Question: Does Whitewater ever feel like something you can't shake?
Answer: I really haven't had that experience. It's been some years now. For example in California, I think people tend to talk about my work on the wine cases. I've been very involved now for over three years in the wine-related litigation, so if I go to Northern California as I frequently do, the topic never arises. People want to talk about the latest on direct-shipping to consumers.
Q: Do you have any regrets about your involvement in the Lewinsky investigation?
A: I've said that the matter had to be investigated, but it would have been better, all things considered, for Attorney General Janet Reno to have appointed someone else to do the investigation. At that point the Whitewater and related investigations had all been given to us. We had not simply expanded the investigation, we had been asked to take on these additional matters. Thus a public perception emerged that the investigation was quasi-permanent in nature and just seemed odd in terms of its longevity.
Q: What was the best result for you from the Clinton investigations?
A: That a very unpopular task was carried out with dignity and integrity. Lawyers are sometimes given lousy jobs that are doomed to be controversial at the very outset. The nature of the task spawns dissention and at times vociferous criticism, but the lawyer's task is to press on and to carry out his or her responsibility regardless of public opinion.
Q: You know the first line of your obituary will mention that you were special prosecutor. Is that something you struggle with?
A: It is what it is and I cheerfully accept the fact that when one is called upon to investigate a very popular and charismatic President of the United States, that assignment will not go unnoticed.
Q: What was it like to transition into the role of independent prosecutor?
A: It was not a task I sought out, but I met with the three-judge panel in the U.S. Courthouse and they asked me to take on that responsibility. I have never run away from a call to public service. I appreciated straight away the unusual nature of the assignment.
Q: How did you handle that scrutiny?
A: It required an adjustment, but the media were almost always without exception polite and professional. Even in camping outside our house, there was a respect for our privacy. I entered into an understanding so that as a Starbucks addict, I could go to Starbucks in my street clothes without being filmed and would then say 'I'll be leaving for the office around 7:15.' Then the cameras would be rolling as I'd leave the house officially.
Q: You have a reputation for broad-based support of freedom of the press. Do you agree with that assessment?
A: Well I believe fervently in the First Amendment and in the judiciary's role in protecting the marketplace of ideas. I frequently invoke the Holmes-ian principle that the judiciary should be respectful of the political process, in terms of the fashioning of social and economic policy, but should be vigilant in protecting the freedom of the press.
Q: How did you decide that you wanted to run a law school especially while continuing to practice law?
A: For many years I taught as an adjunct professor at New York University and then George Mason University Law School. Then in the spring semester of 2004, I came out to Southern California at the invitation of Dean Parham Williams, a longtime friend who serves as Dean at Chapman University School of Law. I served as distinguished visiting professor at Chapman and by happy coincidence, Pepperdine's dean search process was underway at exactly that time.
Q: What drew you to the position?
A: I considered it a way to achieve a balance between teaching, writing and law practice. I also love teaching, enjoy the classroom and deeply admire Pepperdine's mission.
Q: What would you describe as the high point of your career?
A: My highest professional point was serving as a judge even more so than serving as Solicitor General, which was a great honor.
Q: Why is that?
A: I loved the judicial craft and the judicial calling. As much as I loved and continue to love advocacy, it was very fulfilling to try to do the right thing in the right way. And I was very privileged to serve on an extraordinary court with judges, some of whom have gone on to affect and shape American law, such as Antonin Scalia and Ruth Bader Ginsburg.
Q: What ties you to the practice of law at this point in your career?
A: I love the practice of law. I love working on real matters involving real clients. I happen to think it is a good thing for people in the legal academy to have closer ties to the profession. After all, we are training people and educating people to work in the profession.
Q: How did you choose law in the first place?
A: I was torn between grad school and law school. I was seriously considering a career in college teaching and possibly public service, so I first went to graduate school at Brown University in a Ph.D. program. I loved Brown, but I didn't care for political science at the graduate level. So I worked for the State Department for a year after getting just getting a masters' and then I entered law school.
Q: Where do you get your interest in politics?
A: I was very interested in politics as a kid, was very active in campus politics and was class president at a large public high school in San Antonio. Then while at George Washington, I worked on Capitol Hill for a Republican congressman from Texas.
Q: You spend a great deal of time in working for clemency of death-row inmates. What drives your passion in this effort?
A: Clemency is an endangered species. The last governor to grant clemency to an individual on death row was Gov. Ronald Reagan. The Supreme Court of the United States has written quite powerfully that clemency is a vitally important part of the administration of capital punishment in the U.S. in order to guard against a miscarriage of justice. We have reached the stage in this country where governors simply defer to courts even though the judiciary is saying governors should be playing a role as constitutional officers.
