Robert Bork was the United States Solicitor General under President Gerald R. Ford and President Richard Nixon. He served as Acting Attorney General and was appointed to the United States Court of Appeals for the District of Columbia Circuit by President Ronald Reagan. After leaving the bench, he became a Senior Fellow at the American Enterprise Institute and a fellow at the Hudson Institute.
Robert Bork was interviewed for the Gerald R. Ford Oral History Project on August 27, 2010 by Richard Norton Smith.
Smith: First thing. Did you come into the Justice Department at the beginning of the Nixon administration?
Bork: No, I came in June 26th, 1973.
Smith: Oh gosh. Okay.
Bork: I was just in time for the explosions.
Smith: What were you doing before?
Bork: I was teaching at Yale. And when Nixon offered me the job as Solicitor General he said, “The politicians have had their turn. Now we’re going to let the professors have their turn.”
Smith: Now, who was attorney general at that point?
Bork: Well, Richardson was attorney general. He’d just become attorney general and I don’t think he was too pleased about it.
Bork: He might’ve preferred to be the secretary of defense.
Smith: That’s an interesting observation. Let me back up. We did an interview with a man named Jerry Jones who, early in ’73, was fixing the personnel office at the White House for Haldeman. He got a call one day from Haldeman saying, “The President wants to know how many people work for the Vice President.” And Jones did some mental arithmetic and said, “About 50.” Haldeman said, “Fine. We want undated letters of resignation from all of them.” Now, this was before Haldeman left, obviously, so it’d be before April of ’73. It raises the question: Did the White House know in advance, could they have known that early, that there was an investigation of the Vice President going on in Maryland? When you arrived at the department was it public knowledge yet?
Bork: Oh, no. No, no. The first I heard of it was when Al Haig called me and asked me to resign as solicitor general and become Nixon’s chief defense attorney. And, as part of his persuasive pitch, he told me the Vice President was on the take, which was kind of a shock, I might say. But I had just enough sense to ask for twenty-four hours to think it over and after twenty-four hours, I knew I didn’t want the job. I began talking about it. I had to see the tapes and listen to the tapes and Haig said, “You can’t.” He said, “This President feels so strongly about the institution of the presidency that before he hands the tapes over to anybody, he’d burn them first and then resign.” I started to say, “Well, in that case, why doesn’t he burn them right now?”, but I had a vision of him burning the tapes in the Rose Garden, saying, “We’re doing this on the legal advice of the solicitor general.” So, I did not make that statement.
Smith: That’d be quite a niche in history.
Bork: But, anyway, that’s how I first heard about Agnew. But, you don’t want my history.
Smith: Well, the background to Ford’s becoming vice president is really significant because the Wall Street Journal went with the story; I think they broke the story. It was in August of ’73, so it would’ve come very shortly after you began work at the department?
Bork: Well, yeah, I wrote the brief against Agnew. He claimed he was immune from prosecution.
Smith: As vice president.
Bork: Yeah, and I wrote the brief with two assistants against him and he quit. On this timeline business, when did I write that brief?
[Off camera]: I’m not sure. It might be in the book.
Bork: It is in the book. I’m just not sure. Certainly it was not public knowledge when I heard about it.
Smith: Did Richardson like the job even less once that landed on his lap?
Bork: Oh, sure. Who wants that? Agnew, of course, was a character who had made enemies everywhere as part of his job as a hatchet man for Nixon.
Bork: See, Agnew said he wanted to see me at the reception line the day of the inauguration. As I went through, Agnew was there and he said, “I want to see you.” I didn’t know the man. I figured out, and I’m pretty sure it was accurate, that he was trying to put together a team for his own run for the presidency. But then, when the time came to meet with him, I still didn’t know about his being on the take, but I went to the meeting and he had nothing to say. Seemed a bland meeting in which, I think, the exciting part was when he handed me a photograph they’d just taken of the two of us sitting at his desk. It’s amazing what they quiet the troops with.
Smith: Publically, at least, it seemed to be this was the norm in Maryland. This was how politics operated.
Bork: Well, sure, but they got _____ Max and if you look at the pay scale, you can see why they did it. I think the governor made $12,000 per year or something like that.
Bork: So, you’re forced into graft if you’re going to keep the job.
Smith: And, was he continuing to take money as vice president?
