ORAL HISTORY OF ROBERT H. KAPP
This is the first interview session of Robert Kapp on behalf of the Oral History Project of
the U.S. Circuit Court of the District of Columbia. The interviewer is Irv Nathan. The interview
is being conducted at Mr. Kapp’s apartment in Chevy Chase Maryland on Monday, March 13,
2017 at 3:00 p.m.
MR. NATHAN: Today I hope to cover your family roots, your childhood and
schooling and your decision to go to law school. Subsequent
interviews will cover the phases of your legal career.
So, Bob, could you please tell us about your family history?
Mr. KAPP: Yes. I was born in Chicago, Illinois on March 9, 1934. My mother
was Gladys Harris and my father was Ben Kapp. My father was a
graduate of Purdue University where he attended the Pharmacy
School and he had a lifelong career as a pharmacist in Chicago. He
worked there with his brother Sol who was his partner. My mother
was a home maker. She worked for a short while after she graduated
college as a secretary. But then, after her marriage, she confined
herself to homemaking. She was a graduate of Northwestern
University in 1923 which was something of an accomplishment
because she was a Jewish woman in an era where Northwestern had a
very strict Jewish quota. They also had a fairly limited number of
women as students. My grandparents on both sides were born in
Lithuania near the town of Vilnius and they immigrated to the United
States toward the end of the 19th century. And I think, at least in my
mother’s father’s case, he emigrated because he was subject to the
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draft in Russia. Lithuania at various different times was part of
Poland and part of Russia. Whenever, as a child, I asked my mother
where her parents were from she always said Rush-Poland and that
was a fairly accurate description. Her father Louis Harris was a
haberdasher in Chicago and was reasonably prosperous at that. He, I
think, purchased the first automobile in his neighborhood and he also
got some of his children to university. My grandfather on my father’s
side was really never gainfully employed, at least during the period
that I knew him. He basically spent his entire time in the synagogue
in Chicago making up a minyan from day to day and his wife Sarah
was also a homemaker.
MR. NATHAN: How did your father afford to go to Purdue?
MR. KAPP: My father worked for a number of years while he was in high school
at the Chicago Public Library and his income was used principally to
support his family. He at one time told me that in his first year at
Purdue he lived in a room in the dormitories but never paid rent. He
was sort of a . . .
MR. NATHAN: Squatter?
MR. KAPP: Exactly, a squatter. I think that is probably pretty accurate. And in
those days, I think, university admission, tuition and so forth were
pretty nominal.
MR. NATHAN: And given this background where there was some money on your
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mother’s side but not on your father’s side, how would you describe
your own upbringing? Was it a privileged one or one that was more
modest?
MR. KAPP: It was clearly a modest upbringing, not privileged. We lived in what
I would call a middle class neighborhood in Chicago. My father,
although he had a reasonably successful pharmacy in Chicago, never
made a great deal of money at it. We were always comfortable but I
never felt myself very privileged. I worked much of the time that I
was in Chicago. Although that may not have been absolutely
necessary.
MR. NATHAN: Tell us a little bit about your schooling. Did you go to public
schools?
MR. KAPP: I went entirely to public schools. There was an elementary school in
my neighborhood in Chicago, the Stone School, which ran from
kindergarten through eighth grade. I attended that public school my
entire elementary school life. After I graduated, I went to a large
public high school in Chicago, Senn High School, which was not a
particularly good school. In fact, I would say it was a pretty poor
school academically. And when I finished high school I attended the
University of Pennsylvania in Philadelphia. I was in the Wharton
School there where I majored in accounting but spent a fair amount of
time in the College taking mostly classes in literature and history.
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Then, following graduation from the University of Pennsylvania, I
attended Michigan Law School. That’s where I graduated from.
MR. NATHAN: All right. I want to go back to childhood. First of all, did you have
siblings?
MR. KAPP: I have one sister, Lois, who followed the same pattern in terms of
elementary and high school education, also in public schools. And
then, when she graduated, she went to the University of Michigan
where she spent about two and a half years. She met the man who
was to become her husband at Michigan. He was moving back to
Chicago to go to medical school at Northwestern and so Lois
transferred to Northwestern University. She lives in New York in
Manhattan. She, for a number of years, lived here in Washington and
worked basically as a social worker. She has not been employed
since moving to New York.
