I FOLLOWED THE 1960 PRESIDENTIAL CAMPAIGN FROM GENEVA, Switzerland, where I was on leave from the faculty of the University of Chicago Law School on a Ford Foundation fellowship. Earlier that year I had watched the Democratic convention on television before leaving for a tour of France and England with my two young sons. John F. Kennedy was an attractive candidate, with his youth, good looks, and a distinguished war record that particularly appealed to those of us who, like him, had been junior officers in World War II. President Eisenhower, despite his distinction and patented smile, was scarcely one of us. No general officer really was; they were too far removed from our experience.
We wanted to change the world and, in a sense, felt we had earned the right to try. Eight years of Ike had been mostly business as usual—or so it seemed.
Kennedy’s choice of Senator Lyndon Johnson as his running mate was a little worrisome. Part of Kennedy’s appeal was that he did not look or act like a politician, and Johnson’s reputation was in strong contrast—the consummate political leader of the Senate, the wheeler-dealer, the great compromiser. It was hard to know what, if anything, he stood for, despite rhetoric reminiscent of the New Deal. One could understand the politics underlying his selection, but his candidacy contributed nothing to the excitement that JFK would ignite. That Bobby Kennedy was said to have opposed his brother’s choice for a vice president made Bobby all the more appealing to me.
I had never met Senator Kennedy or any of his family. Had I remained in Chicago, I might have volunteered to help in the campaign, as many of my friends had done. But we had our family plans for a year in Switzerland, and that prospect too was exciting. Once I was off with my sons, Chris and John, for our European tour, I followed the campaign in the International Herald Tribune as best as I could, and scoured French newspapers for tidbits of news when I could not find the Trib. When my wife, Lydia, arrived in Geneva in September with our two very young daughters, she brought with her American newspapers, at my request. The election was obviously going to be close. It captured my interest and excitement far more than my research in international law.
After Kennedy was elected by a hair in November, I began to fret that while Washington would be home to an administration I could identify with, I was stuck in Switzerland with no part in it. As the names of possible appointees became public, I felt more and more left out. Adam Yarmolinsky, who had succeeded me as editor in chief of the Yale Law Journal, was helping Sargent Shriver put together lists of potential appointees. Abram Chayes, a Harvard Law professor and friend who, like me, taught international law, was being considered for appointment as legal adviser to the new secretary of state—a post I would have killed for. And to top it off, Byron White, a friend from my student days at Yale Law, was named deputy attorney general to help young Bobby Kennedy in the Justice Department. I wanted desperately to be a part of what would be going on in Washington.
“Well,” said Lydia, “why don’t you call Byron and ask him if there are any possibilities?” So I did.
Byron had graduated a year ahead of me at law school, and we had shared some seminars. I do not think I had spoken to him in the thirteen years since then, but he was as warm on the phone as though we had been together often. He had a dry sense of humor and seldom spoke more words than were necessary to make his point.
“I don’t know of anything in Geneva,” he said, “but if you are serious, you’d better get to Washington in a hurry.”
I took a plane the following day.
I met with Adam Yarmolinsky, who sent me on to talk to others. Because I was teaching international law courses at Chicago, my interest was primarily in the State Department. But I had no country or regional expertise, and the principal law job, legal adviser, was clearly going to Abe Chayes. Somewhat discouraged by what seemed like a succession of closed doors, I turned again to Byron. Byron said he was putting together a team to help Bobby Kennedy in the Justice Department. Would I be interested? He had already recruited Louis Oberdorfer, another Yale Law star, for the Tax Division and was trying to persuade Burke Marshall, a close friend of mine since high school and another successor as editor in chief of the Law Journal at Yale, to head the Antitrust Division. Though I had not yet met the young attorney general designate, I began to feel that Justice was where I belonged. I told Byron that of course I would be interested, and he said he would take it up with Bobby.
Byron also discussed with me some of the others who were being considered for appointment to top department positions and asked me for suggestions. I think I may have made my greatest contribution to the Justice Department, and for that matter to the Kennedy administration, when I told Byron that I doubted Burke would accept the antitrust post. He had just been made a partner in the prestigious law firm of Covington and Burling and badly needed the extra income. (At that time assistant attorneys general were paid $15,000 annually.) But I thought he might be persuaded to take the civil rights post because of the strong convictions on racial equality he shared with his wife, Violet. He did in fact accept that position, where he became the architect of the government’s civil rights policy and one of the great public servants of our time.
