In a series of 1984 interviews with Washington Post staff writers Al Kamen and Fred Barbash, U.S. Court of Appeals Judge Robert H. Bork talked about his career and judicial philosophy on condition that the material not be published unless he was nominated to the Supreme Court. President Reagan nominated Bork last week to succeed retiring Justice Lewis F. Powell Jr.

The excerpts begin with Bork talking about the 1973 "Saturday Night Massacre," when he carried out President Nixon's order to fire Watergate Special Prosecutor Archibald Cox. The task fell to Bork as the Nixon administration's solicitor general after then-Attorney General Elliot Richardson and then-Deputy Attorney General William Ruckelshaus refused to fire Cox and resigned.

How did you hear about it?

Elliot's secretary put her head in the door and said, "The attorney general wants to see you." And that's when it started.

You knew what it was about.

Well I assumed so, but I had no idea what my involvement was going to be. Ruckelshaus was there and a couple of Elliot's aides. And we talked about what was going to happen.

He was under pressure from the White House to fire Cox and so forth and so forth and finally he said, "I can't fire Cox." And he couldn't. I knew he couldn't. Not with the promises he'd made. "Can you fire him, Bill?" And that was the first time I thought. . . . I said, "Wait a minute." I didn't see it coming. Bill thought a minute and said no.

He said, "Can you fire him, Bob?" There was nobody behind me. So I said, "Wait a minute, let me think." And I began walking around Elliott's office while he and Ruckelshaus and the other guys kept talking about something else, and then finally I said, "Yeah I can, but I'll resign. I'll fire him and resign."

And he said, "Why would you do that? Why would you resign?" And I said, "I don't want to look like an apparatchik." He said, "No, you've got to stay. The department needs continuity."

Anyway, nothing was really decided and the whole afternoon went on this way. He went over to the White House and came back and Bill and I weren't sure what he was going to do, and I talked to Ruckelshaus about it, about the difference in our respective positions morally. Because they had made representations and so on {about not firing Cox}.

And then finally he came back and said, "You've got to do it, carry it off." And I called my wife and told her what I had to do.

Who was behind you in seniority?

There's a department regulation that says in the absence of the attorney general and his deputy, in the absence of both -- the solicitor general {is in line}. And there's nobody else.

In hindsight you have no doubt that you did the right thing?

No, I don't.

And do you feel that after that happened there was a time in which you were identifed almost as the villain in some people's eyes?

Sure, sure.

How do you feel about that?

I think the one thing I should have done, and I didn't do because I was really not acclimated to Washington, I think I should have walked out of the White House that night, held a press conference instantly and said, "Don't worry, the investigation is going on as before."

How did you feel about that? Did anybody ask you to stop the investigation?

No. I wouldn't have done it, you know. It was essential to me that none of that happen because I'm not going to be involved in an obstruction of justice. It seemed to me essential, that if I was to make it plain why I did it and that it was a moral thing to do, I had to be sure that the investigation did not stop and that they weren't hindered in any way.

You became a household word, and you suddenly became a famous person outside of the narrow circles in which. . . . Did that change your life in any way? I mean your family? Your wife?

Well she was quite nervous for a while, needless to say. There was a lot of abuse.

What kind of abuse? In the press and so on?

Well, some of that, but also a lot of mail and phone calls and so forth.

To your home?

Well, I was listed. I was in the phone book and people were calling from all over. I guess one day they dropped this whole wad of telegrams on my desk, you know. It was pretty intimidating. Benedict Arnold. Judas Iscariot and so forth and so on. There were letters of support, too. I expected that because the night I did it, I knew it was big trouble.


I think a judge is not an elected figure and his only mandate in this area is the Constitution. It's the only thing that gives him the right to govern. And if he begins to make up things that are not in the Constitution, he is governing, in a sense, without being elected and without being accountable.

We're talking, after all, {about} a judge saying to a majority of the representatives of the people, "You can't do that," and I don't think he should say you can't do that unless he's got some law. 'Cause otherwise he's just making himself the supreme governor of the society.


I don't think it's any of the court's business to intrude. I just didn't think there was anything in the Constitution about it.


I never really thought there was any legitimate way you could hold the death penalty unconstitutional when the Constitution itself mentions it a couple of times and assumes it will be applied. It is in the Fifth Amendment, it is in the 14th Amendment and so on.

Did you have any personal views on the death penalty itself?

Well, pro, but not fanatically so. There are certain kinds of crimes occasionally in which one thinks the only possible penalty is death because the crime itself is so horrible. But I think the thing that concerned me most was {the} statistical evidence that the penalty deters. Now, there is argument about that evidence and I'm not enough of a statistician to be able to join in the argument, but it makes sense.

We know that imposing costs deters conduct. And if it deters, then you're saving the lives of innocent people. I find it a little hard to have a moral objection to executing a convicted murderer if the failure to execute him condemns, say, four or five, seven other people who are innocent, to death.


It's a lot of fun. I even enjoy it now. Because the questions are coming hither and yon and some are very penetrating questions. Some of them are not. And your mind is working very quickly. Closest experience to it is teaching a very large and lively class in a law school, when the students are arguing with you and you are getting questions and challenges from all over the classroom. And that's an exhiliarating experience.

I know the Supreme Court has changed its mind during oral argument, because they've told me. And I know for a fact that I've changed my mind repeatedly during an oral argument, as a judge. I think the tendency in our system for the oral argument to disappear is a very unhappy one.

It is true, there are some lawyers who get up and have nothing to tell you except to repeat the brief. Sometimes you'll see a noted figure get up and make a terrible argument. And then some kid will show up from Iowa or someplace with a strange case and do a beautiful job -- never been to the Supreme Court before.


We chatted and Nixon gave me a discussion, quite lengthy, about what he viewed as the proper function of a judge and what judges shouldn't do. And it was pretty good. I mean, you know, I thought some professors I knew could do better, but I think for a busy president to sit down at Camp David, it was a damn good talk. He was a very bright man, a very bright man. It was essentially {that} he was essentially unhappy with the activism of the Warren Court, getting things out of the Constitution that aren't there and so forth.