Bork: Yeah. He wasn’t earning the money, but he was getting paid what was due to him under the bribe. It was being handed to him in his office in the White House. And there was some discussion about whether or not to indict him because the claim of immunity was taken seriously by some people. Richardson and I went over and argued with the President about it. There’s no need to go into that because it has nothing to do with Gerald Ford.
[Off camera]: You haven’t actually included any dates in the book as to when you began the proceedings.
Bork: Well, but there should be a date at the end of the brief.
Smith: I’m just curious. Was Nixon genuinely surprised, appalled?
Bork: He seemed surprised. I wouldn’t say he was appalled. I mean, how can you be appalled in this town? He seemed surprised and felt sorry for Agnew because he said, “He always did everything I asked him to do.” But he finally agreed that he had to indict him.
Bork: Well, there was really no choice. For one thing, if you didn’t indict Agnew, and everybody’s sworn to silence about it, it wouldn’t do any good because they’re going to try those contractors in Baltimore who paid the bribes. So Agnew’s name would be all over the front page of the papers whether or not he was indicted. So, there was political damage to the administration either way.
Smith: So, did Richardson handle the negotiations, for lack of a better word, with the vice president?
Bork: I’m not sure whether it was Richardson or Haig. They both spoke as if they had done it. Haig spoke of a need to decouple the proceedings against Nixon in the Senate impeachment from the criminal charges against Agnew. Elliot did, too, because he said that the country wasn’t ready to have him as president be on trial in the Senate for impeachment and a vice president be on trial in the criminal courts simultaneously. It would leave a bad impression.
Smith: Was there any dissent within the department? Or feeling that Agnew was let off?
Bork: I don’t know. My initial feeling was that he was let off, but when they explained to me this scenario with the two proceedings going forward simultaneously, I began to see their point.
Smith: So Agnew is gone, and very shortly after that; I mean, it’s astonishing when you look back, it was, I think, within two days that Ford is nominated to become vice president. Had you had any contact with him at all before then?
Bork: Yeah, but it was casual, nothing substantive. I was acting attorney general when he was nominated and people in the Senate committee wanted all the papers. They always do. And I was reluctant to turn them over, but I was dealing from a weak hand. They had every right to get the papers and I didn’t have any reason to stop it. But I turned them over and one of the senators called me up and said, “You needn’t worry. It’s the dullest reading you’ve ever seen.”
Smith: Was this the FBI investigatory material? What papers were we talking about?
Bork: I think these were Ford’s papers. But he said he couldn’t stay awake reading the thing. There wasn’t a scandal in sight.
Smith: Pretty squeaky clean. By the way, I’d be interested in your opinion, I realize you weren’t involved in it, but you certainly were more than an informed observer. His attempt to impeach or at least start impeachment proceedings against Justice Douglas, which many people interpreted as pay back for the rejections of Hainsworth and Carswell. Would a Supreme Court Justice today be able to conduct himself as Justice Douglas did then and not have a problem?
Bork: Yeah, you mean having a bad temper and so forth?
Smith: Well, I mean, the consulting fees, I think, that he was receiving from the foundation—?
Bork: That was to fire Cox.
Smith: But Douglas had a relationship, I thought, with another—
Bork: Maybe he did, but I’m not aware of it.
Smith: But I think what offended Ford, to be honest, was the articles that he [Douglas] wrote for Evergreen. I mean, that is what offended Ford. He thought it was an inappropriate, quasi-pornographic venue for a justice of the Supreme Court.
Bork: Well, he was right about that, but the political reality is, you can’t get them out of office on those grounds. I used to say that the case for impeaching Douglas was impeccable, but you couldn’t make it.
Smith: That answers my question perfectly. Let me ask you. Let’s jump ahead to the Saturday Night Massacre because we’ve been told by people who were in the department that one person said point blank that you’d never forgiven Elliot Richardson for how he conducted himself.
Bork: I had never?
Smith: Someone said that and I just wanted to give you an opportunity to respond to that.
Bork: I wouldn’t say that in those terms. I was disappointed in him for awhile, because he, for awhile, didn’t mention the fact that he and Ruckelshaus agreed I should do it. And, I remember Elliot called me us and asked me if he could use the department’s auditorium. It seemed kind of silly because I was acting attorney general and he was out. So, I said, “Yeah, but would you mind mentioning that you and Ruckelshaus thought I should do this?” He said, “I will if it comes up.” Well, it never came up. I was a little irritated by it, but then later on he became much more helpful. I think once his presidential ambitions were shot—
Smith: He had presidential ambitions?
