Supreme Court nominee Elena Kagan has worked with some of the top legal minds in academia. She's served under presidents Bill Clinton and Barack Obama and was mentored by a judicial icon: former Justice Thurgood Marshall.
And yet, looking at the scope of Kagan's public remarks and writings, the most prominent influence on her legal career seems to have been none of the aforementioned luminaries but, rather, an individual she met just once, during the last year of his life.
Archibald Cox cuts an imposing figure for those who have worked at the intersection of politics and the law. Best known for his role as the first special prosecutor for the Watergate scandal -- in which he was blithely dismissed by order of President Richard Nixon -- his story has natural appeal to Kagan. Both served in the role of Solicitor General (he under John F. Kennedy and Lyndon Johnson, she under Obama). Both, likewise, have roots at Harvard Law School where Kagan served as Dean and Cox as a professor.
But the extent to which Kagan gravitated to Cox's history and character is remarkable in its obsessiveness. And in a small way, it provides a window into the Supreme Court nominee's view of proper judicial conduct, the rule of law, and the overreaches of the Bush administration.
Cox makes frequent appearances in Kagan's speeches and notes, most prominently in the addresses (commencement and otherwise) that she gave at various academic institutions. Kagan described herself as being "obsessed with" the Watergate scandal, despite being 13-years-old at the time. As to Cox's role in the saga, she said she followed it with "painstaking detail."
At a 2004 graduation speech in front of the graduates of Harvard Law School, Kagan took the opportunity to acknowledge Cox's death -- which had occurred just a week prior -- before praising his career as a "truly great public servant." Three years later, again addressing Harvard Law grads, Kagan's commencement address centered on Cox -- this time with skepticism that his story would resonate for students like it had for her.
As I talked about Cox then and on other occasions since, I wondered whether his example seemed too remote, too distant in time - really too historic - to speak vividly to students of this generation. Indeed, I wonder now, as I look out at this audience, whether his story resonates less with you graduates than with the parents and grandparents sitting beside you. The story of Archie Cox - the story of a humble Harvard law professor (and you thought that was an oxymoron!) facing off against a President - that is your parents' rule of law story, the one they lived through and learned from and kept as a reference point for what law meant and how it mattered in a nation.
As Dean, Kagan frequently made Cox a part of the school fabric. In her early months at the post, she brought him to Harvard Law School (the one time the two met) for the unveiling of his portrait. The news account that day described her as follows:
Quite jovially Dean Kagan noted that Cox's greatest achievement might very well have been his appearance in the political comic strip Doonesbury, a distinction that immortalized his prominence in America's political and legal history.
When Cox passed away, Kagan spoke at the memorial service. "Alone among the speakers today," she started, "I didn't know Archie Cox."
Archie Cox's life stands for the primacy of the rule of law - the practice of resolving disputes by reference to common norms rather than by power and violence. Archie Cox personified that value; he taught not just me, but a nation that it would be strong only to the extent that law was its foundation -- only to the extent that law would be respected above all. That vision lies behind -- and gives meaning to - just about everything that good law schools and that good lawyers do. It's what makes the legal profession so important and potentially so noble.
But the most notable use of Cox's story came when Kagan was granted a distinguished speaking role before West Point cadets in October 2007. In an address that focused, primarily, on the Constitution and the rule of law, the Harvard Dean used the legal crises that surfaced in Watergate to level harsh critiques at various lawyers within the Bush administration (most notably chief counsel, Alberto Gonzalez).
The story of Archibald Cox demanding that Nixon hand over audio-tapes of his White House conversations, she said, had remarkable parallels to the dramatic scene of a hospital-ridden Attorney General John Ashcroft denying the requests of White House Chief of Staff Andy Card and Gonzalez to authorize the administration's warrant-less domestic spying program.
"It's an extraordinary story really. The standoff between two powerful sets of people, the hospital bedside scene - all of this makes it seem as though it comes from the movies. And yet it happened," said Kagan.
Lawyers all over: What is striking is that there are lawyers on both sides of the story at each of its stages. One lawyer who issues expedient and unsupported legal opinions to justify whatever his clients (in this case, high officials in the White House) want to do. And another lawyer who questions those opinions on the basis of precedent and principle and insists, even as he tries his hardest to serve his client's legitimate goals, on steadfast adherence to legal restraints. A third lawyer who attempts to pressure a sick and sedated man to declare something legal that he thought was not. And the final lawyer, that same hospitalized man, who refuses to bend under this pressure notwithstanding his illness, his own career goals and ambitions, and his appropriate loyalty to the President. This is a story, to put it bluntly, of some lawyers who failed to respect the rule of law and of other lawyers who, Archie Cox-like, stood up for and vindicated it - who understood that law represents a set of commitments that transcend and trump what is expedient at the moment.
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