MR. NATHAN: Have you been close to her?
MR. KAPP: I would say we are reasonably close. We’re in contact with one
another on a regular basis but, except for the period in which she
lived here in Washington, we have never lived in the same city. We
have kept in contact. I wouldn’t say we were exceptionally close.
MR. NATHAN: I wanted to ask you about your memories of childhood. Were there
things that occurred that were memorable that maybe played a part in
your later career?
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MR. KAPP: It’s interesting. I remember one experience that I had when I was in
elementary school. We had a careers program and were asked to
select three careers that you thought you might like to follow. My
first choice was chemist. And then I think after that it was pharmacist
and then finally, the third choice, was a lawyer. The teacher had
representatives of these various professions visit our school to speak
to our classroom. And I remember that I thought the lawyer was
pretty much a bag of wind and that I was not at all interested in
pursuing the legal profession. But, by the time I finished college my
mind had changed.
MR. NATHAN: Were the chemist and pharmacist impressive?
MR. KAPP: They were more impressive than the lawyer. That was pretty sad.
The other thing in childhood that I remember that affected the
equation, always in somewhat surprising direction, was when I
started to express an interest in law school my father was extremely
discouraging. He had encouraged me to study accounting. His point
of view was so much affected by his depression experience. He
thought accounting was an extremely secure profession. And he
always talked about lawyers as – he said, well during the Depression
they ended up selling apples on the streets of Chicago. That was a bit
of hyperbole but I think it did express his preferences. Those are two
things I recall.
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MR. NATHAN: And how about in school, what’s your recollection of your school
experience, both in high school and in elementary school?
MR. KAPP: My elementary school experience was quite positive. I had good
teachers who encouraged the students. When I got to high school, the
high school was academically quite poor. I think about my junior
year when we were assigned a topic to select a biography and write
an essay about the biography or a review of the biography. I didn’t
select Abraham Lincoln or Thomas Edison or Jefferson or Franklin
Roosevelt, anybody of stature. I selected Wingy Manone, a one-arm
trumpet player. The thing that I always think back on is why didn’t
that teacher try to move me in another direction. But she didn’t and
that I think reflected some on the academic quality of the high school.
I enjoyed my high school years but academically, as I look back, they
were pretty poor.
MR. NATHAN: Why did you choose the one-arm trumpet player?
MR. KAPP: I have no idea. I assumed that I saw it on the bookshelf somewhere
and pulled it out. It was a biography.
MR. NATHAN: What kind of things did you read when you were a child in high
school?
MR. KAPP: In the seventh or eighth grade of elementary school a young man,
whose name was Jerry Dashe, moved into our neighborhood. His
father had owned a book store in Chicago and then had gone into the
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printing business. Jerry was a year older than I was and he was
already a quite serious reader and he influenced and encouraged me.
His interest was mostly in American literature and he introduced me
to Hemmingway and Faulkner and John Dos Passos and a whole
group of writers of that stature. The habit that was formed at that
time has continued pretty much throughout my life. My father was a
pretty serious reader but it was always non-fiction. He read
frequently just directly out of the Encyclopedia Britannica but had a
knowledge of fiction which I don’t know exactly where he acquired
it. He always had comments to make about my book selection and
they were accurate but he never, at least in his later years, read fiction
at all.
MR. NATHAN: You mean he had a view on whether you should read fiction?
MR. KAPP: No. He knew about the various authors and generally about what
they had written.
MR. NATHAN: What activities did you pursue in high school? Did you play sports?
Were you involved in drama?
MR. KAPP: I did play sports. I was not involved in drama. Surprisingly, I played
freshman/sophomore football in high school where I was the kicker
on the team. They would send me in typically on third down and I
had the option either to kick, run, or pass. I was not very successful
in any case. Then throughout my high school career I was on the
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track team. My best event was the low hurdles and I was actually
reasonably good at that. I also did the high jump and ran some relays.
MR. NATHAN: Did you participate in the debate team?
MR. KAPP: I did not.
MR. NATHAN: Did you travel at all when you were a child?
