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Archibald Cox

Archibald Cox

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Archibald Cox, Jr., was an American lawyer and law professor who served as U.S. Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...

 under President John F. Kennedy
John F. Kennedy
John Fitzgerald "Jack" Kennedy , often referred to by his initials JFK, was the 35th President of the United States, serving from 1961 until his assassination in 1963....

. He became known as the first special prosecutor
Special prosecutor
A special prosecutor generally is a lawyer from outside the government appointed by an attorney general or, in the United States, by Congress to investigate a government official for misconduct while in office. A reasoning for such an appointment is that the governmental branch or agency may have...

 for the Watergate scandal
Watergate scandal
The Watergate scandal was a political scandal during the 1970s in the United States resulting from the break-in of the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C., and the Nixon administration's attempted cover-up of its involvement...

. During his career, he was a pioneering expert on labor law and also an authority on constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....

. The Journal of Legal Studies
The Journal of Legal Studies
The Journal of Legal Studies is a law journal published by the University of Chicago Press focusing on interdisciplinary academic research in law and legal institutions....

has identified Cox as one of the most cited legal scholars of the 20th century.

Early life and law career


Cox was the son of Archibald and Frances Perkins Cox. A native of Plainfield, New Jersey
Plainfield, New Jersey
Plainfield is a city in Union County, New Jersey, United States. As of the 2010 United States Census, the city's population increased to a record high of 49,808....

, he attended the Wardlaw School
Wardlaw-Hartridge School
The Wardlaw-Hartridge School is a private, nonsectarian, coeducational day school located in Edison, New Jersey, United States, serving students in pre-kindergarten through twelfth grade. It is commonly referred to as Wardlaw or W-H...

, and St. Paul's School. Cox graduated from Harvard College
Harvard College
Harvard College, in Cambridge, Massachusetts, is one of two schools within Harvard University granting undergraduate degrees...

 in 1934 and from Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...

 in 1937 where he was a member of Phi delta phi
Phi Delta Phi
Phi Delta Phi, ΦΔΦ, is the world's second largest legal fraternity. Phi Delta Phi is the second oldest legal organization in continuous existence in the United States and third oldest in North America...

 legal fraternity. He was a clerk for U.S. Judge Learned Hand
Learned Hand
Billings Learned Hand was a United States judge and judicial philosopher. He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit...

 of the U.S. Court of Appeals for the Second Circuit. After his clerkship, he joined the Boston law firm of Ropes, Gray, Best, Coolidge and Rugg, now known as Ropes & Gray. During World War II, he was appointed to the National Defense Board, and then to the Office of the Solicitor General.

After the end of World War II, Cox joined the faculty of Harvard University, where he taught courses in tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

s and in administrative
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...

, constitutional
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....

, and labor law. He was elected a Fellow of the American Academy of Arts and Sciences
American Academy of Arts and Sciences
The American Academy of Arts and Sciences is an independent policy research center that conducts multidisciplinary studies of complex and emerging problems. The Academy’s elected members are leaders in the academic disciplines, the arts, business, and public affairs.James Bowdoin, John Adams, and...

 in 1955. During the 1950s, he became an informal adviser and speech-writer for John F. Kennedy, who was then a U.S. senator
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

 from Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...

. Cox assisted Kennedy's campaign for President in 1960. In 1961, Cox joined the Kennedy administration as solicitor general. At a time when civil rights protesters were routinely chased with dogs and clubbed, he often appeared before the Supreme Court in support of their cause. Among the cases he was involved with were Baker v. Carr
Baker v. Carr
Baker v. Carr, , was a landmark United States Supreme Court case that retreated from the Court's political question doctrine, deciding that redistricting issues present justiciable questions, thus enabling federal courts to intervene in and to decide reapportionment cases...

, which set the constitutional standards for reapportionment; Heart of Atlanta Motel v. United States
Heart of Atlanta Motel v. United States
Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 , was a landmark United States Supreme Court case holding that the U.S. Congress could use the Constitution's Commerce Clause power to force private businesses to abide by the Civil Rights Act of 1964.- Background :This important case...

, which set a precedent by recognizing the Constitution's authorization for federal laws requiring desegregation of public accommodations for African-Americans; and South Carolina v. Katzenbach
South Carolina v. Katzenbach
South Carolina v. Katzenbach, 383 U.S. 301 is a United States Supreme Court case in which the Court rejected a challenge by the state of South Carolina to the preclearance provisions of the Voting Rights Act of 1965, which required that some states submit changes in election districts to the...

, which upheld the Voting Rights Act
Voting Rights Act
The Voting Rights Act of 1965 is a landmark piece of national legislation in the United States that outlawed discriminatory voting practices that had been responsible for the widespread disenfranchisement of African Americans in the U.S....

. In 1965, he returned to Harvard's law school. He remained a highly sought-after negotiator and mediator. He was chosen by the New York City school system to help settle a teacher strike in 1967, and by Columbia University to investigate riots on its campus in 1968. He served as a special investigator for the Massachusetts state legislature in 1972.