Bork: Oh, God, yes. Who doesn’t in this town?
Bork: He did, but I think he testified in the Senate in my confirmation hearing. He said he had asked me to do it, to fire Cox, and stay on.
Smith: The White House at least believed, I mean, Haig said this very publicly – to back up – they believed that they had an understanding with Richardson to fire Cox. Were there discussions about this before it transpired?
Bork: Elliot came back from the White House that night just before I went over and said the one thing he was sorry about was perhaps he hadn’t made it plain to the President that he couldn’t fire Cox. And, indeed, he couldn’t. He was sworn on that charter he gave Cox to fire him only for cause and there was no cause. A little bad taste here and there, but no cause. But Richardson seemed to recognize he’d let Nixon get caught by surprise and Haig, of course, insists that it was Richardson’s idea to give Cox an order. And somebody asked him, “What will Cox do?” “He’ll resign.” Why he would resign? I don’t know. I wish I’d been at that meeting as I was at the Agnew meeting because I would’ve asked that question, “What happens if Cox doesn’t resign?” Nobody thought of that.
Smith: Was the White House guilty of wishful thinking in convincing itself that Richardson would go ahead and fire Cox?
Bork: I don’t know. Maybe so to some degree, but Haig’s version of it was that Richardson said that Cox would be fired if he didn’t do something. But Richardson denied that. And I don’t have any way of judging the thing except my estimate of the two men.
Smith: What would that lead you to conclude?
Bork: I owe each of them something I don’t want to talk about.
Smith: Okay. Fair enough. Where was Ruckelshaus in all of this?
Bork: He was involved in all of the discussions, but did not take a strong position except when Haig tried to get him to fire Cox. He said he wouldn’t do it.
Smith: Which leaves you.
Bork: Yeah, I was third in line by department of regulations, but there’s nobody after me in succession. So, if I left, the department would’ve been headless and I think there would’ve been mass resignations, because who in the hell in the department is going to take that job after three resignations?
Bork: One of the senior section heads said, not to me, but said to somebody else that I had saved the Department of Justice that night because it would’ve flown apart. I think what would’ve happened if I hadn’t done it would be that Nixon would have to appoint somebody from outside as acting attorney general and the most likely candidate would be Fred Buzhardt.
Bork: A knife fighter if ever there was one.
Smith: And the guy who had been listening to the tapes.
Smith: Mel Laird told us that when Laird came into the White House, rather reluctantly, to lend a hand to the defense – Fred Buzhardt had been his legal counsel at the Pentagon – and Fred Buzhardt called Laird about a month after he started back at the White House and cautioned him to be very careful because Buzhardt had been listening to the tapes. And he said, “The President’s in this up to his neck.” That is Laird’s version of what he was told by Buzhardt. Haig told us, because I assumed Haig had listened to the smoking gun tape, and Haig said, no, he never did. He said, “Fred Buzhardt gave me some very good advice, which was never be alone in a room with a tape.” So, there you have it. But all roads lead back to Fred Buzhardt.
Bork: Well, Buzhardt was rather odd. I remember he said at one point, “What’s all the fuss about? People leave the federal service every day.” So, Cox left the federal service.
Smith: Ford becomes vice president. Did you have any contact with him during that period before he became president?
Bork: Yeah, I had contact with him in the sense that you know the guy and you sort of say ‘hi’ when you pass, but that was about it. And then, of course, when he was up for vice president and the question of his papers came up, I think I cleared that with him. But I had more to do with him when he was president than I did when he was vice president.
Smith: Quick question before we get to the presidency. When the Supreme Court came down with the unanimous ruling on the tapes, was that the death knell of the Nixon presidency?
Bork: Well, there’s so many knells going off around there that it’s hard to say which one was the death knell.
Smith: We’ve been told by a couple sources who were with the President at the time that the initial reaction was, can we defy the Court?
Bork: Haig called me up at that point and said, “We’re thinking about not obeying the order,” and I said, “That is instant impeachment if you do that.” And they didn’t do it. I don’t know why they didn’t do it. Whether my opinion had any influence or not, I don’t know. But I was convinced that you don’t defy the Supreme Court, particularly you don’t defy it when the Supreme Court is riding high and your fortunes are pretty low.
