If privileged and unprivileged evidence are so
inextricably connected that separation becomes impossible, the whole
must be privileged and no disclosure made to the grand jury." Cox
was concerned that he would have no input into the decision; it would
be made by a judge who was unfamiliar with how all the evidence
connected. What made the decision to involve himself the more odd was
that neither side had suggested or briefed the issue.
^ The appellate court moved up the schedule in light of the expiration
of the grand jury in early December. A decision by the end of
September would also give the Supreme Court a chance to hear the case
upon its return on October 1. A hearing before the entire circuit
rather than the usual three-court panel also deprived the losing party
from delay associated with a petition for hearing en banc.
^ In mid-June Haig complained to Richardson after Cox told reporters
he might subpoena the president. Several weeks later he called
Richardson to tell him that the president was "very uptight" about Cox
and wanted "a line drawn." The president would "get rid" of him if he
strayed outside the lines. On July 7 Nixon wrote Haig that he
wanted "Richardson to rein in
Archibald Cox and take him to task for
'conducting a partisan political vendetta rather than [doing] … the
job he was appointed to do—bring the Watergate defendants to trial
at the earliest possible date." The incident that infuriated
Nixon and set him on a course of inflexible hostility towards Cox took
place when Cox requested news clippings concerning the controversy
over the source of funds used to renovate Nixon's estate at San
Clemente. Haig three times interrupted a meeting Richardson was having
with Maryland prosecutors informing Richardson for the first time of
the case they were going to bring against Vice President Spiro Agnew.
On the third call Nixon took the phone and demanded that Richardson
get Cox to make a retraction within 30 minutes or he would to fire
Cox. The demands, threats and complaints to Richardson continued,
until on September 25, just around the time the parties were supposed
to be negotiating over the tapes, Nixon concluded a meeting with
Richardson by saying that after the Agnew affair was over he wanted to
get rid of Cox.
^ Cox believed that there was an appearance of conflict of interest
since his younger brother Maxwell was a member of the New York law
firm that represented Howard Hughes. Nationally syndicated
columnist Jack Anderson later reported that the feeling at the Special
Prosecutor's office was that the Rebozo case more than the desire to
shield the tapes was the motivating factor in Nixon's decision to fire
^ The court rejected entirely the two broad principles urged by
Wright: that separation of powers deprived the court jurisdiction to
hear the case and that the president was the only person entitled to
decide what items were covered by executive privilege: "Whenever a
privilege is asserted, even one expressed in the constitution, such as
the speech and debate privilege, it is the courts that determine the
validity of the assertion and the scope of the privilege." If an
executive privilege exists (and it is not found in the text of the
constitution), the court held the privilege is not absolute and the
courts, not the president, must be the arbiter. The court then
examined the specific circumstances of the case, it found that only a
portion of one tape involved military secrets. As for the rest, only a
generalized interest in protecting the confidentiality of presidential
communications was asserted, and the court found that the particular
need of the grand jury in this case overweighed that generalized
^ On Saturday October 13, Wright telephoned from Texas that the
president should appeal to the Supreme Court. Nixon, however, did not
want to take the risk of losing in the Court whose ruling he publicly
pledged to respect. As Richardson came to realize later, the plan
of Nixon and Haig was to force Cox to resign or at least engineer a
situation that made it appear that Cox was in the wrong so as to
justify firing him. It was essential for this plan, however, that
Richardson appear to be the one negotiating with Cox and, even more
importantly, not resign but instead fire Cox when Cox refused
Richardson's "reasonable proposal." On Monday morning Haig had
Richardson in the White House and either appealing to his vanity or in
an attempt to keep him off balance gave an elaborate presentation on
the progress of the war by Egypt and Syria against Israel, which had
resulted in a tense standoff between the Soviet Union and the United
States the previous week. He then turned to Watergate and told
Richardson that Nixon had decided to fire Cox and submit to Sirica
summaries of the tapes verified by him. He even had a draft letter
directing Richardson to fire Cox. Richardson told him he would resign
if he received such a letter. Buzhardt met Richardson separately
and suggested that a third party verifier might be an alternative.
Richardson seized on the idea and urged Haig to press in upon the
president as a way to avoid adverse public reaction. When back at his
office, he received a phone call from Haig saying he would try to
persuade the president to use a third party and would suggest Senator
John Stennis. An hour later he called again to say that the president
would agree on two conditions: Cox would be barred from asking for any
more documents, tapes, or other presidential material; and Richardson
must agree to fire Cox if the latter balked. Richardson said that he
would call back within an hour. When he did, he told Haig that he
would not fire Cox under these circumstances. Haig responded by merely
saying that he would contact Stennis directly to seek his cooperation.
At 4:00 p.m. he again met with Haig and Buzhardt who told him Stennis
was on board. They gave him the impression that the Stennis plan was
very similar to the plan Cox had proposed but Buzhardt said that plan
was confidential and did not give a copy to Richardson.