Watergate special prosecutor



On May 19, 1973, Cox took a leave of absence from Harvard Law School to accept appointment as the first Watergate special prosecutor. Cox's appointment was a key condition set by the leadership of the U.S. Senate for the confirmation of Elliot Richardson
Elliot Richardson
Elliot Lee Richardson was an American lawyer and politician who was a member of the cabinet of Presidents Richard Nixon and Gerald Ford. As U.S...

 as the new attorney general of the United States, succeeding Richard G. Kleindienst, who had resigned during the spring of 1973, as a result of the Watergate scandal. That summer, Cox learned with the rest of America about the secret taping system installed in the White House on orders from President Richard M. Nixon. During the next few months, Cox, the United States Senate Watergate Committee
United States Senate Watergate Committee
The Senate Watergate Committee was a special committee convened by the United States Senate to investigate the Watergate burglaries and the ensuing Watergate scandal after it was learned that the Watergate burglars had been directed to break into and wiretap the headquarters of the Democratic...

, and U.S. District Judge John J. Sirica struggled with the Nixon Administration over whether Nixon could be compelled to yield those tapes in response to a grand jury subpoena.
When Sirica ordered Nixon to comply with the committee's and Cox's demands, the President offered Cox a compromise: instead of producing the tapes, he would allow the Senator John Stennis (a Democrat from Mississippi
Mississippi
Mississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...

) to listen to the tapes, with the help of a transcript prepared for him by the White House, and Stennis would then prepare summaries of the tapes' contents. Cox rejected this compromise on Friday, October 19, 1973. On Saturday, October 20, 1973, Cox held a press conference to explain his decision.

That evening, in an event dubbed the Saturday Night Massacre
Saturday night massacre
The "Saturday Night Massacre" was the term given by political commentators to U.S. President Richard Nixon's executive dismissal of independent special prosecutor Archibald Cox, and the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus on October 20,...

 by journalists, President Nixon ordered Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...

 Elliot Richardson
Elliot Richardson
Elliot Lee Richardson was an American lawyer and politician who was a member of the cabinet of Presidents Richard Nixon and Gerald Ford. As U.S...

 to dismiss Cox.
Rather than comply with this order, Attorney General Richardson resigned, leaving his second-in-command, Deputy Attorney General William Ruckelshaus
William Ruckelshaus
William Doyle Ruckelshaus is an American attorney and, several times, U.S. government official. He served as the first head of the Environmental Protection Agency in 1970, was subsequently acting Director of the Federal Bureau of Investigation, and then Deputy Attorney General of the United States...

 in charge of the Justice Department. Ruckelshaus likewise refused to dismiss Cox, and he, too, resigned. These resignations left Solicitor General Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...

 as the highest-ranking member of the Justice Department; insisting that he believed the decision unwise but also that somebody had to obey the president's orders, Bork dismissed Cox. Upon being dismissed, Cox stated, "whether ours shall be a government of laws and not of men is now for Congress and ultimately the American people to decide." His successor as special prosecutor was Leon Jaworski
Leon Jaworski
Leonidas "Leon" Jaworski was the second Special Prosecutor during the Watergate Scandal...

.

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

Ultimately, on August 8, 1974, after the U.S. Supreme Court voted by 8 to 0 to reject Nixon's claims of executive privilege
Executive privilege
In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government...

 and release the tapes (with then Associate Justice William H. Rehnquist recusing himself because, as an assistant attorney general during Nixon's first term, he had taken part in internal executive-branch discussions of the scope of executive privilege), Nixon announced his decision to resign as president.

Post-Watergate career


After Nixon's resignation, Cox became chairman of Common Cause
Common Cause
Common Cause is a self-described nonpartisan, nonprofit lobby and advocacy organization. It was founded in 1970 by John W. Gardner, a Republican former cabinet secretary under Lyndon Johnson, as a "citizens' lobby" with a mission focused on making U.S. political institutions more open and...

, a major public-interest advocacy organization. He also became the founding chairman of the Health Effects Institute
Health Effects Institute
The Health Effects Institute is a independent, non-profit corporation specializing in research on the health effects of air pollution. It is headquartered in Boston, Massachusetts, USA....

.

Cox also returned to Harvard Law School, where he taught constitutional law and a seminar on the First Amendment for many years. Before he had gone to Washington in 1973, he had a reputation as a tough and sometimes harsh teacher, but after his return, he had a reputation as a humorous, considerate, and gentle teacher who won the admiration and affectionate regard of his students. After he retired from Harvard, he received a special appointment to the faculty of Boston University School of Law
Boston University School of Law
Boston University School of Law is the law school affiliated with Boston University, and is ranked #22 among American law schools by US News and World Report magazine. It is the second-oldest law school in Massachusetts and one of the first law schools in the country to admit students regardless...

. In 1974 he spent a year at the University of Cambridge as the Pitt Professor of American History and Institutions
Pitt Professor of American History and Institutions
The Pitt Professorship of American History and Institutions was established on 5 February 1944 from a sum of £44,000 received from the Syndics of the Cambridge University Press in 1943 and augmented by a further £5,000 in 1946...