Smith: Right. Ford becomes president August 9th. What was the first contact you had with him?
Bork: I don’t remember.
Smith: Was there any discussions of the pardon? Were you part of any discussion with anyone before the Nixon pardon?
Bork: The Nixon pardon caught me by surprise.
Smith: It did?
Bork: I thought it was the right thing to do, but I thought he could’ve led up to it in a way to prepare the public for it. As it was, he dropped it like a bomb on them.
Smith: In the supercharged climate of the time, how could he have prepared the public and the political community for it?
Bork: Well, I think he’d have to get people to engage in an argument as to whether the president should or shouldn’t be pardoned. But, as it was, there had been no discussion, I don’t think, outside the White House maybe. And I was driving in a car up in New Haven going to visit a friend of mine who was dying, and when the news came on over the radio, I damn near ran the car into a ditch. It caught me by complete surprise. And you don’t want to do that. It may have cost Ford the presidency.
Smith: It’s interesting. Mel Laird told us he had a plan. He loves Ford, but he said the same thing. Laird thought he could bring a bipartisan delegation from both houses of Congress at the right time to, in effect, petition the President to grant a pardon. It’s an interesting theory. I just wonder whether, again, in the atmosphere of the time—
Bork: Whether you could get five people from each party.
Bork: I think if I were a congressman and were asked to participate in that thing, I’d say, “I’m terribly busy. I’ll see you around.”
Smith: You have a new attorney general. Bill Saxbe becomes attorney general. He was a bit of a character, wasn’t he?
Bork: I like to believe he was a character and a half. I first met him when I guess I went over to his Senate office. My recollection of that is not too clear, but he came over to the Department of Justice to be shown around and I was the senior guy, so I showed him around. And I quickly decided I didn’t want to spend too much time in his presence because he kept a coffee can with the lid removed on the floor between his feet and he chewed tobacco and spat into the can. Actually, he drooled into the can and once you see that, you didn’t really want to go back. I was in there sitting to his left and then we brought in the division heads to meet him, I was a senior man, I was supposed to be going first. I wouldn’t go in first, because if I went in first, I’d end up sitting where I could see this vision of loveliness. So, I didn’t. I went in last and I watched the guy who was sitting where he got a good view of the tobacco drooling episode and he was not happy.
Smith: Presumably, that was not a custom that Ed Levi continued.
Bork: No, not at all. Saxbe, I don’t think, had much to do with anything. I remember Larry Silverman claimed that when he was deputy attorney general – you could never get a hold of Saxbe because he was off someplace – and when it came to a tough decision, he’d said, “This is a call the attorney general has to make.” And he would go out of the office and down the hall and into the bay for the elevators and smoke a cigarette and come back and say, “The attorney general says…” and he went with it.
Smith: What kind of contact did you have with Ford during his presidency?
Bork: Well, a couple that were substantive. One was Levi wanted to clean up the practice of surveillance of US citizens and he put me in charge of that. So I spent a lot of time with the CIA and the NSA and so forth. NASA. But that was warrantless wiretapping, you understand.[Break in conversation, taping stopped; when it resumes, the subject is the Saturday Night Massacre.]
Smith: Did you go to the White House that night?
Bork: Yeah. Talked to Nixon.
Smith: What was his mood? I mean, was he business-like?
Bork: He was very wistful. He hadn’t planned on losing his deputy attorney general.
Smith: Was there anger?
Bork: No. Well, he was angry with Ruckelshaus.
Smith: You were talking about the wiretapping.
Smith: Did it come as news to you how extensive it was?
Bork: Yeah, in fact, shortly after I became acting attorney general, my secretary rang through and said, “Two men from the FBI are here to see you.” I thought, “Oh, my God. What have I overlooked?” All my free floating anxieties came to a point, but they came in and they explained about this warrantless wiretapping. They’d broken into buildings and placed bugs, all without a warrant. And I asked them why they didn’t even get a warrant. He said, “Well, you’d have to get one for each of the areas where they’re taping somebody.” They just described to me the district court judge to whom they handed the classified documents – some of some real sensitivity, and this guy, to show what a big deal he was, read them aloud in a courtroom. So they were disinclined to rely upon district court judges after that.
Smith: Did it make you uncomfortable?