^ There was some evidence supporting Doyle's view. The much tighter
agreement that Cox proposed before the Court of Appeals decision
produced this response by Senate Majority Leader, one of the few
outside the office who saw it: "Well, you've offered to give ninety
percent of it away." Richardson now wanted him to give away more.
^ Neither Wright nor any of Nixon's other lawyers had been permitted
to listen to the tapes, so they did not know how clearly they showed
the president's culpability for obstruction of justice at least. They
were unable therefore to evaluate how serious a risk a 50% chance of
full disclose constituted. Moreover, Wright at least was still unaware
that the president had already ruled out presenting his case to the
^ Both Richardson and Wright were unaware that the Nixon-Haig plan was
to isolate the president's lawyers from the negotiations in order to
use Richardson, and his reputation for integrity, to help sell the
reasonableness of the plan. Back in his office that night after
considering whether he would be able to pressure Cox the way the White
House wanted him to, Richardson wrote out a memo entitled "Why I must
resign", which concluded that the president's attitude toward Cox was
not "fundamentally valid."
^ The other three were: that only Stennis would be involved, that
there would be no "
Special Masters" and that Cox himself would have no
access to the tapes, only the summaries.
^ Cox was unaware that Nixon had a bigger preoccupation. The Miami
Herald that morning had a front page story that Bebe Rebozo was the
subject of an investigation for tax fraud for the $100,000 from Howard
Hughes supposedly for Nixon's campaign. Rebozo was on his way to
Washington at that very moment. The White House was drawing inferences
from all these matters. Later in the day Richardson telephoned to find
out if Cox had named Nixon as an unindicted co-conspirator in any
indictment. With that call Cox realized that paranoia was running high
at the White House.
Sam Ervin was reached in North Carolina by Sam Dash the next
morning, for example, he said that he had been told that the committee
would get complete transcripts not summaries and that he never agreed
that the procedure should apply to the
^ Although political support would have helped level the balance of
power, Cox felt it inappropriate for a prosecutor to set out to build
it. Heymann said: "In the ominous days before the Saturday Night
Massacre when Cox might well have been marshaling political support,
he did not, and found himself quite alone among the responsible
figures in insisting on access to the crucial tapes when the Senators
most involved had accepted an inadequate substitute. He didn't think a
prosecutor should be marshaling Congressional support. Indeed, he
regretted deeply the few hesitant steps he had taken in that direction
when he earlier had reason to fear interference with the execution of
^ Nixon's purported reason for firing Cox, as relayed by Haig, was
that Cox had embarrassed Nixon during sensitive negotiations during
the Middle East war. Richardson's advice to Bork, not to resign,
or at least not to resign after firing Cox, was an important factor
for Bork. But "[w]hy Bork acted as he did, exactly how he acted, and
what were the consequences of his acts, became matters of some
^ Richardson called Cox earlier that afternoon, informing him that he
and Ruckelshaus had resigned and that Bork would be firing him. Cox
explained: "Sometime further on, the phone rang and it was the White
House operator trying to get our address, and letting us know there
was a letter to be delivered. And the messenger got lost in nearby
Virginia. Instead of getting there in 20 minutes as he could have, it
took him more than an hour. I think when I got the letter, the first
thing I said to my wife and daughter was, 'I think they at least owed
it to me to send me somebody with a jacket and necktie.' That's the
kind of silly remark you make in moments of emotion … I was much
more concerned about the issues."
^ Jaworski at Robert Kennedy's request prosecuted Governor Ross
Barnett of Mississippi for contempt over the integration of the
University of Mississippi by Medger Evers. Cox had been so impressed
with his integrity (as a Southerner taking on a segregationist
politician) and his talent that he split his argument time with him
before the Supreme Court.
^ United States v. Nixon, 418 U.S. 683 (1974) (opinion by Chief
Justice Burger, joined in by all except Associate Justice William H.
Rehnquist who did not participate in the deliberations). Justice
Rehnquist had recused himself on the ground that as an assistant
attorney general during Nixon's first term, he had taken part in
internal executive-branch discussions of the scope of executive
^ The professorship had been offered before Cox's appointment as
Watergate prosecutor. Cox chose to deliver lectures at Sidney Sussex
^ The recommendations faced an uphill battle through Massachusetts
byzantine politics. The major problems were (i) the balkanized
judicial system gave hundreds of independent enclaves of patronage, so
the judiciary (including clerks and other officers) had no interest in
reform; (ii) there existed a "terrible hatred" between the Governor
and the chairman of the Senate Judiciary Committee (both of whom
supported reform, and the chairmen and between the Senate and House
Judiciary Committees (the later of which opposed reform); and (iii)
the House kept inserting poison pills that would make the legislation
unconstitutional (namely, making certain judges elected rather than
appointed) and reusing to include a severability provision. Late
in the legislative seson Cox tried to persuade the state's selectmen
at an annual gathering that the bill would substantially ease their
own budgets and benefit local governments especially, but the
association ignored the plea in its legislative requests. Ultimately
the bill failed in the Senate when the term ran out during a
^ For example, in early 1977 Cox agreed to help an advocacy group for
native Americans who were pressing the claims of the
Penobscot against the state of Maine for land acquisition. The
claims were ultimately settled for $81.5 million through the adoption
of the Maine Indian Claims Settlement Act of 1980.