.

Cox also continued his career as an expert appellate advocate. In 1976, Cox argued Buckley v. Valeo
Buckley v. Valeo
Buckley v. Valeo, 424 U.S. 1 , was a case in which the Supreme Court of the United States upheld a federal law which set limits on campaign contributions, but ruled that spending money to influence elections is a form of constitutionally protected free speech, and struck down portions of the law...

before the Supreme Court; at issue in this case was the constitutionality of post-Watergate legislation establishing public financing for presidential election campaigns. The Court upheld most of the provisions of the campaign finance law, giving Cox a significant victory. During 1977 and 1978, Cox also argued the case of Regents of the University of California v. Bakke
Regents of the University of California v. Bakke
Regents of the University of California v. Bakke, was a landmark decision of the Supreme Court of the United States that ruled unconstitutional the admission process of the Medical School at the University of California at Davis, which set aside 16 of the 100 seats for African American...

before the Court, defending the University of California at Davis medical school's affirmative action system of admissions against constitutional challenge. The Justices divided, with four voting to end the system as invalid under the Civil Rights Act of 1964 without any need to reference the constitutional issue, and four voting to uphold affirmative action as constitutional; Justice Lewis Powell cast the deciding vote, referencing the constitutional issue and holding that in some cases race could be deemed a valid factor in admissions to institutions of higher education.

In 1979, when a vacancy opened on the U.S. Court of Appeals for the First Circuit (which includes Cox's home state of Massachusetts), Senator Edward M. Kennedy proposed Cox for the vacancy. This proposal from the senior senator of the state most affected by the choice of judge ordinarily would have won Cox the appointment, but the administration of President Jimmy Carter
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...

 resisted the choice since Cox had not supported Carter for President, and ultimately Cox was not appointed to the vacancy.

Among Professor Cox's many honors was his being made, in 1991, an honorary member of the Order of the Coif
Order of the Coif
The Order of the Coif is an honor society for United States law school graduates. A student at an American law school who earns a Juris Doctor degree and graduates in the top 10 percent of his or her class is eligible for membership if the student's law school has a chapter of the...

. Professor Cox also received the Paul Douglas Ethics in Government Award and the Thomas "Tip" O'Neill Citizenship Award. In 1997, Cox was the subject of a biography entitled Archibald Cox: Conscience of a Nation by Ken Gormley. The book focuses on Cox's long and distinguished career as a public servant.

On January 8, 2001, Cox was presented with the Presidential Citizens Medal
Presidential Citizens Medal
The Presidential Citizens Medal is the second highest civilian award in the United States, second only to the Presidential Medal of Freedom. It is awarded by the President of the United States, and may be given posthumously....

 by President "Bill" William Jefferson Clinton.

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

Death and legacy


Cox died at his home in Brooksville, Maine
Brooksville, Maine
Brooksville is a town in Hancock County, Maine, United States. As of the 2010 census, the town population was 934. It contains the villages of North Brooksville, South Brooksville , West Brooksville, Brooksville Corner, and Harborside .-History:It was first settled by John Wasson, Samuel Wasson and...

, of natural causes. Sam Dash, chief counsel to the Senate Select Committee to Investigate Campaign Practices during the Watergate scandal
Watergate scandal
The Watergate scandal was a political scandal during the 1970s in the United States resulting from the break-in of the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C., and the Nixon administration's attempted cover-up of its involvement...

, died the same day.

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

Cox was the great-grandson of William M. Evarts
William M. Evarts
William Maxwell Evarts was an American lawyer and statesman who served as U.S. Secretary of State, U.S. Attorney General and U.S. Senator from New York...

, who defended President Andrew Johnson
Andrew Johnson
Andrew Johnson was the 17th President of the United States . As Vice-President of the United States in 1865, he succeeded Abraham Lincoln following the latter's assassination. Johnson then presided over the initial and contentious Reconstruction era of the United States following the American...

 during his impeachment hearing and became Secretary of State
United States Secretary of State
The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...

 in Rutherford B. Hayes
Rutherford B. Hayes
Rutherford Birchard Hayes was the 19th President of the United States . As president, he oversaw the end of Reconstruction and the United States' entry into the Second Industrial Revolution...

' administration. He was also a direct descendant of Roger Sherman
Roger Sherman
Roger Sherman was an early American lawyer and politician, as well as a founding father. He served as the first mayor of New Haven, Connecticut, and served on the Committee of Five that drafted the Declaration of Independence, and was also a representative and senator in the new republic...

, a Connecticut signer of the Declaration of Independence
Declaration of independence
A declaration of independence is an assertion of the independence of an aspiring state or states. Such places are usually declared from part or all of the territory of another nation or failed nation, or are breakaway territories from within the larger state...

.

Further reading

  • "Cox and Nixon" Time. October 29, 1973.
  • Gormley, Ken. Archibald Cox: The Conscience of a Nation New York: Perseus Books, 1999. ISBN 0738201472

External links