MR. KAPP: I did travel a fair amount. During part of the time, during the war,
there was gas rationing and during that period we didn’t travel all that
much. But I do remember a number of trips that we took. We went
from Chicago to Mammoth Cave Kentucky and visited it. We went
to Detroit and visited the Ford plant there. My father and I took a
train to Denver at one point and he rented a car and we drove up to
Pike’s Peak. It was, I think, the spring of the year, I was somewhat
shocked to find that when we got two thirds of the way up the
mountain it was snowing. During the summers we went to various
places in Wisconsin. We went to a resort in Elkhart Lake, Wisconsin
where my aunt and uncle and cousins also vacationed. We did that
for a number of years. Then slightly later we went to Eagle River,
Wisconsin, which was essentially a fishing area but had lakes in
which you could swim. It was quite a nice place and still is today.
Although I have not been back there in recent years.
MR. NATHAN: Did you have some jobs over the summers in high school?
MR. KAPP: I did.
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MR. NATHAN: What did you do?
MR. KAPP: For a number of years, I worked in my father’s pharmacy in Chicago.
What I mostly did there was dust bottles that went from one end of
the pharmacy to the other end. When I got to the last bottle I asked
my father what I should do next and he said the bottles in the
beginning are dusty again. So I would then start over and do that. So
I worked there on Saturdays for a number of years. And then my
uncle Herbert had a currency exchange also in Chicago. I worked
with him for a number of years in essentially a bookkeeping kind of
function. That was largely when I was in high school. Then I had a
number of odd jobs at various different times.
MR. NATHAN: Do you think dusting bottles and bookkeeping are not odd jobs?
MR. KAPP: These were more odd jobs. I worked at a golf driving range where I
shagged balls. The big thing was to be sure you didn’t get hit
because most of the golfers were aiming at you as far as we could
tell. Then I set pins in a local bowling alley a number of times and
delivered newspapers at various times while I was growing up. My
father had a friend who owned a pharmacy in downtown Chicago,
David Hillman. I worked for him for several years during the
summer time. Then, when I was in college, the father of a friend of
mine owned a paper box company in Chicago. As I was a student at
the Wharton School, my friend encouraged me to come over to help
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him develop a strategic plan which his father must have not taken all
that seriously. Then I worked for an accounting firm during three
different summers performing an audit function, also while I was in
college. And I think maybe the first year of law school as well.
MR. NATHAN: Did you have hobbies as a kid?
MR. KAPP: I did.
MR. NATHAN: What were your hobbies?
MR. KAPP: My major hobby was stamp collecting. I was quite serious about that
for quite some time. Then, as an adult, I gave that up and gave the
stamps and albums to a nephew of mine. The other thing was as I
was growing up in Chicago I never went to summer camp but I spent
the entire summer at home in my neighborhood with neighborhood
children. We played a number of games; Monopoly and various
other board games. I had wanted to go to camp but I had an uncle
who was physician and this was during the period of the polio
epidemic. He believed that camps were a breeding ground for polio
which probably was not true. But, he had an influence over my
parents so I never did go to camp. But by the time my sister was
ready to go to camp I think that either the polio epidemic had come to
an end or my parents were no longer operating under the influence of
my uncle. So she did go to camp.
MR. NATHAN: So I wanted to ask you about outside influences in your youth. When
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you were growing up as I calculated between the time you were seven
and twelve the World War II was going on. How were you
influenced by either the war that was going on or the Depression
which had just came to an end when you were young?
MR. KAPP: I certainly do remember the influence of the war, very much so. I
remember, for example, that we had a victory garden which I worked
on with my cousin in Chicago. We also had a civil defense corps and
I remember periodic drills and having a white helmet marked civilian
defense. Then the son of a very close neighbor of ours was killed in
the war and that had a pretty significant impact. I don’t know
whether those things influenced my life’s direction in any particular
way. The Depression by then was pretty much a thing of the past.
MR. NATHAN: Did it influence your politics in any way?
MR. KAPP: My father was a lifelong Democrat and a great fan of Franklin
Roosevelt. He liked Harry Truman as well. I’m sure that that had an
influence on my politics. My father was quite articulate about all of
that.
MR. NATHAN: What was your relationship with your dad?
MR. KAPP: My father was a very controlling figure, if you will. We had a good
relationship. He was extremely interested in education and made it a
point that both my sister and I take school seriously and were serious
about college. In addition, he was terrific at involving himself with
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my friends and talking to them about careers and education and the
like. All of that was extremely positive. He was though a very, very
domineering man. He had his own views about things and was not
reluctant to press for them. So he certainly, in terms of some of the
directions that I have taken, had a strong influence.