^ The president's counsel, Herb Kalmbach, was able to raise large and
illegal contribution from numerous corporations and commercial groups,
and following the contributions the contributors received significant
government benefits: The Milk Producers Association pledged $2 million
at the same time the Nixon Administration increased the support price
of milk. American Airlines received approval for certain profitable
routes right after an illegal contribution. ITT agreed to underwrite
the Republican National Convention and an antitrust suit by the
government was dropped after a direct order by the president to
^ The principal regulations were as follows: (i) prohibition on
individuals against contributing more than $1,000 to any one candidate
per election; (ii) prohibition on multi-candidate committees against
contributing more than $5,000 to one candidate; (iii) prohibition on
candidates against contributing above set ceilings from personal or
family funds; (iv) prohibition on aggregate spending by a campaign
above a set amount; (v) prohibition on individual against spending
above $1,000 on behalf of a candidate regardless whether it was in
coordination with the campaign; (vi) provision for federal financing
of campaign under certain conditions, including that candidate agrees
to spending limits; (vii) prohibition on "election committee" against
spending more than $1,000 on any candidate who has elected public
financing. The Court held that (i) the reporting requirements were
constitutional; (ii) the restrictions on contributions were
constitutional; (iii) restrictions on spending by the campaign or
individuals (except those in coordination with a campaign that
accepted the voluntary restrictions as a condition for public
financing) were unconstitutional; and (iv) the provisions for public
financing of presidential elections were constitutional.
^ Cox opened by stating the case as follows:
"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
^ There was much debate whether Powell's opinion on race as a
permissible "plus factor," represented a holding of the Court inasmuch
as it was not joined in by other justices. That doubt was removed by
Grutter v. Bollinger, 539 U.S. 306 (2003), where Justice Sandra Day
O'Connor re-affirmed Justice Powell's reasoning in an opinion for the
Court. Cox's friend and colleague Charles Ogeltree attributes the
survival of affirmative action programs in universities to Cox's
forceful argument in Bakke.
^ One member said that "[i]t bothers me ... because he ... disregarded
what the commission was trying to do—select the positively best
person." Common Cause's counsel termed the behavior "awfully petty."
The National Journal concluded the affair demonstrated that when
Carter and his aides "bungle something, they don't do it half way." It
showed lack of statesmanship and competence at a time when Carter's
hold on the nomination, let alone re-election, was slipping.
^ Gormley determined that Cox argued 86 cases before the Court in his
career, winning 61, losing 18 with 7 split decisions,
^ Shapiro, Fred R. (2000). "The Most-Cited Legal Scholars". Journal of
Legal Studies. 29 (1): 409–426. doi:10.1086/468080.
^ Gormley 1997, p. 8.
^ a b c "Archibald Cox: New York Lawyer dies at Age of 56 in Home at
Rahway, N.J." New York Times. February 28, 1931. p. 30. Retrieved
March 12, 2016.
^ "Archibald Cox, 92, Is Dead; Helped Prosecute Watergate". New York
Times. May 30, 2004. p. N32. Retrieved March 11, 2016.
^ Gormley 1997, p. 4.
^ Hilbink 2000, p. 1:22.
^ Hilbinks 2000, pp. 1–2.
^ a b c d Collins 1987
^ Gormley 1999, p. 16.
^ Hilbink 2000, pp. 1:4–5.
^ Gormley 1997, pp. 20–21.
^ Hilbink 1999, p. 1:5; Gormley 1997, p. 21.
^ Gormley, p. 26.
^ Hilbink 2000, pp. 1:6–7.
^ Gormley 1997, pp. 1:26–28; Hilbink 2000, pp. 9, 12–13.
^ "Ames—Cox". New York Times. March 15, 1936. p. N7. Retrieved
March 31, 2016. (Subscription required (help)).
^ "Phyllis Ames to Be Wed to
Archibald Cox In Ceremony on June 12 at
Wayland, Mass". New York Times. March 19, 1937. p. 20. Retrieved
March 10, 2016. (Subscription required (help)).
^ Gormley 1997, p. 33.
Harvard University Confers 2,062 Degrees at Today's Commencement
Exercises". New York Times. June 24, 1937. p. 28. Retrieved March
12, 2016. (Subscription required (help)).
^ "Phyllis Ames Wed in Floral Setting". New York Times. June 13, 1937.
p. 138. Retrieved March 12, 2016. (Subscription required
^ Hilbink 2000, p. 49.
^ Dunlop, John T; Hill, Arthur D. (1950). The Wage Adjustment Board:
Wartime Stabilization in the Building and Construction Industry.
Harvard University Press. p. 40 &
passim. LCCN 50010218.
^ Gormley 1997, pp. 59–60.