Bork: Oh, yeah. It made every attorney general who came up against it uncomfortable.
Smith: Including Richardson?
Bork: Yeah, and Levi. Anyway, when Ford was president, we wanted to protect him from God knows what because of the warrantless wiretaps, we hit on the strategy of controlling strictly the access to the wiretap products, so that only people with a real need to know could see it. Before that, those transcripts were just floating around the administration. I remember one of the Soviet ones. Our folks were wiretapping the Russian Embassy and at night there’d be blips which was a small message, so condensed that it had to be unraveled. That worried us in a way, because we didn’t know what on those blips, that it could be Senator Kennedy told us he says to do this and that and the other thing to do with the Ford administration or something, I don’t know. In effect, we were listening to Americans who weren’t targets in any usual sense. That made us nervous, so we had gone on with the wiretaps and surveillance. We didn’t like it and me and Levi talked to Ford about it and arranged that Ford would not see anything of that sort, which was the best we could do. And it worked pretty well. The ACLU, of course, raised a stink that we were invading citizen’s privacy by listening to the Russians. But that didn’t catch on very much.
Smith: What kind of attorney general was Ed Levi?
Bork: I don’t know if you know that I go back a long way with Levi.
Smith: I did not know that.
Bork: Well, he was my first law school professor and my last attorney general. But, he was a very thoughtful guy who sweated over decisions. For my taste, he was a bit too timid, but only a bit, and I’d prefer that to the alternative. For example, the Socialist Labor Party had a platform that specifically called for violence in the service of revolution and I thought that was worth having somebody listen to them, but he didn’t think so.
Smith: He and Ford would appear at first blush to be very different.
Bork: They were. Levi was a very fast mind and a very subtle mind and Ford was a straight ahead, off tackle type of guy. But Ford was always terribly honest with Levi and Levi admired him for that. They got along beautifully.
Smith: Was part of Levi’s job to basically make certain that the Justice Department was out of politics?
Smith: And that the public perceived it to be out of politics?
Bork: That’s right. But he was a little more subtle than that. That is, he could’ve come in and started firing people right and left for having confrontations and he didn’t. He sat down with Clarence Kelly from the FBI and chewed over the problems and he got what he wanted by process of reasoning. And he had sort of a special panel consisting of Dick Thornburgh, because he was head of the criminal division, Scalia, and me. They had a tough case about whether to put a hearing device into a Russian photocopier. He called and asked us together for an opinion. And indeed one of the things I most admired about him is he refused to indict a guy who had been in the CIA and had done everything we expected the CIA to do in that era, but now mores were changing. Thornburgh kept saying, “We can indict him. We have the evidence to indict him,” but that wasn’t quite enough for Levi and he called his group together, plus a friend, old law school professor from Columbia, and had a long discussion and decided not to indict him because the guy was doing what we expected him to do. And, as I said at the time, “One way to establish a new standard of conduct is to burn somebody who was living by the old standard.”
Smith: In this town, a very popular method, too.
Bork: Well, yeah, but I was advocating burning people.
Smith: Understood. How would you characterize the different relationship between the Nixon White House and the Justice Department and the Ford White House and the Justice Department? I mean, is Ed Levi the answer to that question?
Bork: No, not entirely. Elliot deserves some credit for resisting some of the worst impulses of the Buzhardt types. And I deserve some credit in my own mind, at least, for the two and a half months I was acting attorney general and before that. No, before, it was a rough, tough crowd who took pride in being hard and that no longer worked when they were replaced.
Smith: The replacement for Justice Douglas was, of course, John Paul Stevens. Were you involved in that process?
Bork: Yeah, but more as a spectator. I think one night about five or six of us were invited to the White House with our spouses and Ford was to show up. Well, he came in a little bit late because he had a private plane and Betty Ford was kind of out of her mind. She wasn’t out of her mind. She looked doped. But, what it was, I finally figured out, was a chance for Ford to meet all the people – to meet all the nominees – to take Douglas’ place. And one of my happiest memories of that evening is watching Ford dance to the tune of “Bad, bad, Leroy Brown, baddest man in the whole damn town. Meaner than a junkyard dog,” and that was the President bounding around to that music. You’ve been over the fact that he was athletic, but due to one misstep on an airplane, he got the reputation from the comics for being a dodo, which is unfair.
Smith: How would you characterize his intelligence?
