GWorks—Before you joined the Kennedy Administration, you were teaching at the University of Chicago Law School and you note in your book that the election of President Kennedy was personally invigorating. Was there something in particular you wanted to do in government? Or were you looking for any opportunity to serve?

NdeBK—I have always felt that serving in government is an honor and a trust of the highest kind. I wanted to serve where I could be most useful which, initially, I thought was probably in the State Department since my academic interest was international law. It was pure luck that I ended up in Bobby Kennedy’s Justice Department, thanks to Byron White.

GWorks—Looking back, what are your biggest successes in government?

NdeBK—My biggest successes were the passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act. Obviously there were many people who worked for passage of these acts and two Presidents whose support was crucial and essential. I was the Justice Department representative with hands on responsibility to negotiate terms and work with House and Senate leaders, the White House staff and others.

GWorks—Has your answer changed over time?

NdeBK—My answer has not changed over time.

GWorks—In June 2009, in Northwest Austin Municipal Utility District Number One v. Holder, the Supreme Court upheld Section 5 of the Voting Rights Act of 1965 (as amended). Only Justice Clarence Thomas dissented. Where there has been a history of racial discrimination, Section 5 requires states to receive federal “pre-clearance” of any change in election procedures. In Austin, there was no history of discrimination. In an 8-1 decision, the Court upheld the provision. But in his opinion for the Court, Chief Justice Roberts seemed to hint that the Court might be open to reviewing broader civil rights questions, writing, “We are now a very different nation...than the one that first passed the Voting Rights Act...Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”

GWorks—What is your assessment of the impact of and continued need for the Civil Rights Act of 1964 and the Voting Rights Act of 1965?

NdeBK—I think the two civil rights acts have had great impact although too much prejudice still exists. I fear they may have had the unintended effect of dividing the political parties by making Republicans more conservative with their southern policy and Democrats more progressive without the conservative southern senators as Democrats. The acts have been whittled down but there is a continuing need. They are useful in blocking more prejudicial proposals.

GWorks—Do you think achieving equality (whether racial or other) for its own sake—as opposed to in response to some specific historical wrong—is good policy? Constitutional?

NdeBK—Equality as a constitutional matter is not literal equality. No one believes all humans are alike with totally transferable skills. Equality of opportunity in matters such as in court on civil or criminal matters, education, health, jobs for which one is qualified, voting, etc., should be rights of all, not dependent on past abuse.

GWorks—Is voting a particularly important constitutional issue in this regard?

NdeBK—Voting is very important in keeping government responsive to all.

GWorks—Do you think there will be a time when we don’t need legislation like the Civil Rights Act and the Voting Rights Act? Are we at that point, yet?

NdeBK—I hope someday we won’t need laws requiring people to do what they should do without the law but we clearly aren’t there yet and who knows where we’ll be ten or twenty years from now.

GWorks—What do you make of the argument that law (especially court-imposed solutions like school busing or “affirmative action” programs) is not the means to address equality—whether as a matter of race or gender or sexual preference? Equality is an issue of personal preference not legislation and/or court opinion.

NdeBK—No one claims that equality is not a matter of personal preference, but law is designed to make sure that bias and prejudice resulting from such preferences do not adversely affect the opportunities of some. When people are thrown together in school or in the workplace they in fact do change their views of the “other’ and personal preference based on uninformed factors is reduced substantially.

GWorks—You were in government during a time when civil rights, the war in Vietnam and political discourse became increasingly violent and major American political figures were assassinated, including President Kennedy and Attorney General Robert F. Kennedy, for whom you worked.

GWorks—Did you ever feel threatened?

NdeBK—I never felt threatened.

GWorks—Did the climate affect your capacity to do your job?

NdeBK—The political climate was better than you suggest and more helpful than harmful. I got on with members of the House and Senate who were opposed to equal rights and there was never any animosity or insulting comments. Indeed, I worked with opponents of civil rights on many other pieces of legislation and was always treated with courtesy.

GWorks—Did the climate affect your sense of what can government can and should do?