^ Hilbink 2000, p. 54.
^ "Dean's Report Cites Record of Veterans". Harvard Law School Record.
5 (12). January 6, 1948. p. 1. Retrieved April 7, 2016 – via
Heinonline.org. (Subscription required (help)).
^ Gormley 1997, p. 84.
^ Bok 2006, p. 462.
^ Lynd, Slaughton (Summer 1981). "Government without Rights: The Labor
Law Vision of Archibald Cox". Industrial Relations Law Journal. 4 (3):
483–95, 487 n. 36. Retrieved April 10, 2016 – via Heinonline.org.
(Subscription required (help)).
^ Shapiro, Fred R. (2000). "The Most-Cited Legal Scholars". Journal of
Legal Studies. 29 (1): 409–26. doi:10.1086/468080.
^ See Harper, Michael C. (Summer 1981). "Union Waiver of Employee
Rights under the NLRA: Part I". Industrial Relations Law Journal. 4
(1): 335–89. Retrieved April 10, 2016. Lynd, Slaughton (Summer
1981). "Government without Rights: The Labor Law Vision of Archibald
Cox". Industrial Relations Law Journal. 4 (3): 483–95. Retrieved
April 10, 2016 – via Heinonline.org. (Subscription required
(help)). Kaden (March 1980). "Judges and Arbitrators:
Observations on the Scope of Judicial Review". Columbia Law Review. 80
(2): 267–98. doi:10.2307/1121921. Retrieved April 10, 2016 – via
Heinonline.org. (Subscription required (help)). Klare, Karl E.
(March 1978). "Judicial Deradicalization of the Wagner Act and the
Origins of Modern Legal Consciousness, 1937-1941". Minnesota Law
Review. 62 (3): 265–340. Retrieved April 10, 2016 – via
Heinonline. (Subscription required (help)).
^ Schiller, Reuel E. (1999). "From Group Rights to Individual
Liberties: Post-War Labor Law, Liberalism, and the Waning of Union
Strength". Berkeley Journal of Employment and Labor Law. 20 (1):
1–73. Retrieved April 15, 2016 – via Heinonline.org. (Subscription
required (help)). Carney, James T. (Winter 1983). "In Defense of
Industrial Pluralism". Dickinson Law Review. 87 (2): 253–64.
Retrieved April 10, 2016 – via Heinonline.org. (Subscription
required (help)). "The Radical Potential of the Wagner Act: The
Duty to Bargain Collectively". University of Pennsylvania Law Review.
129 (6): 1392–426. June 1981. doi:10.2307/3311962. Retrieved April
10, 2016. Tomlins, Christopher L. (October 1985). "The New Deal,
Collective Bargaining, and the Triumph of Industrial Pluralism".
Industrial and Labor Relations Review. 39 (1): 19–34.
doi:10.2307/2523535. JSTOR 2523535. (Subscription required
^ Gormley 1997, p. 98.
^ Hilbink 2000, p. 1:62.
^ "Professor in Demand: Archibald Cox". New York Times. April 6, 1960.
p. 31. Retrieved April 20, 2016. (Subscription required
^ Gormley 1997, p. 112.
^ Chayes 1964, pp. 52–53.
^ Gormley 1997, p. 115.
^ Hilbink 2000, p. 1:72.
^ Hilbink 2000, pp. 1:70–71; Gormley 1997, p. 115.
^ Gormley 1997, p. 485 n.22.
^ Hilbink 2000, pp. 1:72–73.
^ Lester 1964, p. 47.
^ Lester 1964, pp. 42–45.
^ One of the many papers that reprinted the report: "Presidential
Candidates Rely on 'Brain Trusts' for Advice". Jefferson City [Mo.]
Post-Tribune. April 26, 1960. p. 5.
^ "Kennedy's Nomination Drive Aided by Mixture of Amateurs,
Professionals, Eggheads and Hardheads". New York Times. July 14, 1960.
Retrieved March 23, 2016. (Subscription required (help)).
^ Hilbink 2000, p. 1:74.
^ Gormley 1997, p. 122.
^ Loftus, James A. (February 8, 1960). "Diverse Staffs Assist
Kennedy". New York Times. p. 25. Retrieved March 28, 2016.
(Subscription required (help)).
^ Hilbink 2000, p. 1:66.
^ "Professor Cox Back at the Law School, Resumes Teaching". Harvard
Law Record. 31 (11). December 8, 1960. p. 8. Retrieved April 15,
2016 – via Heinonline.org. (Subscription required (help)).
^ Hilbink 2000, p. 1:78.
^ Gormley 1997, p. 143.
^ Gormley 1997, p. 141; Hilbink 2000, pp. 2:117–18.
^ Gormley 1997, p. 146; Salokar, Rebecca Mae (1992). The
Solicitor General: The Politics of Law. Philadelphia, Pennsylvania:
Temple University Press. p. 38. ISBN 0877229260.
^ Cox 1961, p. 94.
^ 365 U.S. 715 (1961).
