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Oral History of STEPHEN J. POLLAK
Fifth Interview-February 13, 2003
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The interviewee is Stephen J. Pollak, and
the interviewer is Katia Garrett. The interview took place at the Shea & Gardner law firm at
1800 Massachusetts Avenue, in the District of Columbia on Thursday, February 13, 2003, at
10:00 a.m. This is the fifth interview.
Ms. Garrett: Steve, you read the transcript from your last interview. Is there anything that you
wanted to add to what we discussed at that time about your career prior to
entering the government?
Mr. Pollak: No.
Ms. Garrett: Then let’s talk about the Department of Justice. Tell me how you came to work
there.
Mr. Pollak: In the early summer of 1961, First Assistant to the Solicitor General, Oscar Davis
telephoned and asked me whether I would be interested in working in the
Solicitor General’s office. The office was nine attorneys then and two, maybe
three, of them, including Bill Doolittle and Wayne Barnett, had been at
Covington & Burling. I think it was Wayne who suggested me. I said to Oscar
that I was interested and proceeded carefully to consider whether I wanted to do it
if I was offered the job. I recall almost nothing about interviews I’m sure I had
with Oscar and with the SG, Archibald Cox. I received an offer and, after a lot of
soul searching, accepted. I went to work in the SG’s office around November 15
or 18, 1961. It was a signal decision in my life and was absolutely correct even
though I do not consider myself a solid fit as a brief writer in the SG’s office. My
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talents are more related to human contact and oral presentation and tactical
concerns, including oral argument. Nonetheless, I took the job. Brief writing was
not one of my longest and strongest suits, and I thought in a Calvinistic way that
taking a job in full-time brief writing with some oral argument would be good for
me.
Ms. Garrett: And was it?
Mr. Pollak: I thought I could think through the problems well. Another major activity in the
office was providing memoranda to the Solicitor General on whether to seek or
oppose certiorari or take appeals. That was a fascinating side of the office where
one learned the length and the breadth of what the government does and what the
issues that come to the Supreme Court are. I thought I was strong in that realm.
In any event, it was a great experience and I never was sorry that I did it.
Ms. Garrett: Tell me a little bit about how the SG’s office ran, who you worked with and the
kinds of cases that you worked on when you were there.
Mr. Pollak: The SG’s office was located on the fifth floor of Justice, along Ninth Street.
Solicitor General Cox had a fine office at the southeast corner of the building on
the fifth floor. He had an intern, a young person who came immediately from
clerking on the Supreme Court and generally stayed a year, whose office was
along Constitution Avenue moving from east to west. The rest of us, of which
there were seven or so, had our offices going from south to north along Ninth
Street, and mine, I believe, was 5613. There were one or two attorneys who had
offices across the hall facing on the inner court. I was the last office going down
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from south to north. Next to me was a permanent person, a long-time employee
in the office, who cite-checked and, you might say, policed the briefs to make
certain that they were all technically correct. The Office took immense pride in
having its briefs perfectly produced and they always were. It was much more
complex then. We sent them to the Government Printing Office which gave us
marvelous service and could turn them around overnight no matter how long they
were. The only SG I served as Assistant to the Solicitor General, which was the
title of all of us, was Archibald Cox, a former professor of law at Harvard and a
simply super Solicitor General. He set high, high standards which he applied to
himself and to all of us, and had respect across the length and the breadth of the
government and great sway on positions the United States took at the Supreme
Court. He was assisted in managing the office by a First Assistant, Ralph
Spritzer, who was a career employee and had a responsibility as the second
reviewer, the ultimate reviewer before Mr. Cox, of all briefs and memoranda in
particular subject matter fields. Before Spritzer, that person was Oscar Davis, a
long-time employee attorney who was named to the Court of Claims by President
John Kennedy shortly after I got to the office, and served with distinction on that
Court (later known as the U.S. Court of Appeals for the Federal Circuit). As the
newest member of the office, I was responsible for organizing the going away
party for Oscar.
Ralph Spritzer stepped into Oscar’s job and there was a Second Assistant
who assumed Ralph’s position when Oscar left. That was Daniel Friedman,
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Danny as we called him. Danny had responsibility for certain areas of
government, including antitrust. He had come from the Antitrust Division. Dan
later was named to the U.S. Court of Appeals for the Federal Circuit and served
with Oscar on that Court. There were no other titles in the office. The rest of us
were called Assistants to the Solicitor General and each of us had an area of
emphasis. Wayne Barnett was the tax reviewer and expert. Bruce Terris had civil
rights and I’m not certain who had what other areas, although I came to have a
responsibility for underwater lands and boundaries. At one point in my service, I
reviewed with and for Mr. Cox issues relating to the ownership of “mud lumps”
in the Louisiana-Texas area where the Mississippi runs into the Gulf. There was
an issue whether the Tidelands Act of whatever year, perhaps 1949, had deeded
those mud lumps to the states, or whether they remained in the possession of the
federal government. There were millions of dollars in oil under the mud lumps
and the states of Louisiana and Texas, I understood, wanted them. That issue was
presented to President Kennedy and he asked Cox for an opinion on the meaning
of the statute. I read all of the legislative history which was voluminous because
there had been a filibuster. Believe it or not, I never was able to find that the issue
had ever been consciously addressed by the Congress. It was amazing. I can
remember calling it “casus omissus.”
People came and went in the Office. In addition to those I’ve named, I
served with Phil Heymann who became a professor of law at Harvard and later
head of the Criminal Division in the Carter Administration and Deputy Attorney
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General with Janet Reno in the Clinton Administration. I served with Frank
Goodman, who became a professor of law at the University of Texas, and Nathan
Lewin, who later was Second Assistant in the Civil Rights Division when I was
Assistant Attorney General there. I don’t recall serving with any women
attorneys in the Office while I was there, which was a reflection of the times.
