Editing Archibald Cox (section)

===Judicial politics===
In late 1978 a new seat became available in the United States Court of Appeals for the First Circuit (the federal appellate court sitting in Boston) when Congress expanded the federal judiciary by 152 judges. Observers expected Senator Kennedy to avail himself of the tradition allowing the Senator of the president's political party to name federal judges in his state to propose Archibald Cox.<ref>{{cite news|url=https://www.nytimes.com/1978/11/28/archives/kennedy-proposes-a-black-man-and-a-jewish-woman-as-judges-two.html|last=Knight|first=Michael|title=Kennedy Proposes a Black Man and a Jewish Woman as Judges|work=New York Times|date=November 28, 1978|page=A16|access-date=May 3, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20171201140048/http://www.nytimes.com/1978/11/28/archives/kennedy-proposes-a-black-man-and-a-jewish-woman-as-judges-two.html|archive-date=December 1, 2017|url-status=live|df=mdy-all}}</ref> In March 1979 a panel of lawyers appointed by President Carter unanimously recommended Cox as their first choice among five for the nomination.<ref>{{harvnb|Gormley|1997|pp=407–408}}. ''See also'' {{cite news|url=https://www.nytimes.com/1979/03/04/archives/cox-is-candidate-far-judgeship-on-the-federal-court-of-appeals.html|title=Cox is Candidate for Judgeship on the Federal Court of Appeals|work=New York Times|date=March 4, 1979|page=29|access-date=May 3, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20171201140206/http://www.nytimes.com/1979/03/04/archives/cox-is-candidate-far-judgeship-on-the-federal-court-of-appeals.html|archive-date=December 1, 2017|url-status=live|df=mdy-all}}</ref> Cox was highly doubtful, however, that Carter would appoint him in light of his prominent support of Udall three years earlier, but nevertheless filled out the application and submitted to background checks.{{sfn|Gormley|1997|p=408}} Then in June the ''New York Times'' reported that the nomination was "stalled." Some anonymous sources claimed that Attorney General [[Griffin Bell]] objected to the nomination on the ground that Cox at 67 was too old, noting that the ABA suggested that no one over 64 be named to the job. Another suggested that behind this rationale was antagonisms between Bell and Cox dating back to when Cox was Solicitor General and Bell was an appellate court judge in the south. Another source said that the Justice Department was holding up the appointment because Kennedy was attempting to assert undue influence as Chairman of the Senate Judiciary Committee, who had the ability to block appointments across the country. Publicly, however, all the parties insisted that the delay was nothing out of the ordinary.<ref>{{cite news|url=https://www.nytimes.com/1979/06/03/archives/coxs-nomination-to-bench-stalled-by-3way-battle-viewed-as-major.html|title=Cox's Nomination to Bench Stalled by 3-Way Battle|work=New York Times|date=June 3, 1978|page=26|access-date=May 3, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20171201132844/http://www.nytimes.com/1979/06/03/archives/coxs-nomination-to-bench-stalled-by-3way-battle-viewed-as-major.html|archive-date=December 1, 2017|url-status=live|df=mdy-all}}</ref>

Within the White House Cox had his defenders who argued strongly against the "rule of 64" and even obtained an opinion that the ABA would not object to Cox's appointment. Kennedy even spoke personally to Carter, urging that the appointment would redound to the president's political benefit, but Carter told him he would not appoint Cox. When the decision was made members of Carter's own judicial selection publicly expressed their anger over the decision.{{efn|One member said that "[i]t bothers me ... because he ... disregarded what the commission was trying to do—select the positively best person." Common Cause's counsel termed the behavior "awfully petty." The ''National Journal'' concluded the affair demonstrated that when Carter and his aides "bungle something, they don't do it half way." It showed lack of statesmanship and competence at a time when Carter's hold on the nomination, let alone re-election, was slipping.<ref>{{cite journal|last=Cohen|first=Richard E.|title=Another White House Folly|journal=National Journal|volume=11|number=6|date=September 8, 1979|page=1492}}</ref>}} Carter's 1976 New York campaign manager listed the failure to appoint Cox as one of several ways in which the Administration had "behaved foolishly" simply to snub Kennedy.<ref>{{cite news|url=https://www.nytimes.com/1979/09/13/archives/move-grows-at-capitol-to-urge-carter-to-shun-race-talk-of-visit-to.html|last=Clymer|first=Adam|title=Move Grows at Capitol to Urge Carter to Shun Race|work=New York Times|date=September 13, 1979|page=B18|access-date=May 4, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20171201140521/http://www.nytimes.com/1979/09/13/archives/move-grows-at-capitol-to-urge-carter-to-shun-race-talk-of-visit-to.html|archive-date=December 1, 2017|url-status=live|df=mdy-all}}</ref> The following year another panel assembled by Carter asked Cox if he wished again to apply for a judgeship. Cox quickly turned down offer of interest. His colleague [[Stephen Breyer]] obtained the appointment.{{sfn|Gormley|1997|p=411}}