The job Byron suggested as a possibility for me was to head the Office of Legal Counsel. At the time I had never heard of it and had little idea of what it did or how important it was. He arranged an appointment with Bobby, and I had my interview at the appointed time. I have no clear recollection of the meeting. Bobby seemed to me very young, and I got the impression he did not know any more than I did what the legal counsel did. Mostly we talked about my teaching—he called me Professor Katzenbach, and I wasn’t sure there wasn’t an edge to the “Professor”—and academic interests, my young family in Geneva, why I wanted to join the Kennedy administration, and how I knew Byron. He told me about other appointments in the department. Herbert J. (Jack) Miller, an able young Republican lawyer whom he had worked with on the Hoffa investigation while on the staff of the Senate Labor Committee, would head the Criminal Division. William Orrick, another capable lawyer, from San Francisco, who had worked in the campaign, would head the Civil Division. He asked about Burke Marshall, I think, because he knew the importance of civil rights to the Kennedy administration and was uncertain about the modest and laconic Burke. In truth, there was no civil rights policy at the time, and I believe Bobby was concerned that the appointment of an identified civil rights activist such as Harris Wofford, who had worked hard in the campaign and wanted and deserved the job, might encourage civil rights leaders to expect more than the Kennedys could deliver. Fortunately, Harris and Burke were close friends, notwithstanding very different personalities, and Harris got a job in the White House, where he worked closely with Burke on race.
I could not help liking Bobby, although he scarcely fit my concept of an attorney general. I was excited by his obvious enthusiasm and by the quite extraordinary young people he was bringing into the department. More than any other person I met in Washington those two or three days in late December, Bobby confirmed my conviction that this was our administration, that my generation was taking charge. I was thirty-eight at the time.
The very next day, somewhat to my surprise, Byron told me that Bobby had decided to ask the president to appoint me assistant attorney general heading the Office of Legal Counsel but that I was not to tell anyone outside my family until it was announced. I returned to Geneva to make arrangements for my family to remain there so the children could finish the school year while I went to Washington.
The current head of the Office of Legal Counsel, Professor Keller of Georgetown, decided that he wished to remain in office until the end of January, when a new term started at the law school. While his refusal to resign with the change in administration was a little awkward for me, it was easy to understand why a new, young attorney general did not want to make a fuss. What impressed me, however, was Bobby’s candor in talking to me about the situation, his finding me an office for the week or so I needed it, and most of all the respect he showed for my predicament. He said he wanted to see nothing from the Legal Counsel’s Office that had not been approved by me, and he included me, not Keller, in all staff meetings. It was not much, but it certainly meant a great deal to me at the time. It is simply an early example of Bobby’s empathy—one reason that the people around Bobby were so loyal to him.
Despite the minor embarrassment of being excluded from my office and ensconced in a temporary one in the law library, the first few days in the Justice Department were heady ones. For one thing, I learned about the responsibilities and duties of the Office of Legal Counsel. It had its origins as a spin-off from the Solicitor General’s Office and was originally called the Office of the Assistant Solicitor General. Its most important duty was to give legal advice to the attorney general, and my position was sometimes referred to as “the attorney general’s lawyer”—a description I later used in my confirmation hearing. The office reviewed important constitutional questions and legislative problems for the AG and, when requested, for other divisions, including the FBI, Prisons, and Immigration. Most important, at that time the attorney general gave the White House its legal advice; there was no competing White House counsel, though that title was used. Thus the Office of Legal Counsel served in effect as White House legal adviser (subject, of course, to the attorney general), and it had important files on past advice given. This role had occasionally been a source of tension between the AG and the head of Legal Counsel, because the head tended to establish a close relationship with the White House, to the annoyance of a jealous attorney general. In the Kennedy administration this problem never arose; it would scarcely have been possible to establish a relationship closer than that of the president’s brother.
Like the Office of the Solicitor General from which it evolved, Legal Counsel has tended to be headed by lawyers with strong academic rather than political credentials. Many have gone on to important judgeships on courts of appeals, and three (Rehnquist, Scalia, and Alito) to the Supreme Court. In 1961 it had a small staff (roughly twenty lawyers) with a strong tradition of objective legal analysis, historical precedent from its own opinions handed to to presidents and attorneys general of both political parties, and a genuine pride of scholarship in its work. Today, with the practice (begun in the Carter administration) of the White House counsel’s actually giving legal advice, the role of Legal Counsel (like that of the attorney general) has been diminished. Presidents of all persuasions like the powers of office and are more likely to get a green light from political appointees in the White House than from an office headed by an academic and staffed by civil servants. Thus Legal Counsel has, almost inevitably, evolved too far toward becoming an apologist for presidential power after the fact (it would be difficult for the attorney general to take public issue with White House counsel) rather than being a nonpolitical professional legal adviser.
