It's a crying shame that Archibald Cox and Samuel Dash both died in the middle of this long holiday weekend. Both men were giants in the world of the law-giants of Watergate and beyond -- and each deserved far more attention than they received upon their passing from understaffed newspapers and television networks and from a population preoccupied with travel and cookouts. Even the fact that they both died on the same day -- like Jefferson and Adams -- made the stories of their lives and deaths notable.
Dash will forever be known for two things. Thirty years ago, he served as chief counsel for the Senate Select Committee on Presidential Campaign Activities -- the Senate Watergate committee. He choreographed the famously televised hearings into wrongdoing at the White House and is largely credited with keeping those proceedings nonpartisan and temperate. "Even Republicans said he was fair when dealing with Nixon," former Rep. Robert F. Drinan told the New York Times this weekend. "He encouraged evenhandedness."
Dash also will be known for his actions 25 years later when, during the Clinton impeachment battle, he exposed Independent Counsel Kenneth Starr for what Starr truly was; an overzealous partisan who allowed the ends to justify the means. In a legal world that seemingly becomes more cynical and political with each passing day, Dash was a living, breathing reminder that men and women are capable of putting principle ahead of practicalities. Can you remember a more poignant statement than Dash's 1998 resignation from Starr's team? I cannot. The Times called him a "champion of legal ethics" and that's about as good a way as any to describe him for posterity.
Cox, meanwhile, rarely spoke publicly about ethics. He merely lived an ethical life in the law. Best known for being the first victim of the Watergate-era "Saturday Night Massacre," Cox had a profound influence on the law both before and after his brief and brilliant moment in the spotlight. Before he was ordered fired by President Nixon, Cox was President Kennedy's Solicitor General. And in that role he argued and won before the Supreme Court two of the most important cases of that era.
Baker v. Carr, decided in 1962, affirmed the rule that the federal courts had the power to evaluate the constitutionality of the apportionment of seats in a state legislature. That meant, in laymen's terms, that federal judges had the power to invalidate unfair political apportionment that meant, in Cox's words, that "the people in some counties had eight, ten, and even thirty times as much representation, measured per capita, as the people in other counties."
After Baker got the issue before the Justices, the Court then, in 1964 in Reynolds v. Sims, affirmed the principle of "one person, one vote" by requiring that the seats in state legislatures be apportioned on a per capita basis. Today, in the age of partisan redistricting and gerrymandering, those two cases seem almost quaint. But there are monumentally important and Cox played a role in the genesis of both.
Cox also played a key role in the world of the law after Watergate. He taught for decades at Harvard and also at Boston University, where he happened to be my constitutional law professor for one semester. One unnamed former student in the Times said of Cox that "he's not a performer in the classroom. There's no sparkle at all." I cannot disagree with that. When he was my professor he was already in his late 70s and he certainly didn't offer much emotion as he went through constitutional theory case by case. But he taught me more than most, in part because unlike most of my other law professors he actually had been engaged in the arena before coming to teach.
Unlike my other professors, too, he made himself available and allowed me once to try to talk him "up" in grades during a visit to his office. Imagine having to offer oral argument to Archibald Cox! I think he cut me a break but I cannot be sure. What I am reasonably sure of is that there are thousands of lawyers and judges and professors around the country who owe a tiny bit of their careers to the man who came to class each day in a dark, conservative suit and bow tie.
And then, of course, there was Watergate. If Dash represents the light of Watergate -- by that I refer to the role he played in getting White House witnesses to shed light on the cover-up -- then Cox certainly represents the heat of the affair. An executive-branch appointee, Cox stood up to the President when Nixon ordered him to back off on his pursuits of the White House tapes. He did so at an extraordinary cost to his own career and to the careers of Eliot Richardson and William Ruckelshaus, both of whom refused to fire Cox at Nixon's command. And yet, in the end, it was Nixon who ended up hurt most by the actions of October 20, 1973.
Two important men died this Memorial Day weekend while we were barbequing, buying furniture, or stuck at the nation's airports. Both were at the center of one of the greatest scandals in American history. Both came out of the scandal with greater stature and respect than they possessed when it began. Both will last long as symbols of what can be right about the rule of law and how true that rule of law can seem when men of great integrity, skill and courage guide it along.