Q: There are a lot of people who got a perception of you as a hard-line conservative in the Clinton days and who may be surprised at your work for clemency of death row inmates. Does anyone ever ask you about why you do it?
A: We all tend to indulge stereotypes, but stereotyping tends to be a very nasty business. It fails, by definition, to capture the essence of the person and his or her professional aspirations and goals.
Q: What in particular ties you to the Michael Morales case?
A: Michael should not be on death row. He has accepted responsibility for his terrible crime. And it was a terrible, heinous crime. (Morales is awaiting execution for rape and murder.) The reason he should not be executed is powerfully set forth by (Superior Court Judge Charles McGrath) who wrote the governor urging clemency because of the effect of perjured testimony in the sentencing phase which rendered Michael death-eligible.
Q: How have you seen your prestige affect the spirits of the inmates you work for?
A: While working on the Robin Lovitt case in Virginia (for which California Lawyer named him Attorney of the Year 2006 in the pro bono category), I visited him on death row and I could see the gratitude for the legal services from Kirkland & Ellis. It wasn't so much directed at yours truly. But he knew there was a team working energetically and creatively in his defense. He was immensely grateful for the legal team championing his cause. (Lovitt's sentence was commuted to life in prison in November 2005 for his murder conviction.)
Q: After you got your law degree at Duke, you clerked for Chief Justice Burger. What was that like?
A: I was deeply honored to be there. I felt terribly undeserving because I wasn't even first in my law school class or editor-in-chief of the law review. So I was very grateful to be there. It was likely to be the best professional experience of my lifetime. It proved not to be the case, but it was such a high point of my very young life. I became very close to the many people on the court. There was a strong sense of an extended family. We were quietly working at the center of a great storm. (At the time there was constitutional law debate over the death penalty, the aftermath of Roe vs. Wade and desegregation cases were still coming before the court).
Q: But then the chief justice asked you to stay on at the end of your year with the Court?
A: I clerked for two years. (One year is customary) The Chief Justice was kind enough to ask me to remain a second year, but as he liked to say, 'Ken did not graduate with his class.' He held me back for a year, so to speak. So I served, which was unusual, for two years. And that was July 1975 until August 1977.
Q: How would you describe growing up in Texas and your childhood?
A: Perfect, lovely, a wonderful home life with the most admirably functional family in the world. It was a loving household. My father was a minister and a barber to make ends meet from time to time.
Q: How did that shape you?
A: It made me appreciate so much the surpassing value of the nuclear family and the indispensable role that parents play in the nurturing of children, among many other things.
Q: What are your goals for Pepperdine?
A: To be faithful and true to the great culture of this school. There is a family feel here that is much to be admired, in my judgment. At the same time, we want to expand the understanding and appreciation of Pepperdine within the academy and the profession.
Q: Describe your typical day.
A: The day is Pepperdine-centric with some time for Kirkland & Ellis matters during the course of the day, but especially evenings and weekends. Sometimes I do that work early in the mornings. I frequently travel on matters around the country, so I'm actually at an advantage as an early riser because I tend to be up around 5:30 or 6. That is the time when I tend to think about the law practice.
Q: What drew you to the wine work at Kirkland?
A: I am not a wine connoisseur. I do drink wine and enjoy it. I was really drawn to it and this is going to sound so boring but I was fascinated with the intersection between the dormant commerce clause, a judge-created doctrine, and the wildly expansive text of the 21st Amendment, which empowers states to regulate alcoholic beverages.
Q: What does that mean in layman's terms?
A: Here you have the text of a constitutional amendment which essentially says states can do whatever they want to in the regulation of alcohol. The judge-created doctrine under the commerce clause dictates that states cannot discriminate against other states' products and services based on geographic origin.
So the intriguing thing about the wine litigation is this: does the text of the 21st Amendment trump this longstanding principle of judge-made law? Happily for the wine community, the answer was 'It does not.'
Q: What has been your greatest challenge?
A: I would say as we all struggle to maintain an appropriate balance between professional life and its myriad demands and the compelling demands of family life, I don't think I've done a very good job over the years in achieving that balance. Not a miserable job, but not a very good job. It's one of the reasons I don't play golf or have serious hobbies that really engage me.
Q: What are your plans for summer?
A: I'm going to be in the South of France for my son's wedding in July. And then we will go on a biking trip through the Loire Valley with a number of friends. We enjoy biking, but we're not serious cyclists.
Titles: Dean, Pepperdine Law School; Of Counsel, Kirkland & Ellis LLP
Born: July 21, 1946
Education: B.A., political science, George Washington University; M.A. in political science, Brown University; J.D., Duke University
Personal: Married, three children, one grandchild and another on the way
Most Influential People: Judge David Dyer, Justice Warren Burger and former Attorney General William French Smith
For reprint and licensing requests for this article, CLICK HERE.