^ For an examination of the state of constitutional jurisprudence on
"state action" at the time that Cox became Solicitor General, see
Peters, Roger Paul (May 1959). "Civil Rights and State Non-Action".
Notre Dame Lawyer: 303–334. Retrieved March 30, 2016 – via
Heinonline.org. (Subscription required (help)).
^ Gormley 1997, pp. 149–151.
^ See Goldstein, Leslie Friedman (Winter 1981). "Death and
Transfiguration of the State Action Doctrine—Moose Lodge v. Irvis to
Runyon v. McCrary". Hastings Constitutional Law Quarterly. 8 (2): 1,
3. Retrieved March 30, 2016 – via Heinonline.org. (Subscription
required (help)). Cox also discusses this trend in "Foreword:
Constitutional Adjudication and the Promotion of Human Rights".
Harvard Law Review. 80 (1): 91, 102. November 1966. Retrieved March
30, 2016 – via Heinonline.org. (Subscription required (help)).
^ For a description of the Justice Department's efforts to protect
protestors and employ legal measures to promote voting rights and
integration of facilities, see Schlesinger, Jr. 1978, p. 1:329
^ Gormley 1997, pp. 151–152.
^ Gormley 1997, pp. 162–163.
^ Hilbink 2000, pp. 1:95–97.
^ Gormley 1997, pp. 158–59; Hilbink 2000, pp. 1:97–100.
^ Gormley 1997, p. 159.
^ Gormley 1997, pp. 159–60; Hilbink 2000, p. 1:98.
^ Schlesinger, Jr. 1978, p. 1:413.
^ Terris, Bruce J. (November 2007). "Attorney General Kennedy versus
Solicitor General Cox: The Formulation of the Federal Government's
Position in the Reapportionment Cases". Journal of Supreme Court
History. 32 (3): 335, 345, 337. doi:10.1111/j.1540-5818.2007.00171.x.
(Subscription required (help)).
^ Gormley 1997, pp. 165–68.
^ Baker v. Carr, 369 U.S. 186 (1962)
^ Lake 1969, p. 130.
^ Solimine, Michael E. (Summer 2012). "Congress, the Solicitor
General, and the Path of Reapportionment Litigation". Case Western
Reserve Law Review. 62 (4): 1109–52, 1121. Retrieved March 31, 2016
– via Heinonline.org. (Subscription required (help)).
^ Hilbink, pp. 2:168–69.
^ Gormley 1997, pp. 184–86.
^ Lake 1969, pp. SM133-34.
^ Marshall 1970, p. 5.
^ "Annual Message to the Congress on the State of the Union". LBJ
Presidential Library Website. January 4, 1965. Retrieved April 18,
2014. [permanent dead link]
^ Gormley 1997, pp. 190–91.
^ For one of the papers the column appeared in, see Pearson, Drew
(March 13, 1965). "Chance to Kill Dixie Voting Law Muffed".
Hagerstown, Md. Morning Herald. p. 5. Retrieved April 18, 2016
– via newspapers.com.
^ South Carolina v. Katzenbach, 383 U.S. 301 (1966)
^ Navasky 1971, p. 281.
^ a b Gormley 1997, p. 405
^ Gormley 1997, pp. 193–94.
^ Gormley 1997, p. 195
^ UPI (July 14, 1965). "Appointment Assailed". New York Times.
p. 21. Retrieved April 25, 2016. (Subscription required
^ Douglas 1970, p. 17.
^ Seigenthaler 1966, p. 474.
^ Caplan 1987, p. 10.
^ Terris 2015, pp. 4–5.
^ Navasky 1971, p. 280
^ Gormley 1997, p. 191.
^ Clayton 1992, p. 60.
^ Joseph, Daniel M. (October 7, 1965). "Prof. Cox Tells of High Court
Advocacy". Harvard Law Record. 41 (2). p. 7. Retrieved April 18,
2016 – via Heinonline.org. (Subscription required (help)).
^ Gormley 1997, pp. 231–32.
^ Gornley 1997, pp. 237, 239–40.
^ Gormley & 19978, p. 236.
^ Kutler 1990, pp. 318–319.
^ Emrey 1992, pp. 351–56.
^ Kutler 1990, pp. 329–330.
^ Lydon, Christopher (May 20, 1973). "Richardson and Justice: 'Where
you stand depends on where you sit'". New York Times Magazine.
p. 31, at 92.
^ Lewis, Neil A. (January 1, 2000). "
Elliot Richardson Dies at 79;
Stood Up to Nixon and Resigned In 'Saturday Night Massacre'". The New
York Times. p. B7.
^ Gormley 1997, pp. 86–87.
^ See Gormley & 200 1997, p. 200; "7 on Law School Faculty at
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^ Emery 1994, p. 357.
^ Kutler 1990, p. 331.
^ Kutler 1990, p. 332.
^ Emery 1994, pp. 356–57.
^ Kutler 1990, pp. 328–29.