I was confirmed in this view recently as I read Jack Goldsmith’s The Terror Presidency. Professor Goldsmith, who headed the Office of Legal Counsel in 2003–2004, vividly describes the pressure put on him to conform his legal opinions and those of his predecessors with the desires of the White House and the vice president and the extent to which that pressure succeeded. Opinions by Legal Counsel are still, he affirms, the gold standard within the administration, reflecting its long history of scholarship and objective legal analysis, and, I believe, the extent to which the views of lawyers in the White House would be tainted by politics in fact and certainly in the public mind. True, the AG and his principal aides are also political appointees, who presumably share the president’s political views and serve at his pleasure, but they can be more easily held accountable for their views by Congress than White House counsel. It is natural for them also to think of the president as their client and to seek to find ways for him to do what he wants to do. But what works for a private lawyer does not work for the attorney general or his aides. Under the Constitution, the president carries out the policies enacted into law by Congress, and the rule of law—the concept that we are a government of laws, not men—requires that he do so scrupulously, even when he would prefer a different outcome. All attorneys general have wrestled with the problem of political pressure to interpret the law as the president would like it to be, and a few have succumbed on occasion to that pressure. But if trying to please the president is substituted for one’s honest professional opinion, I think both the president and the country are ill served. Public trust in the president and the Department of Justice is far more important than clever argument on behalf of a client or a search for loopholes or ambiguities in a statute. It sounds strange today and perhaps a little naive, but I think objective and honest legal advice in the interpretation of the laws is good politics and constitutionally necessary.
In 1961, Legal Counsel was an ideal post for an academic who loved government, and Bobby Kennedy was the ideal attorney general to advise. The appointment of the president’s younger brother was, quite understandably, the subject of criticism, because of both his inexperience and fear of his political motivation. What Bobby, with Byron White’s help, had quite shrewdly done was to staff the department largely with appointees with strong professional rather than political qualifications. The last thing he wanted was conduct that could be seen as politically motivated, and his staff was designed in both appearance and fact to give him that protection. Bobby wanted to go after Jimmy Hoffa and organized crime, but he appointed a Republican to head the Criminal Division, albeit in Jack Miller a person who had the same goals as he did. He knew civil rights would be a big issue for him and the department, so he avoided appointing Harris Wofford, a known advocate of the black cause, in favor of Burke Marshall, an exceptional antitrust lawyer—also one who he knew shared his own values. My absence in Switzerland during the campaign and my lack of any connection with the Kennedys, as well as my academic qualifications, became political assets.
A few days after the inauguration, President Kennedy held a White House reception for all the presidential appointees. Although not yet formally nominated, since the office was technically not vacant, I was invited. It was the first time I had ever met a president, and I was excited as I went through the receiving line. I was even more excited when, shaking my hand, the president said to me, “Nick, I’m so glad you’ll be helping Bobby in the Justice Department.” How on earth, I wondered, did he know that?
Byron took me down to the Senate Office Building to meet the chairman of the Judiciary Committee, Senator James Eastland of Mississippi, and two or three other members of the committee. The meetings were perfunctory but a necessary courtesy. Very soon thereafter my confirmation hearing was scheduled, and I appeared before the committee. Since I had been teaching at the University of Chicago, I was presented to the Senate Judiciary Committee by Senator Paul Douglas of Illinois, who, as it happened, I knew as the father of one of my close friends and college roommates as well as a fellow Rhodes Scholar at Oxford, John Douglas. John, a former Supreme Court clerk, was a Washington lawyer who later headed the Civil Division under Bobby. The hearing lasted only a few minutes. It was here that I described my position as “the attorney general’s lawyer.”
I returned to my office, and after spending perhaps half an hour on paperwork, I heard the attorney general’s direct line buzz. When I picked up the phone, Bobby said, “Congratulations.”
“On what?” I asked.
“The Senate just confirmed you.” Pause. “I guess they thought I needed a lawyer pretty badly.”
I had just had my first experience with Bobby’s sardonic sense of humor.