Bork: Above average.
Smith: I spent time enough in the Midwest to know, there are people on both coasts who think that because Midwesterners talk slow, they think slow. I wonder whether there’s a little bit of cultural bias. Ford was seen as this vanilla congressman from West Michigan who’d never really been a national player, and who certainly wasn’t an eloquent speaker.
Bork: I think there was some of that. Although he seemed to be somewhat slow, oddly enough that served him well because it gave a certain feeling of solidity and you tended to think that when you’re dealing with him, you’d better deal correctly without chicanery.
Smith: I take it from what you said, reading between the lines, that your name was among those bandied about for the vacancy?
Bork: Oh, yeah. Nixon was going to put me on the court when suddenly that got derailed. No, I’d been bandied about in every administration, including Jimmy Carter’s. It’s the funniest thing because Everett Bennett Williams wrote Jimmy Carter to put me on the Supreme Court. It was one of the silliest notes ever. No Democrat would put me on the Supreme Court. I don’t know why Williams thought he might, but he did.
Smith: Didn’t President Ford appear with you at your confirmation?
Smith: How did that come about?
Bork: I don’t’ know. Somebody said, “Would you introduce me?” and it was on Ford.
Smith: Wasn’t he involved with AEI at that point? Was that a point of contact at all?
Bork: No, I don’t think so. I don’t recall that the relationship was all that close, but somebody asked him to do it and he agreed to do it. And, who else was there? There were four people who introduced me.
Smith: Was the theory in the White House that, having Ford do it, would in effect take away the aura of the Saturday Night Massacre? Was that the reasoning?
Bork: I don’t know. When I was up for the court, I never had any impression that there was any theory.
Smith: Okay. Did you stay at Justice through the Ford administration?
Smith: After this evening, were you surprised, first of all, that Stevens was a nominee?
Bork: Yeah, I was, but somebody told me that the meeting at which Stevens’ name surfaced and people discussed him, Ford said, “That’s great. There won’t be a single vote against him.” And Senator Pat Buchanan walked out in a fury for choosing people for their blandness.
Smith: That’s interesting. Stevens, then and to the end of his career, regarded himself as a moderate. Would you accept that characterization?
Bork: He was a moderate left-winger. No, it’s very odd. See, I knew Stevens in Chicago and we were on a case together. What he became when he came to Washington was a total surprise to me.
Smith: So he was, in fact, at the time of his nomination, seen as a moderate – however you define that – and he moved to the left after he joined the court?
Bork: Yeah. Initially, it wasn’t clear it was left he was moving to, but he was beginning to spin out jurisprudence theories that had nothing much to do with anything. And then, gradually, it became a left-ward trend. I was going to say on the surveillance business that was taken care of by Ford except that our solution.(?) Then there was the Boston busing case. And that was a pistol. I don’t know how much you know about that.
Smith: I was in Boston at the time.
Bork: Well, that judge who was running everything—
Smith: Judge Garrity.
Bork: I hope he’s retired. Yeah. It’d be very good for American jurisprudence if he retired. He was terrible. You know, the object of a remedy in a case is to set things back where they would’ve been but for the violation. But he didn’t see it that way. He took the fact of the violation, which was not too clear anyway, as a warrant to run the Boston school system. He was doing things like choosing the basketballs that they bought and overseeing the purchase of supplies and so forth. I don’t know what was wrong with him, but he became a little dictator on matters that had nothing to do with the busing case.
Smith: And the administration’s position?
Bork: Well, when the case came up again, going to the district court first or maybe it was on appeal, I worked out a remedy that would address the violation and not just tell the judges to run wild with it. And, initially, Levi agreed with it. I went and told him. I rarely had occasion to talk to the attorney general about a case, but if there were political ramifications, I would. I did this with Levi and he initially went along with the idea, but then the heat became intense. William Coleman, for one, came storming over there and was going to resign and make it known that we were all racist or some God damn thing.
Smith: And this was the whole debate over busing and what the administration’s position should be?
Bork: Yeah. So, Levi said to me after all the shooting that was going on, he said, “Bob, this isn’t the case. No matter how reasonably you go in, it’ll be you and the Department of Justice against a long-beleaguered judge.” I had to agree it would happen that way. So, we went over to see Ford and tell him that. He was not happy. He wanted a face-off about busing, but he respected Levi’s judgment and didn’t push it.