NdeBK—At that time it was possible to work with members of Congress in both parties in constructive ways. There was far more independence from political parties, less ideological conviction, and, I believe, far less dependence on money contributions and, for the most part, a desire to do what was they thought right unless the views of their constituents were clearly opposed. Their minds were not always open to persuasion by any means, but they weren’t always closed either.

GWorks—How do compare the political atmosphere of the 1960s to the political atmosphere we have now?

NdeBK—There is a huge difference. The parties did not demonize each other, and rarely voted as a bloc save in organizing the Senate and the House. Virtually every piece of legislation required some votes from members of the other party. As a result it was difficult to denounce legislation without denouncing some members of one’s own party. That helped civility and led to compromise and government from the ideological middle—much more pragmatic than ideological.

AUTHOR’S NOTES

Photo: Warren K. Leffler, Negative of Governor George Wallace attempting to block integration at the University of Alabama (11 June 1963). Source: Library of Congress. According to Wikimedia Commons, this photograph “is part of a collection donated to the Library of Congress. Per the deed of gift, U.S. News & World Report dedicated to the public all rights it held for the photographs in this collection upon its donation to the Library. Thus, there are no known restrictions on the usage of this photograph.”

Part Two

GWorks—What was your role in Vietnam as Under Secretary of State?

NdeBK—To try to find a way to negotiate.

GWorks—With which country and/leader did you have the most success? And why/how?

NdeBK—[I] don't really know.

GWorks—Looking back, what do you think the United States should have been done differently with Vietnam?

NdeBK—Putting troops beyond the advisor role and making it our war.

GWorks—Did the government waging an increasingly unpopular war in Vietnam affect the government’s capacity to govern domestically? For instance, do you think Civil Rights, Voting Rights, the Great Society might have been different (any easier), if we did not have to contend with Vietnam?

NdeBK—The Vietnam war did not affect the enactment of either the 1964 or 1965 civil rights acts. But the cost of the war, its unpopularity, and the urban black riots did have an effect on financing Great Society programs.

GWorks—Do you draw a parallel to the political challenges we face today? For instance, do you think healthcare, education, financial reform would be any clearer or easier, if we were not fighting a war on terrorism—in Iraq and Afghanistan and beyond?

NdeBK—I am not sure there is a parallel between the ’60’s and today. As a result of the civil rights acts the Republicans adopted a southern strategy to pick up the previously solid democratic south. This removed the conservative wing of the Democratic Party and increased the conservative wing of the Republicans, increasing the political power of extremes in both parties. One result was the Republicans (with their new southern members) began to chip away at civil rights laws. Social programs benefitting the poor are especially important to the disproportionately poor blacks. Republicans support the wars in Afghanistan and Iraq which are extremely costly and use that cost to oppose social programs and government regulation on grounds of fiscal responsibility. If the wars did not exist I think the opposition to government social programs by conservative Republicans in control of their party would still exist with a change of rationale.

GWorks—In the past six months, WikiLeaks has published confidential information (video and documents) relating to the prosecution of the wars in Iraq and Afghanistan.

GWorks—How would you compare WikiLeaks publication of information to the publication of the “Pentagon Papers” by The New York Times in 1971?

NdeBK—I don’t really know enough about WikiLeaks. I believe the WikiLeaks papers contained information which could be damaging to various intelligence sources. While I believe both were harmful to the war effort—and were intended to be—I’m not sure that either gives much information both relevant to the war and not known to many reporters on the scene. The harm comes because the administration and the military are always upbeat and, as the papers show, that optimism isn’t always shared by the participants.

GWorks—Is publication of Pentagon Papers or the WikiLeaks documents good? Necessary? Wrong? And, why?

NdeBK—I would have published the papers if I had been in the news business. For the most part, the public is entitled to information of this nature. I don’t, however, think it right to take on the decision of the government person who decided he knew better than the government what the public should know. The fundamental problem lies in fighting a war under the questionable reasons given to justify it. When the public seriously questions the wisdom of a war, it is virtually impossible for our government to fight it with heavy casualties for any extended period. Leaks such as these would never have occurred or been published in a war with the public support of World War II.

GWorks—You note in the first chapter of your book that money, along with national politics, played less of a role for politicians, arguing that it allowed you to interact on the substance with politicians, even when there were significant disagreements. The implication is that this has changed—and for the worse.