^ a b Lewis, Anthony (October 21, 1975). "A Tribute to Archibald Cox".
Dayton Beach Morning Journal. p. 4A. Retrieved March 31,
2016. (From the New York Times News Service.)
^ Doyle 1977, p. 48.
^ Kutler 1997, p. 332.
^ Gormley 1997, pp. 272–73.
^ Ripley, Anthony (June 13, 1973). "Immunity Denied: But Sirica Grants
It in the Senate Inquiry". New York Times. p. 1. Retrieved April
22, 2016. (Subscription required (help)).
^ Dash 2002, p. 176.
^ AP wire service (May 26, 1973). "Cox Takes Over Watergate Case".
Beckley [W.V.] Post-Herald The Raleigh Register. p. 8. Retrieved
April 22, 2016 – via newspapers.com.
^ Gormley 1997, p. 257.
^ Silbert 1992, pp. 76, 100–01, 112–13.
^ Gormley, p. 257.
^ Doyle 1977, pp. 55–58.
^ Emery 1994, pp. 213–14.
^ Emery, pp. 325–26.
^ Emery 1994, pp. 341–42.
^ Doyle 1977, p. 57.
^ Doyle 1977, p. 52; Gormley 1997, pp. 261–62.
^ Doyle 1977, pp. 61–65.
^ "Thomas F. McBride, 74; Watergate prosecutor". Los Angeles Times.
November 5, 2003. Retrieved April 22, 2016.
^ Merrill, William H. (2008). Watergate Prosecutor. East Lansing,
Michigan State University Press.
^ "40 years after Watergate, lawyers involved reflect on political
scandal". ABA News. October 2, 2013. Retrieved April 22, 2016.
^ Gormley 1997, p. 262.
^ Doyle 1977, pp. 66–68.
^ Dash 2002, pp. 174–75.
^ Herbers, John (June 5, 1973). "Nixon-Dean Talks on Case Conceded by
White House". New York Times. p. 1. Retrieved April 22, 2016.
(Subscription required (help)).
^ Gormley 1997, pp. 274–77.
^ Gormley 1997, p. 278; Doyle 1977, pp. 91–92.
^ Rugaber, Walter (June 21, 1973). "A.C.L.U. Urges a New Watergate
Trial Charging 'All of Those Responsible'". New York Times. Retrieved
April 22, 2016. (Subscription required (help)).
^ Gormley 1997, pp. 280–83.
^ Hersh, Seymour M. (July 7, 1973). "Airline Discloses Illegal
Donation to '72 Nixon Drive". New York Times. p. 1. Retrieved
April 22, 2016. (Subscription required (help)).
^ Jensen, Michael C. (September 16, 1973). "The Corporate Political
Squeeze: Illegal Contributions Raise Morality Issue". New York Times.
pp. BF1, 2. Retrieved April 22, 2016. (Subscription required
^ Jensen, Michael C. (January 6, 1974). "Watergate Raises New Problems
of Giving and Getting for Businessmen". New York Times. Retrieved
April 22, 2016. (Subscription required (help)).
^ Holless, Everett R. (February 16, 1972). "Exclusive Coast Club Spurs
Gifts Of Millions for Nixon and G.O.P." New York Times. pp. 1.
20. Retrieved April 24, 2016. (Subscription required (help)).
^ Franklin, Ben A. (February 11, 1973). "Nixon's Attorney Tied to Fund
Role". New York Times. p. 29. Retrieved April 22, 2016.
(Subscription required (help)).
^ Emery 1994, pp. 368–70; Doyle 1977, pp. 92–93; Kutler
1990, pp. 368–70.
^ Kutler 1990, p. 382.
^ Doyle 1977, p. 97.
^ Doyle 1977, p. 96.
^ Doyle 1977, pp. 103–04.
^ Doyle 1977, pp. 92–99, 101–05.
^ Silbert 1992, p. 78.
^ Dolye 1977, pp. 105–06; Apple, R.W. (July 27, 1973). "Nixon
Contests Subpoenas, Keeps Tapes, Hearing Set Aug. 7 on Historic
Challenge". New York Times. pp. 1, 8. Retrieved April 24, 2016.
(Subscription required (help)).
^ Weaver, Jr., Warren (August 5, 1973). "An Unexpected Ploy Adds a
Question to a Dilemma". New York Times. p. 161. Retrieved April
24, 2016. (Subscription required (help)). ; Emery 1994,
^ Weaver, Jr., Warren (August 23, 1973). "Tape Case Argued in Federal
Court: Sirica Will Decide in Week". New York Times. pp. 1, 29.
Retrieved April 24, 2016. (Subscription required (help)).
^ Doyle 1977, p. 113.
^ Gormley 1997, pp. 305–06.
^ Weaver, Jr., Warren (August 30, 1973). "A Historic Ruling: President
First Since Jefferson Directed to Give Up Records". New York Times.
pp. 1, 21. Retrieved April 24, 2016.
^ Doyle 1977, pp. 114–15.