MR. NATHAN: I noticed that you did not travel to the East before you went to
college. You didn’t mention any place east of Kentucky.
MR. KAPP: We did go once to New York. When I was a junior in high school
my high school made a trip to Washington. It was a week here. I
was very impressed by that. The following year, my mother and
father took me to Washington again for another week there. I
remember visiting all the monuments and going to the FBI and to the
Capitol and all that. That clearly had an influence on how I felt about
coming to Washington when I graduated law school and how I felt
about government service.
MR. NATHAN: How did you choose to go to Wharton?
MR. KAPP: I graduated with about 425 students in my high school class. About
half of them did not go to college. Most of the other half, with maybe
a dozen exceptions, went to either college in Chicago or to the
University of Illinois at Champagne Urbana. But it was my father
again who brought the Wharton School to my attention. I had never
heard of the Wharton School or the University of Pennsylvania. My
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father introduced me to that and encouraged me to send away for a
catalogue. I got the catalogue and it was, I thought, quite an
impressive document. I decided to apply and I was accepted and off I
went. There were two other students in my class that went East to
school. One girl by the name of Sue Glassman, who went to
Wellesley, and ultimately married Saul Bellow and was divorced
from him. The other was a woman who went to Colby College.
Other than that most of the people, as I said, either didn’t go to
college or went locally.
MR. NATHAN: And when your dad suggested Wharton was that in connection with
your becoming an accountant?
MR. KAPP: That was certainly part of his thinking. And the truth of the matter is
that I did major in accounting. He thought going to a business school
and studying accounting was the way to go to obtain a degree of
security.
MR. NATHAN: What was your college experience like?
MR. KAPP: I had, I thought, a terrific experience at Pennsylvania. I became for
the first time a quite serious student. I did work hard in academics.
The other thing was that I was very active in fraternity life at college.
I was the president of my college fraternity and I went to the national
conventions. I was really quite seriously involved. Although I now
look back at it in a very jaundiced way because I see how
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undemocratic it really was back then. I certainly didn’t realize that at
the time.
MR. NATHAN: What fraternity were you in?
MR. KAPP: I was in Phi Epsilon Pi which was an all Jewish fraternity. In fact,
the fraternities were divided into two groups. There was a group of
eleven Jewish fraternities at Penn and then the rest had no Jewish
members at all. There was a really clear cut division.
MR. NATHAN: Did you pledge or interview with any of the non-Jewish fraternities?
MR. KAPP: I did not.
MR. NATHAN: What activities did you pursue in college? Did you do sports again?
MR. KAPP: I played fraternity sports. I did work on the student newspaper for
two years. Basically on the sports section. I had all this involvement
in track in high school but I had gotten hurt in my senior year which
finished off my track career. I did spend two years as the manager of
the Penn track team.
MR. NATHAN: At Penn?
MR. KAPP: Yes.
MR. NATHAN: You went there as an accounting major, did you spend your whole
college career as an accounting major or did you switch at some
point?
MR. KAPP: I did spend my entire career there as an accounting major. But, what
I found fairly soon was that the curriculum in the Wharton School at
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that time was really an intense commerce and finance curriculum
without a lot of room for studying other subjects. By late in my
sophomore year or early junior year, I began to figure out ways of
carving away from some of the commerce and finance requirements
because I was increasingly interested at that point in some of the
liberal arts programs at the College. I did take a number of literature
courses and history courses. Although I did continue and finish off
my major in accounting.
MR. NATHAN: You mentioned that your high school was not academically excellent
and at Wharton I assume there were a lot of people who had been to
private high schools earlier, did you think that you were prepared for
it or did you have any concerns about that?
MR. KAPP: When I arrived at Penn I found that most of the students in my first
year class were graduates of either boarding schools, prep schools, or
private high schools of various kinds and I did feel that I was way
behind. I had particular limitations in terms of writing ability. I
remember getting my first English essay back and getting a D+ on it.
I felt very much behind that first semester but as things started to
evolve I found that by the time I got to my second semester there I
thought I had pretty much caught up. In fact, I really started doing
quite well.
MR. NATHAN: What was it in college that led you to think about law school?