GWorks—How do you account for the change?

NdeBK—Money plays a huge role in politics today and may be the most urgent problem we need to deal with in government because it influences virtually every issue. . There are two related aspects: First, elections have become hugely more expensive, in part because concepts of equal time have been abandoned and partly because the ranks of the very rich have grown and they are prepared to spend their money and that of their stockholders or ideological supporters to elect candidates who share their views. Republicans use tax-free donations to partisan “think tanks” to demonize Democratic candidates and government generally. Parties have become big fund raisers, as has, of course the President, increasing the dependence of candidates on both. Lobbyists promote political views and sweeten their viewpoint with political donations. The result of all this activity is to make candidates of both parties dependent upon wealthy donors and their political party for money. We have increasing numbers of the very wealthy running for office and spending millions of dollars of their own money, mostly to promote conservative views and their own egos. Money spent to promote preconceived positions and influence elected representatives does not improve the quality of debate or government policy. The line between campaign donations and bribes is the difference between an almost certain expectation of support and a formal promise. Unfortunately money talks, often more persuasively than reason. Unless we act we risk drifting into a plutocracy.

GWorks—In light of Citizens United v. FEC, is there anything to do to change this?

NdeBK—The Supreme Court has equated money with free speech guaranteed by the First Amendment and in Citizens United v. FEC gone so far as to overrule long persuasive precedent limiting corporate and labor union contributions—opening the floodgates further. The Court is obviously prepared to throw out virtually any limitations on political speech and, when money is essential to speech (as in purchasing time for an ad) any limits on money. Democrats in Congress are taking the view,. permitted by the Court, that exposure of the source will help dry up big money contributions. I think this is doubtful. A riskier but more effective approach would simply be to allow candidates to raise as much money as they want but after a certain limit to match with federal funds all donations to, or funds spent in support of, the other candidate regardless of party. This is risky because the Second Circuit has found matching grants with respect to expenditure of personal funds under Connecticut law unconstitutional1and the Supreme Court has enjoined payments under an Arizona matching fund law and may support a District Court’s finding that matching funds “chilled” free speech.2. A matching grant does not “chill” the speech though it may “chill” the willingness to spend the money when there is likely to be a rebuttal argument. But not to permit creation of a level playing field is to support the power of money, not speech, to influence policy. The First Amendment protects the speech and only the money where it is necessary to the speech. A matching grant may make the speech less effective because of rebuttal, but it in no way prevents it. Indeed, in concept, it encourages more, not less, speech.

I believe if Congress were to find that a level playing field was essential to the democratic electoral process and provide for matching grants, even a conservative Court majority would be hard pressed to find it unconstitutional. There are easier grounds for invalidating the Arizona law, and The Court would, I believe, be hesitant to directly confront Congress on a finding elected representatives are far more qualified to judge. The real problem is getting Congress, and particularly its powerful committee chairs and the two political parties, to reduce their own power, however dependent that power is on political contributions.

AUTHOR’S NOTES

Photo:. “Nicholas Katzenbach at the White House. 6 May 1968.”. Yoichi R. Okamoto, White House Press Office. “This image is a work of an employee of the Executive Office of the President of the United States, taken or made during the course of the person's official duties. As a work of the U.S. federal government, the image is in the public domain.

1. See Green Party of Connecticut v. Garfield (13 July 2010) available at http://www.scribd.com/doc/34804579/Green-Party-of-Connecticut-v-Garfield-2d-Cir-Ct-App-07-13-2010.

2. The Ninth Circuit case is McComish, et al., v. Bennett, et al. (21 May 2010). The Supreme Court’s Order is available athttp://www.scribd.com/doc/34804552/Supreme-Court-Order-Mccomish-et-al-v-Bennett-et-al-06-08-2010. The Ninth Circuit’s Opinion is available at http://www.scribd.com/doc/34804502/Mccomish-et-al-v-Bennett-et-al-9th-Cir-Ct-App-06-08-2010-Campaign-Finance.

Part Three

GWorks—Are there particular skills that you feel made you well suited to the positions you assumed?