^ a b Weaver, Jr., Warren (September 5, 1973). "Appellate Court Orders
Speed-Up in Tapes Dispute: Slates Argument Next Week Without Waiting
for Filing of the President's Plea". New York Times. pp. 1, 18.
Retrieved April 24, 2016. (Subscription required (help)).
^ Doyle 1977, pp. 117–19.
^ a b Weaver, Jr., Warren (September 14, 1973). "Appellate Court Asks
Compromise in Tapes Dispute: Bids Nixon Voluntarily Yield Portions of
Recordings to Cox and Wright for Study". New York Times. pp. 1,
23. Retrieved April 24, 2016. (Subscription required (help)).
^ Kutler 1990, p. 333.
^ Kutler 1990, p. 363.
^ Doyle 1977, pp. 75–76.
^ Doyle 1977, p. 125.
^ Doyle 1977, pp. 120–22.
^ Doyle 1977, pp. 127–28.
^ Doyle 1977, p. 130.
^ a b Doyle 1977, pp. 131
^ Anderson, Jack (October 23, 1973). "Justice Faces True Test in
Rebozo Inquiry". Bangor [Me.] Daily News. Retrieved April 25, 2016 –
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^ Doyle 1977, pp. 130–31.
^ Doyle 1977, pp. 128–29, 136–37.
^ Doyle 1977, pp. 133–35.
^ Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) (en banc).
^ Oelsner, Lesley (October 13, 1973). "Judges rule 5-2: Historic
Decision Finds President Not Above Law's Commands". New York Times.
pp. 1, 20. Retrieved April 25, 2016. (Subscription required
(help)). Large excerpts from the opinion were printed by the
Times. "Excerpts From Opinion of Court of Appeals on Examination of
Presidential Tapes". New York Times. October 13, 1973. p. 21.
Retrieved April 26, 2016. (Subscription required (help)).
^ Kutler 1990, p. 401.
^ Emery 1994, p. 388; Richardson 1976, pp. 39–40; Doyle
1977, pp. 140–41.
^ Emery 1994, p. 388; Richardson 1976, p. 40.
^ Doyle 1977, pp. 143–45.
^ Doyle 1977, pp. 145–47.
^ Doyle 1977, pp. 149–50.
^ Doyle 1977, p. 122.
^ Doyle 1977, pp. 151–52.
^ Ripley, Anthony (October 18, 1973). "Ervin Panel Loses Suit for
Tapes". New York Times. pp. 1, 30. Retrieved April 28, 2016.
(Subscription required (help)).
^ Doyle 1977, pp. 153–54.
^ Doyle 1977, p. 157.
^ Doyle 1977, p. 158.
^ Doyle 1977, pp. 156–59.
^ Doyle 1977, p. 161.
^ Doyle 1977, pp. 166, 169.
^ Doyle 1977, pp. 170–71.
^ Doyle 1977, pp. 173–74.
^ "Text of Nixon's Statement on the Watergate Tapes". New York Times.
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^ Doyle 1997, pp. 172–73; Kutler 1990, p. 404.
^ Doyle 1977, pp. 173–77.
^ Doyle 1977, p. 174.
^ Heymann, Philip B. (November 2004). "Archibald Cox". Harvard Law
Review. 118 (1): 11, 13. Retrieved May 1, 2016.
^ AP wire service (October 15, 1973). "McGovern Would Delay Nixon
Impeachment". [Hagerstown, Md.] Daily Mail. p. 2 – via
^ UPI (October 20, 1973). "Senators Criticize Proposal". New Castle
[Pa.] News. p. 1 – via newspapers.com.
^ Doyle 1977, p. 178.
^ Doyle 1977, pp. 176, 178.
^ Gormley 1997, p. 348.
^ Doyle 1977, pp. 178–79, 180.
^ The press conference can be viewed in the CBS News
live broadcast. Excerpts of the remarks were published in "Excerpts
From Transcript of Cox's News Conference on Nixon's Decision on
Tapes". New York Times. October 21, 1973. p. 60. (Subscription
^ Gormley 1997, p. 350.
^ Doyle, p. 181.
^ Kutler 1990, p. 405.
^ Gormley 1997, p. 352.
^ Doyle 1977, p. 185.
^ a b c Sweeney, Louise (June 6, 1980). "Archibald Cox". Christian
Science Monitor. Retrieved May 4, 2016 – via ProQuest. (Subscription
^ Richardson 1976, p. 39.
^ Kutler 1990, p. 407.
^ Emery 1994, p. 400.
^ Genovese & Morgan 2012, pp. 72–73.
^ Sirica 1979, p. 130.
^ Emery 1994, p. 401.
^ Oelsner, Lesley (October 21, 1973). "Cox Office Shut on Nixon's
Order: F.B.I. Agents Impound Files and Personal Papers". New York
Times. p. 60. Retrieved April 28, 2016. (Subscription required
^ Kutler 1990, p. 406.
^ Gormley 1997, pp. 361–62.