One of the great benefits of working for the brother of the president was the fact that Bobby’s power flowed down into the department. Nobody in other departments wanted to tangle with the young AG, and as a result the legal views of every lawyer in the Justice Department increased in value. Even the youngest recruits quickly acquired a swagger from working for Bobby. Our views on the law became golden. What may have begun as a question about what this very young, very political AG would be like to work for was quickly transformed into an enormous morale boost for all of us, except perhaps J. Edgar Hoover and his FBI. Hoover had been close to presidents for years, and now, in addition to his ideological differences with the new administration, he felt personally isolated.
While the ripple effects of Bobby’s power quickly became obvious to all, there was another facet of his relationship to the president that benefited senior officials in the department tremendously. That was the fact that Bobby had no need to prove himself to his brother. I first became conscious of this early on, when I was reviewing an executive order on equal opportunity in government contracts that President Kennedy had put in the hands of Vice President Johnson. During the campaign, much had been made of the power of the executive to deal with racial discrimination through executive action, “with the stroke of a pen.” Whatever his motivation, the vice president was determined to push executive power to the limits—perhaps to prove his own lack of bias, perhaps because more than anyone he knew the difficulty of getting meaningful legislation passed in this area.
In any event, Johnson turned, as he so often did, to Abe Fortas for help. Fortas was a brilliant lawyer and an ingenious one. Together with a young colleague in his Washington firm, William Rodgers, Fortas drafted a proposed executive order that pushed executive power to the limits and, in my judgment, somewhat beyond. We redrafted the order in my office, retaining many of the innovative ideas that Fortas, through the vice president, had proposed. Bill Moyers, Johnson’s special assistant, and Hobart Taylor, a talented black lawyer from Texas on Johnson’s staff, worked with us. Although Moyers was not a lawyer, he was intelligent, sensitive to the problems, and a pleasure to work with. The major area where Fortas would have gone further and we cut back was what could be required of unions. I had no problem requiring government contractors to hire without racial discrimination, but I did not believe we could reach their unions on matters of union membership. Johnson and Fortas essentially wanted to treat unions the same way employers were treated. Eventually Johnson’s people agreed, and we put it all in proper form. In many ways it was far more like a statute than a typical executive order. It was long and complicated, and more explicit and comprehensive than any of its predecessors.
On a Saturday, Bill Moyers and I were working on what we hoped was a final draft—the lawyer in my office who was the expert on the form of such orders was making all the technical changes in spelling, capitalization, punctuation, and so forth—and late in the afternoon we came to agreement. The president was scheduled to review and sign the order on Monday. I called Bobby at his home at Hickory Hill and asked him if he wanted to review it over the weekend.
“Sure,” he said, “why don’t you bring it out to the house now?”
That was my first visit to the beautiful home in McLean, Virginia, where Bobby and Ethel and their large family lived. When I arrived, Bobby greeted me at the door, and as I handed him the order and the letter transmitting it to the president, I told him, “You’ve got to sign this letter and give it to the president.”
“Well, what is it?”
I explained in general terms.
“Come in and tell me about it.”
No sooner had he closed the door behind me than President Kennedy appeared and began asking me questions about the order, demonstrating a surprising—to me, at least—knowledge of its terms and its problems. Knowing that the attorney general had not yet reviewed the paper, I was embarrassed for him, as I had to take the lead in answering the president’s questions.
“Did you get section 305, I think it is, worked out with the vice president? Is that satisfactory to him now?”
“Yes, we worked that out.”
“Well, how about that question with the unions? Have you talked with Arthur Goldberg [then secretary of labor] about that? Have you worked that out all right?”
“Well, Mr. President, I think we’ve worked that out, yes, along these lines…” And I explained.
Then, to my continuing amazement, he went through four or five other sections by number, asking me how they had come out, and with Bobby looking on, I explained, to my embarrassment, “Yes, here is what we concluded. It’s satisfactory to all concerned.”
“Well,” said Bobby to his brother, “I don’t know why the hell I sign this thing and give it to you. Why don’t you sign it and give it to me?”
He wasn’t embarrassed. In fact, I think he was rather pleased that someone in his department whom he had known only a month could answer the president’s questions.
In the months and years to come I was to see this side of Bobby repeatedly. He wanted the president to get the facts and the law from the person closest to the problem, and, unlike some other cabinet officers, he did not have to be that person. All of us experienced Bobby asking us questions about a problem and then saying, “Come over to the White House with me and explain it to the president.” His pride was in the department he ran, the people who surrounded him, and service to his brother.