It's good to be at TPMCafe, and I'm looking forward to discussing some of my 1960s experiences as deputy attorney general in Bobby Kennedy's Justice Department and attorney general and undersecretary of state in Lyndon Johnson's Justice and State Departments. (For intrepid readers interested in more, I go into further detail in my new book Some of It Was Fun: Working with RFK and LBJ.) The challenges we faced were difficult and important--civil rights, the Cold War, equal opportunities for women, the potential of the developing world. Today President Obama faces even more difficult problems. Some are similar; many are different. But although Bobby said as early as 1961 that "In the next thirty or forty years a Negro can also achieve the same position that my brother has as President of the United States," I can tell you most people in the 1960s never seriously thought that the problems of the United States in 2009 would be faced and, I think, resolved, by a black president. Certainly, that is progress. Nor do I think that when I confronted George Wallace to get Vivian Malone admitted to the University of Alabama anyone imagined that her brother in law, Eric Holder, would be attorney general of the United States for its first black president.

But I'm getting ahead of myself. I want to describe some of my experiences back then which I think may have some relevance today.

Throughout the 1960 election I was in Europe, on leave from teaching at the University of Chicago Law School, getting ready to do research on a Ford Foundation Fellowship in Switzerland. I took no part in the election process, which I followed as closely as I could in the French newspapers and the Paris Trib. 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! We wanted to change the world and in a sense felt we had earned the right to try. It is hard to put into words, but we felt that, after victory over Germany and Japan, this country could make the world a better place to live and work in--no mountain was too high to climb; no problem too difficult to solve. Arrogant? Perhaps. Hopeful? Yes. Determined? You bet.

I had never met Senator Kennedy or his family, but after his election in November, I began to fret that while Washington would be home to an administration I could identify with, I was stuck in Geneva with no part in it. Many friends had worked hard in JFK's support, and as their names became public as possible appointees in his administration, I felt more and more left out. When my law school friend Byron White, the legendary "Whizzer" of college and professional football fame, was named deputy attorney general to help young Bobby Kennedy, my wife Lydia told me to stop feeling sorry for myself and telephone Byron to ask him if any jobs were available. I did, and at his suggestion headed for Washington the next day.

Byron arranged a meeting for me with Bobby Kennedy to discuss the possibility of legal counsel. It wasn't a great job interview. He kept calling me "Professor" and I wasn't sure if it was flattering, sarcastic or simply neutral. I don't think either of us had the faintest idea what legal counsel did; the office had none of the notoriety that it has today with its opinions on torture, denying "enemy combatants" the protections of either Due Process or the Geneva Convention, virtually unlimited presidential power in wartime, and so forth. Those were not constitutional issues either of us was concerned about at the time. Mostly we talked about my teaching, how I knew Byron, and my children. He told me about other potential appointments, which included close friends from Yale Law that Byron had recruited as well as others--all with excellent professional credentials and none, to my knowledge, with personal political aspirations. The next day Byron told me that Bobby was recommending that the president appoint me as assistant attorney general to head the office of legal counsel. Talk about being lucky!

Both Bobby and I soon found out what legal counsel does. The most interesting and important responsibility is to provide the attorney general with legal advice and through him or her the president and the other departments and agencies of government. While, as a practical matter, the other departments of government have their own legal staffs, they turn to Justice if a difficult question of interpreting a statute or the constitution arises. The reason for this centralization of authority in Justice is simply that through its control of government civil and criminal litigation it will have the last word in any event, and it is better for government officials to be complying with the law than not. Further, it is always important that the government take a single and consistent view of the law. Legal counsel provides those opinions; if they have important political or policy repercussions they are cleared with the AG. There is, of course, a constant pressure to approve the interpretation the inquiring department or the White house desires. Today, the office of White House counsel performs many of the functions that legal counsel used to do, and 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--for more on this subject, see Jack Goldsmith's The Terror Presidency) rather than being a nonpolitical professional legal advisor.

If one is serious in one's belief that the Rule of Law is an essential element of our democracy then the importance of this mechanism is obvious. It means that the attorney general is responsible for determining the constitutional and statutory limits of the power of government officials, subject only to being overruled by the courts if the matter is one that can be litigated. It is a huge and important responsibility, but it only has meaning if the attorney general is prepared to render his opinions (usually through legal counsel) objectively, with professional honesty and integrity. It is the integrity of the process, not the desirability of the result, which is important. Legal counsel's job is not to come up with a clever argument, as lawyers often do in private practice, to justify a result his client wishes. He must seek to find that result through honest legal research, as do judges, not assume it. And he must be prepared to say no when for reasons of loyalty to the administration or what he views as preferable public policy, he would rather say yes.

In today's world, recent revelations may lead one to conclude such conduct is neither realistic nor practical. Government lawyers, like the private bar, sometimes simply look for arguments to justify what their political bosses want. But I disagree that such conduct makes any political sense. I will tell you why.

When Bobby Kennedy was named attorney general the appointment was almost universally criticized. He was too young, too inexperienced. Worse, he had run his brother's campaign and would be too political to serve Justice. In an effort to meet these criticisms, Bobby, mostly through Byron White, staffed the department with some exceptional lawyers with impeccable professional qualifications and no political baggage. My absence from the campaign was a political plus.

If Bobby had tried to politicize the department, to bend the law to his brother's political desires, to investigate his enemies and overlook the shortcomings of his political friends, not only would he have proved his critics right but he would have been faced with many resignations. Politicizing the department was never his intention and his staff was not appointed to protect him but to do the job the way it should be done. As time went on it became more and more obvious to the press and to congress that the department had integrity, and all of us, including Bobby, benefited from that reputation. Our arguments in court, our public statements, and our congressional testimony were treated with respect, not suspicion. Lawyers were proud to work in the Justice Department. Recruiting the best young lawyers was easy.

It really shouldn't be surprising to find out that good government is also good politics.