^ Kutler 1990, p. 410; Gormley 1997, p. 362; Emery 1994,
^ Emery 1994, p. 402.
^ Gormley 1997, p. 362.
^ Emery 1994, p. 404.
^ Kutler 1990, p. 410.
^ Sirica 1979, pp. 167–80.
^ Emery 1994, p. 406.
^ Gormley 1997, p. 163.
Archibald Cox dies at 92".
Harvard University Gazette. June 3,
2004. Retrieved March 12, 2016.
^ Cox, Archibald (1987). The Court and the Constitution. Boston,
Massachusetts: Houghton Mifflin. p. 7.
^ Gormley 1997, pp. 393–94.
^ Gormley 1997, p. 394.
^ Sisson, Frank E. (February 14, 1975). "Paper Chase Finally Comes
Home". Harvard Law Record. 60 (3). p. 6. Retrieved May 1, 2016.
(Subscription required (help)).
^ Gormley 1997, p. 397.
^ Wadsworth, Charles Y. (December 1975). "President's Message:
Judicial Reform!". Massachusetts Law Quarterly. 60 (4): 336. Retrieved
May 1, 2016. Subscription required.)
^ Cox himself summarized the report in Cox, Archibald (March 1977).
"The Report of the Governor's Committee on Judicial Needs".
Massachusetts Law Quarterly. 62 (1): 23–28. Retrieved April 2, 2016
– via Heinonline.org. (Subscription required (help)).
^ Jordan, Charles (December 16, 1976). "Cox Judiciary Committee Nixes
Trial De Novo, Reworks Budget". Harvard Law Record. 63 (10).
pp. 1, 4. Retrieved May 1, 2016. (Subscription required
^ Swaim, Loring (November 27, 1977). "Court Reform Faces Uncertain
Future in House". Lowell [Mass.] Sun. p. E1. Retrieved May 2,
2016 – via newspapers.com. The continuation is on page E2.
^ Bird, Joan (October 29, 1977). "Cox Puts Case for Reform Before
State's Selectmen's Assn". Berkshire [Mass.] Eagle. p. 11.
Retrieved May 2, 2016 – via newspapers.com.
^ Flowers, J. Christopher (January 5, 1978). "Senate Stops Cox Panel's
Court Reform". Harvard Crimson. Retrieved May 2, 2016.
^ Hennessey, Edward F. (June 1978). "Annual Report of the Chief
Justice of the Massachusetts Supreme Judicial Court: The State of the
Judiciary". Massachusetts Law Review. 63 (3): 101–07, 101–03.
Retrieved May 2, 2016 – via Heinonline.org. (Subscription required
^ Hennessey, Edward F. (February 1979). "Third Annual Report of the
Chief Justice of the Massachusetts Supreme Judicial Court: The State
of the Judiciary". Massachusetts Law Review. 64 (1): 3, 8–9.
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^ "Cox Joins Legal Team for Indians". Portsmouth [N.H.] Herald.
February 2, 1977. p. 2. Retrieved May 2, 2016 – via
^ "Maine Indians settle land claims against U.S." National Institutes
of Health, Health & Human Services. n.d. Retrieved May 2,
^ P.L. 93-443, 88 Stat. 1263
^ Cox 1982, p. 397.
^ Gormley 1997, pp. e01 & 553 n. 34.
^ 424 U.S. 1 (1976)
^ Cox 1982, pp. 397–98.
^ 424 U.S. 257, 262-64 (White, J., dissenting).
^ For a discussion of the details of Buckley v. Valeo, see Cox 1982,
pp. 404–415; Levit, Kenneth J. "Campaign Finance Reform and the
Return of Buckley v. Valeo". Yale Law Journal. Retrieved May 2, 2016
– via Heinonline. (Subscription required (help)).
^ Gormley 1997, p. 401.
^ Gormley 1997, pp. 401–02.
^ Simmons, Vikki. "Friends of the Court". Black Law Journal. 3 (3):
245–248, 246. Retrieved May 2, 2016 – via Heinonline.org.
(Subscription required (help)).
^ Ogeltree 2004, p. 16.
^ 438 U.S. 265 (1978)
^ 438 U.S. at 315-20.
^ Ogeltree 2004, pp. 17–18.
^ Knight, Michael (November 28, 1978). "Kennedy Proposes a Black Man
and a Jewish Woman as Judges". New York Times. p. A16. Retrieved
May 3, 2016. (Subscription required (help)).
^ Gormley 1997, pp. 407–08. See also "Cox is Candidate for
Judgeship on the Federal Court of Appeals". New York Times. March 4,
1979. p. 29. Retrieved May 3, 2016. (Subscription required
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Carter to Shun Race". New York Times. p. B18. Retrieved May 4,
2016. (Subscription required (help)).
^ Gormley 1997, p. 411.
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^ Weaver, Warren, Jr. (July 2, 1980). "Group Supporting Reagan is
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Common Cause v. Schmitt, 455 U.S. 129 (1982). See "Major News in
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Appearances on C-SPAN
J. Lee Rankin
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