NdeBK—I am—or at least was—considered a very good lawyer and [for] the Office of Legal Counsel, like the office of Solicitor General from which it sprang many years ago, that is the skill that is required. Bobby Kennedy, because of his relationship with his brother, wanted an apolitical Department of Justice, so the job was not far from being a Professor. The Office of Legal Counsel gives advice to the Attorney General and therefore to the White House. In my view it is essential to good government to give honest advice and not rubber stamp or invent arguments to support what the President or his staff wants. I believe that principle has not always been followed in recent years and there has developed a tendency to find justification for what the President wants, not give him one’s best advice as to what the law permits or requires. Unfortunately that undercuts the Rule of Law so essential to our democracy.

The skills I took to the State Department, aside from a background in international law, were largely those learned as Deputy Attorney General and Attorney General:. How to manage a government department and how to deal with Congress.

GWorks—What was the biggest challenge you faced at Justice?

NdeBK—The biggest challenge at Justice was obviously how to deal with the many aspects of Civil Rights for African Americans without the necessary legislative tools to do so prior to the Civil Rights Acts.

GWorks—At State?

NdeBK—At State it was how to get a large Department with far too many senior officials to respond in timely fashion to inquiries. The contrast with Justice was clear and discouraging from an administrative viewpoint. The failure to respond quickly and clearly was, I believe, caused by the need for too many internal concurrences and resulting compromises and was the main reason for State’s declining influence with Presidents Kennedy and Johnson. The second major challenge was, of course, the declining fortunes of the Vietnam war. It is probably unnecessary to point out that neither challenge was effectively met and resolved.

GWorks—You have known and worked with Presidents and Supreme Court justices. For example, Byron White was instrumental in bringing you into the Kennedy Administration. And, you talk about his and Thurgood Marshall’s appointments to the Supreme Court.

The Supreme Court’s membership has changed significantly since 1960s. In a 2009 speech, Chief Justice Roberts noted that all the justices at the time had experience as appellate court judges and that an effect of that was to move Supreme Court arguments and opinions to ‘firmer legal ground.’. With President Obama’s nomination of Elena Kagan, the President has chosen someone who has no judicial experience at all.

GWorks—What criteria should we consider when evaluating a potential Supreme Court justice?

NdeBK—I would expect any President to nominate a candidate whose views about law and government are generally compatible with his or her own. But social conditions change and new facts can influence old doctrine, and the important qualifications are ability to analyze clearly and decide accordingly within the limits on the judicial role. The candidate for our highest court should therefore have outstanding intellectual credentials and be regarded by leading members of the profession as an exceptional lawyer. Those credentials may narrow the President’s choices and make it difficult to appoint someone simply for political views. People with outstanding qualifications have their own skills which they will use over many years in arriving at opinions. Hopefully the candidate has firm values but an open mind on how they are best realized, a sense of the proper function of each of the branches of government, and no arrogance about the rightness of his own opinions. The cases which come to the Court usually are there because there are close questions of law involved and no obviously correct answer. Whichever way the case is decided there will usually be critics who would have decided it differently. Usually the Court through the conciliatory role of the Chief Justice, has tried to keep the differences as narrow a possible and leave room for changing factual circumstances in the future rather than pronounce broad rulings. Whether it has adhered to this approach in recent years is somewhat doubtful, and sometimes appears influenced by some of the partisan debate which today surrounds all our governmental institutions.

GWorks—Do you think a Supreme Court justice must be a judge before joining the Court?

NdeBK—It is unfortunate to have the Court composed only of persons with prior judicial experience. The argument for such a background is that the Congress has more material to assess how a judge is likely to decide from reading prior opinions, and to judge his or her view of “judicial activism.”. Neither argument is persuasive; the constraints on activism are far greater in Courts of Appeal than in the Supreme Court; appellate opinions give very little guidance as to how a judge will decide issues ten or fifteen years from now without the constraints inherent in further appeal to the Supreme Court. More important than these arguments is the huge talent that would be ignored. There would have been no Brandeis, Frankfurter, Black, Douglas, Warren, Jackson, White, Rehnquist, Powell, O’Connor, among many others. The diversity of having persons with academic, political, or legal practice experience is valuable to the Court’s decisions and many of the great Justices had no prior judicial experience. Any lawyer with outstanding credentials knows the limits of the judicial role and understands the legal process. Prior judicial experience may sometimes be useful, but clearly is not a defining credential.