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Especially when you had that windy guy as your role model…
MR. KAPP: I think what happened to me, which I think is what happens to a lot of
college graduates, was trying to figure out what to do and not
knowing exactly what I was going to do. In some respects, as I look
back, I think going to law school was something of a default
direction. It seemed interesting and all to me but I didn’t go into
college thinking I was going to work hard and see if I could get into
law school I just wasn’t going in that direction at all at that time.
But, as I say, I think in the end it was pretty much a default option.
MR. NATHAN: And how did you pick Michigan?
MR. KAPP: I had something of a feeling that I wanted to go back to the Midwest.
I did not want to stay in the East.
MR. NATHAN: Why was that?
MR. KAPP: I think by that time I had soured a bit on Eastern life, if you will.
There is a difference, I think, between the East and the Midwest in
terms of elitism and so forth. I applied at the beginning only to
Midwestern law schools Illinois, Wisconsin, Northwestern and
Michigan.
MR. NATHAN: Was there something about Philadelphia, life in Philadelphia that did
not please you?
MR. KAPP: I think there was a certain amount of elitism that I perceived.
MR. NATHAN: Was that in the faculty or in the community?
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MR. KAPP: Among the student body, mostly. Ultimately, I was accepted at
Harvard. I had been deferred and my father encouraged me to go at
that point. But, I did have a scholarship at Michigan and I was
interested in going back to the Midwest. That’s sort of what
happened.
MR. NATHAN: What made Michigan stand out from the other Midwest law schools?
MR. KAPP: Among the major law schools in the Midwest I think Michigan
ranked among the highest, probably the highest. The other two law
schools in the Midwest that had outstanding reputations were
Northwestern and Chicago.
MR. NATHAN: Did you apply to those?
MR. KAPP: I applied to Northwestern. I was accepted at Northwestern but I went
to Michigan.
MR. NATHAN: What were your experiences in law school?
MR. KAPP: Law school for me was an extremely positive experience. I really
liked the curriculum. I worked very hard. I did quite well. I had first
thought when I started that my major interest would be in tax because
that was a normal outgrowth of accounting. But I got interested at
that time in other things as well; constitutional law and so forth for
one. That was a great experience for me. I met my lovely wife there.
Michigan was a great change in one particular respect. Penn and the
Wharton School was basically an all men’s school. There was a
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small college for women at that time at Pennsylvania. It was very
hard to have a normal social life there. The whole social life was
patterned on having three or four big weekends a year and importing
dates in if you will. Then when I got to Michigan it was a wonderful
place with a lot of lovely women. From a social standpoint, I was
quite a bit happier.
MR. NATHAN: You’re referring to the university not necessarily the law school?
MR. KAPP: No. The entire university
MR. NATHAN: I assume there weren’t that many women in law school
MR. KAPP: No there weren’t. In my law school class there were two women out
of a class of 325.
MR. NATHAN: You mentioned Jean, your wonderful wife, what was she doing in
Michigan?
MR. KAPP: Jean was in the liberal arts and science (LS&A) program at Michigan.
When I got there Jean was a sophomore and we began seeing one
another in her junior year which was my second year.
MR. NATHAN: Wait I thought you met her at Michigan?
MR. KAPP: Yes, my second year of law school. We dated throughout my second
year there. Then we both went to Europe between my second and
third year of law school and became engaged and were married after
my senior year. Jean had stayed on for an additional semester to get
an education certificate. That was it.
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MR. NATHAN: How long have you guys been married?
MR. KAPP: We will have been married 59 years in June.
MR. NATHAN: That’s amazing. How many children do you have?
MR. KAPP: We have four children. A son Steve who lives in Philadelphia and is
a hedge fund manager. We have a daughter, Lisa, who lives in
Brooklyn Heights. She’s a high school and middle school teacher. I
have a son Jon who is a lawyer and works in the general counsel’s
office of General Dynamics. I have a daughter Diana who’s a
freelance writer.
MR. NATHAN: How many grandchildren?
MR. KAPP: We have ten grandchildren.
MR. NATHAN: Let’s talk about law school where you said you had a very good
experience. Were there particular influences in law school that led to
your later career?
MR. KAPP: There were. There were two professors particularly who had a major
influence on me. L. Hart Wright who was a tax professor. I took
three or four different courses from him and had a really strong
relationship with him. He was an outstanding professor. He
cemented my interest in tax law. The other was a professor S.