Smith: Did you have a sense or did he say anything that led you to conclude what it was that made him want this confrontation? Was it his personal conviction? Was there politics at work? Some combination?
Bork: No, I think he thought it was good politics to resist the judge, but that it would play terribly in the intellectual class, though everyone else would think it was fine. It was politics in the sense that any politician has to think about politics.
Smith: He said at one point, and I think Coleman may have said this to us, that Ford’s position was, “Look, you know how I feel about busing. I don’t think any kid should be bussed.” It was geography, not race, per se. He didn’t think it was good. That every child ought to be able to go to the nearest school. Period. And he saw busing through that very practical, neighborhood lens.
Bork: He may have, but he would’ve enjoyed seeing us bring the case. I remember when Levi said to me, “Bob, this is not the case.” I said, “It’s the case God gave us.” He thought that was so funny, he went and told Ford.
Smith: But apparently on this occasion, God’s judgment was set aside.
Bork: Well, God didn’t make a judgment exactly. He just left us out there with a case.
Smith: What have we overlooked? Is there anything in terms of your contact with Ford?
Bork: Let me see. I dictated some things.
Smith: Great. I saw Bill Saxbe just died, this week, I guess?
Bork: He didn’t check out from overwork.
Smith: I rather gathered that’s the consensus.
Bork: That’s right. He was always out of town some place and giving speeches and being entertained. People would say, “Bill, you’ve got to pay some attention to this stuff,” and he’d say, “I’m out there job-hunting for justice.”
Smith: We’ve been given the impression that he thought this rather a nice way to end a political career. A cabinet position. That justice was a nice place to retire to.
Bork: There’s a weekly meeting in the attorney general’s conference room in which the heads of the divisions and the bureaus were brought together, maybe twenty people. And it was kind of indicative of the personalities. When Richardson was attorney general, he always thought up something worth discussing. When Levi was attorney general, after a couple of discussions, he said, “These are worthless” and he quit having them. When Saxbe was attorney general, he tried once to have a discussion. It didn’t go well. But after that, we’d all get together and he’d stand up and say, “The bar is open” and we got the bootsky.
Smith: Sounds like a throwback to the Truman era.
Bork: No, it’s a throwback to Jim Eastland.
Smith: Well, yeah. How do you think Gerald Ford should be remembered?
Bork: Kindly. A man of integrity. Not of great talents, but of integrity. And sufficient talents. Who was important in the transition phase after Nixon. I never saw a man so thoroughly destroy himself as Nixon did. Anyway… I was about to go into my discussion of the fact that Nixon, while he pulled some really bad stuff, also pulled some good stuff.
Smith: Yeah. I think one of the real challenges that obviously Ford had was meshing the Nixon staff with his own people. Rumsfeld told him, for example, “Immediately clean house.” Ford was reluctant to do that in part because he did not want to impute blame to the vast majority of holdovers, I think, in the White House and elsewhere, who had nothing to do with Watergate.
Smith: I mean, was there a sense at the department of, “Are we going to have jobs?”
Bork: There was a sense maybe heads would roll, but no specific indicators that that was about to happen. I don’t think it would’ve been wise. You said Rumsfeld said that to whom?
Smith: To Ford. Rumsfeld advised Ford very early on, “Clean house. Make this your own administration. Make a clean break and bring in your own people.”
Bork: Well, he brought in Levi in the case of the Department of Justice and Levi managed to settle and ride that wild beast. So I don’t know how cleaning house would’ve been.
Smith: It’s interesting to hear your observations about Levi, President Ford, in his eulogy at Levi’s memorial service, said he thought he was the attorney general against whom all others should be measured.
Bork: Well, I think that’s true, although, I was there for that service or part of it. My wife and I were there for part of it, at least. We had to get a plane back, but the part that shot me into the air was when Ford said he appointed John Paul Stevens to the Supreme Court because of his knowledge of Chicago jurisprudence, which he was practicing on the Supreme Court every day. Well, in the first place, there is no Chicago jurisprudence.
Smith: The Chicago school? The notion—
Bork: The Chicago school, they were talking about anti-trust and economics. It was not a generalized thing. I thought we could’ve sued Ford for implying that Stevens was doing Chicago jurisprudence.
Smith: That’s a perfect note. That’s perfect. Thank you.