GWorks—Do you think General Kagan is a good choice?

NdeBK—General Kagan has outstanding qualifications both intellectually and as the popular Dean of a great law school who worked to give balance to its faculty. Dealing with professors requires skill and General Kagan demonstrated it.

GWorks—How did you think General Kagan did at the hearings?

NdeBK—She conducted herself well in the hearings—which is to say she offended no one. The Committee did not learn anything they did not know before she testified except perhaps that she has a good sense of humor.

GWorks—There has been considerable criticism of the Senate’s process to confirm a Supreme Court justice. Solicitor General Kagan referred to it in a 1995 article in the University of Chicago Law Review as a “vapid and hollow charade,” said Senators were missing civic opportunity and that nominees should be forthcoming about their views.

In your book, you talk about President Kennedy’s nomination of Byron White, whom you succeeded as Deputy Attorney General, to replace Justice Charles Evans Whittaker. The criteria used to evaluate his qualifications were simple, straightforward and non-partisan. And, after brief consideration, the Senate approved his nomination with a voice vote.

GWorks—Do you think the current confirmation process damages the Senate and/or the Court?

NdeBK—The current confirmation process damages both the Senate and the Court. It damages the Senate because it is obvious that some Senators in political opposition wish to demonstrate that the candidate has political views which they do not share, and that these views will influence the candidate’s decisions on the Court. Since the candidate will predictably deny that any personal views will affect his/her decisions, that the Court plays an apolitical role, and that cases will be decided in accordance with the law (including judicial precedents) the Senate learns little. At the same time the effort reflects on the Senate for trying to determine how the candidate will decide some current issues (which, despite obvious efforts, they regard as improper). Worse, it suggests to the public that the Court decides cases for political, not legal, reasons. So-called “judicial legislation” or “activism” is no monopoly of the political left or right. To some extent it is unavoidable; the precise application of words to facts is often uncertain and more than one result is reasonable. Further, inevitably one’s prior experience often gives facts a different interpretation or weight—an unspoken assumption which underlies a decision. There is no question that judges make law (the common law was all judge-made after all) for the simple reason that whichever way the Court decides new Law is made in many cases. If the decision is reasoned and the effort to decide the issue in accordance with how each judge (whether in the majority or dissent) sees the law, it is silly to refer to it as “judicial legislation” simply because one prefers the reasoning of one side to the other. But if the Senate suggests such decisions are “political” rather than “legal” it works to destroy essential confidence in the efforts of Justices to be objective (however difficult) and impartial. All we can ask of judges at any level is that they attempt to the best of their ability to apply the law impartially and as objectively as possible. But we know that reasoning objectively does not always mean the same result where people’s views are shaped by different life experiences.

GWorks—What, if anything, do you think could be done to improve the current confirmation process?

NdeBK—The executive branch is as guilty as the Senate in politicizing judicial appointments and the Rule of Law. There is no need to interview candidates for the judiciary as is presently done both in the Department of Justice and the White House. Since all the necessary information can be gathered in confidence from colleagues of the candidate and members of the judiciary to make a judgment on qualifications and personality there is obviously little to be gained from a personal interview. The interview itself suggests to many political pressure to support the nominating administration. Indeed, I felt when I was in the Department that an interview was improper because the Department was the principle litigant who would appear before the judge. We used the ABA special committee to do the interviewing and make an appraisal and found it very fair and thorough The FBI searched only for criminal charges. If we had reservations or questions we went back to the ABA or the FBI for further information. We did not permit the ABA to suggest candidates, but only to report on those whose name or names we gave them. I believe it was a very satisfactory system even though it depended heavily on the quality and political objectivity of the members of the ABA committee.

GWorks—Court observers have noted that with the retirement of Justice John Paul Stevens, the Court will no longer have a member who served in World War II. You served in the United States Army Air Force during World War II. Do you believe your military service offered you unique value as a public servant?

NdeBK—Service in the armed forces is an experience which, like other life experiences, enters into one’s perception of people, events and facts which may influence decisions. For some it may be of greater importance than others. My 27 months as a POW clearly had an effect on how I view incarceration of prisoners in our society, but how that interacts with other experiences I have no idea.