Chesterfield Oppenheimer who was an antitrust professor and who
had served in the Department of Justice and at various other
government posts over the years. It was his ultimate influence that
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led me to come to Washington and to work in the Department of
Justice.
MR. NATHAN: Because of the antitrust connection?
MR. KAPP: I had to give two possible divisions of Justice as preferences after I
was interviewed; one was the Tax Division and the other was the
Antitrust Division. They assigned me to the Tax Division. I would
have gone either way at that time.
MR. NATHAN: It could have made a big difference in your career
MR. KAPP: It might have made a big difference
MR. NATHAN: One of the professors was a tax professor who was an influence?
MR. KAPP: Yes.
MR. NATHAN: When you were at school were you on the Law Review?
MR. KAPP: I was on the Law Review. I was admitted to the law review after my
first year. After my second year, I became part of the four or five
people who were described as the upper staff of the Law Review.
MR. NATHAN: On the editorial board?
MR. KAPP: On the editorial board. I spent an enormous amount of time on the
Law Review, particularly in my senior year. In my second year,
mostly it was a matter of writing a law review note.
MR. NATHAN: What did you write your note on?
MR. KAPP: I wrote my note on – it was an antitrust note – I forget the details of
it. It had something to do with defining the market I think. At that
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time I was still interested to some extent in antitrust law.
MR. NATHAN: Before you graduated what was the policy back then, did you intern
at a law firm during the time you were at the law school?
MR. KAPP: I did not. It generally was not the practice in the way it is today.
Today, most law students between their second and third year intern
at a law firm. Almost everyone goes to work in a law firm during
that summer. That was not the case at all when I was in law school.
In fact, as I mentioned before, in the summer between my second and
third year of law school I traveled in Europe for 11 weeks. I never
really thought at all about doing anything that was legally oriented
during the summer.
MR. NATHAN: Did you have jobs when you were in college?
MR. KAPP: I did have a couple of jobs. At one point I ran a laundry service from
my fraternity house. I collected the laundry of various people in my
fraternity house, took it down to the laundry and then returned it to
them. That was one thing. In undergraduate school, in two different
years, I waited on tables in my fraternity house.
MR. NATHAN: What year did you graduate from Michigan?
MR. KAPP: I graduated from Michigan in 1958
MR. NATHAN: When you were thinking about a first job did you think of others
besides the Department of Justice?
MR. KAPP: I did. I interviewed a number of law firms in New York and Chicago.
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I pretty early on came to the conclusion that there was a real bar
among the major firms for Jewish lawyers.
MR. NATHAN: A bar meaning a prohibition?
MR. KAPP: A prohibition, yes.
MR. NATHAN: Not a group of lawyers?
MR. KAPP: Not a group of lawyers, no. There just really was not very much
open. There were law firms that you could go to but just not very
many and most of the really prominent ones had a prohibition as you
say. When I did interview, the Department of Justice sent the
Assistant Attorney General for the Lands Division, to interview
people at law school. I was very enthusiastic about it and that kind of
played into the early interest that I had in Washington.
MR. NATHAN: When you were thinking about either a law firm or Justice did you
have a long range goal in mind as to what you would do in the
practice of law?
MR. KAPP: I really did not have a long range view. I certainly thought by the
time I got into the Department of Justice that I would likely try to
pursue a career as a tax lawyer. I didn’t expect to stay in
Washington. Jean and I both had some interest in San Francisco. I
had some interest in Chicago. Jean did not share that. And certainly,
as time went on, I thought if there was an opportunity in Washington
that I’d very much like to pursue it.
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MR. NATHAN: You mean in private practice in tax?
MR. KAPP: In private practice, yes. After about three years in Justice I did join
what was then Hogan & Hartson.
MR. NATHAN: As you were growing up had the thought of public service been on
your mind which maybe led to the Department of Justice?
MR. KAPP: I think not particularly. As I look back from college, I had not
awakened yet to the broader social problems in the country and in the
world. I had very conventional kinds of attitudes. I wasn’t
particularly interested at that time in politics or government. There
were some things that happened later on that changed my direction
very significantly. But certainly in my college years I was not yet
awake I don’t think.
MR. NATHAN: Why don’t we leave it here and next time we’ll take up starting at the
Department of Justice and what your career was like at that point.
MR. KAPP: Ok.