GWorks—Among the issues we contend with in the “War on Terror,” is where and how to try the people we capture. On taking office, President Obama announced he wanted the prison at Guantanamo Bay, Cuba closed within one year. In April 2009, in a speech at the National Archives, President Obama offered a Solomonic approach in which some captured terrorists would be tried in military tribunals and some in civilian courts. Some would never be tried. In November 2009, Attorney General Eric Holder announced that Khalid Sheik Mohammed and four others involved in the 9/11 attacks would be tried in civilian criminal courts in New York City. It is 2010. Guantanamo is not closed and there is little chance it will be close any time soon. And, the Attorney General has pulled away from his commitment to try terrorists in civilian courts.

GWorks—Should we try terrorists in civilian criminal courts?

NdeBK—Attorney General Holder was right in seeking to try those charged with terrorism offenses in civilian courts. Those captured fighting against our occupying forces can be tried in military courts. The question of security in civilian courts could be resolved by moving the situs to a military base and permitting coverage there by the press and perhaps even a limited number of the public. The problem with offenders in military courts is the long delays and the absence of very good evidence. I would not want to try persons in military courts charged with terrorism attacks here in the United States because the public, here and abroad, would not have the same perception of a fair trial.

I confess I have somewhat ambivalent feelings about trial in military courts. There is a tendency on the part of military commanders to press for conviction. On the other hand members of the various JAGS have been courageous in their dedication to fairness and due process. They deserve an opportunity to demonstrate that military tribunals are subject to the same rule of law as civilian courts.

GWorks—You have worked at the top of government and business and you have worked closely with leaders in the United States and abroad.

GWorks—What distinguishes a good leader?

NdeBK—Leaders become leaders because they can get people to identify with their goals and aspirations. Whether the leadership is good or bad depends on one’s views of those goals and the means of achieving them.

GWorks—Is there a trait(s) that good leaders share?

NdeBK—I don't know. I would like to think they are capable of appealing to our virtues more than our vices, to reason more then fear.

GWorks—What is the difference between leadership in government and leadership in business?

NdeBK—Business leadership is much easier because the goals are simpler and more clearly defined. So are the means. The two are similar only after the objectives and means are clarified and it becomes a question of execution. Most great political leaders are wartime leaders—a situation where the goals are well-defined and accepted.

GWorks—We often hear that government should be more like business. Do you agree with this idea? Why or why not?

NdeBK—There are times when I think government is becoming more like business with emphasis on money and personal power. But I think all people mean by this is that the government bureaucracy should be run with. efficiency of a well-run business. I think the concentration of power at the top, the arbitrary use of power to create efficiency, and the stifling of dissent are dangerous characteristics to import into government. The Founding Fathers were not concentrating on efficiency and did not want a powerful CEO. I think they were right. But we have to be careful.

GWorks—What advice do you give to young persons interested in a career in the law and public service?

NdeBK—I grew up with a passion for law and government. In our society they go together, because every right, privilege and benefit we enjoy depends ultimately on the Rule of Law. I think the legal profession needs to take stock of its role today where, regrettably, law has become a business rather than a profession in too many areas. The same can be said of politics, which isn’t a game which one party wins. Being a government official whether elected or appointed is an opportunity to make government work to the benefit of all. That isn’t easy and it should not be personally profitable. If you possess the necessary passion and dedication, it can be the most satisfying experience of your life.

GWorks—If you were to be delivered to a desert island and allowed only the books you could carry, what books would you bring?

NdeBK—Allowed only the books I could carry, my first choices would be books on how to survive since I don’t have a clue as to what would be involved in growing or finding food or water. If I still had room, I would take books on cultures and history I knew nothing about.

AUTHOR’S NOTES

Photo:. President Lyndon B. Johnson and Under Secretary of State Nicholas de Belleville Katzenbach. 30 January 1967. Yoichi R. Okamoto, White House Press Office. (Serial Number C4383-21A.). “This image is in the public domain and may be used free of charge without permissions or fees.”. For more information, please visit the LBJ Library & Museum.