Cox’s SG was a wonderful office. We, of course, worked on our own
separate matters, worked very hard, long hours, and applied high standards.
Generally, the people in the Office went to lunch together, often to the Federal
Trade Commission cafeteria on the seventh floor of that nearby building.
Mr. Cox, as all of us called him, ate with us on Friday. I learned about the
government’s law offices and the Department of Justice offices in that job. I
related to the appellate sections of the various DOJ divisions and the independent
agencies. There were outstanding career lawyers in government service, many of
whom I know today. There was Beatrice Rosenberg, who was Deputy Chief of
the Appellate Section of the Criminal Division. The Chief was Carl Erdley.
Those were accomplished attorneys. At the NLRB, the Appellate Section
included Norton Come, who was universally respected, and the draft briefs that
came from him and the NLRB were generally the best of the independent agency
briefs. The government was excellently represented. Harold Greene was head of
the Appellate Section in the Civil Rights Division. He had an outstanding set of
brief writers and thinkers and was the best of the breed. Mine was a rewarding
position to be in.
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Ms. Garrett: What was it like to appear before the Supreme Court?
Mr. Pollak: Well, it was scary until you actually stood up and then it was just exciting and as
stimulating an experience as I have ever had. I enjoyed every argument. I recall
that I always knew my case up one side and down the other. That is not to say I
made the best arguments that could be made. I wouldn’t be the judge of that, but
I considered it my responsibility to be ready for whatever questions the Court had
and I think I always was. I argued nine cases while I was in the Office, and
before I had my first case to argue I argued a few in the circuits, mostly tax cases
that the Tax Division boosted over to me as a result of my friend John B. Jones,
who was First Assistant there. Mr. Cox often argued two cases at each sitting,
sometimes even three. A sitting was two weeks long. His capability to do work
was surprising because, at the same time he was preparing and presenting oral
arguments, he was editing and writing major briefs and making decisions on
certiorari and appeals and reading prodigious amounts. It never seemed too much
for him. The arguments of his that I heard were brilliant.
Mr. Cox did not micro-manage the work of his assistants. When I argued
my first case, he attended. Afterwards, he gave me two words of advice that I
have always remembered. He said, perhaps because I did otherwise, but I don’t
recall, that if one was arguing second, he recommended making the argument that
you had prepared and not changing the argument you prepared because your
opponent had taken some unexpected tack. Second, he said that whether first or
second in the sequence of argument, he thought the advocate should always open
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with the advocate’s statement of the issue to be decided. As I recall it, he never
gave me any other advice on my arguments. Of course, I could learn something
and did from the editing of my draft briefs by my colleagues in the Office and by
Mr. Cox.
Ms. Garrett: Were there any memorable moments with any of the justices when you had your
arguments?
Mr. Pollak: I recall Justice Frankfurter being extremely active in questioning. I argued a tax
case that involved the precedential effect to be given to Internal Revenue
Commissioners’ letters. I believe that my position (that is, the government’s
position) was that they were not to be afforded precedential status such as one
would give a court decision. I remember making a metaphoric reference
comparing the number of letters to the number of snowflakes that fall in a heavy
snow, and remember the Court lighting up at the reference.
I recall arguing a case later in my time at the Office, which was about three
years, involving a member of the Air Force who had been disciplined. He was
represented by Sid Dickstein and David Shapiro who have since built a fine firm
in town. They had then just a firm called Dickstein & Shapiro. In the course of
the argument, perhaps in preparation for the argument, I recall identifying that
there was some element of facts that really was pivotal to the outcome that was
not in the record. I identified that in the argument, and the Court remanded the
case with instructions for the Air Force to address the gap in the record. It was a
situation where I thought the traditions of the Office were that we serve the Court,
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and so identification of the gap was called for even though it might lead to an
outcome that might not be a win for the United States. It was a firmly entrenched
tradition that all cases going to the Supreme Court were reviewed for error by the
Office and, where an outcome favorable to the government seemed unwarranted,
Mr. Cox would confess error, although that was rare.
Ms. Garrett: I would be interested to hear if you have a sense of whether the way the SG’s
office works within DOJ has changed since your time there.
Mr. Pollak: I don’t really know. I have an awareness that Paul Bender, who served in that
Office when I was in the Civil Rights Division in the 1960s, returned in the Carter
Administration in a position loosely referred to as the “political deputy.” I think
the First and Second Assistants took on the name of Deputy Assistant Solicitor
General in later years. The Solicitor General in my time was a presidential
appointee, as the rest of us were not, and could be expected to have had
communications with the Attorney General or even the President with respect to
Administration concerns about a litigation that could have political ramifications.
I don’t think that was improper, but it was rare. The Office never conceived of
itself as being swayed by politics. And I saw a lot of the Office through the end
of 1968, when Thurgood Marshall had succeeded Archibald Cox. He succeeded
Archibald Cox after Johnson succeeded Kennedy. I never found the Office
influenced by politics, although I think on the mud lumps issue President
Kennedy hoped that the issue would come out in favor of the states. I had a
perception that the members of the Senate and the House from Texas and
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Louisiana considered that a matter very dear to their hearts. I don’t know whether
that was a consideration that influenced Mr. Cox. I’m doubtful that it did in those
terms.
Ms. Garrett: What was the conclusion?
Mr. Pollak: The conclusion was that the mud lumps were the possession of the states. That
can be identified because Mr. Cox’s opinion on which I worked is in one of the
bound volumes of the Reports of the Opinions of the Attorney General.
I don’t know whether the Office has changed. My feeling is that its
members continue to conceive of themselves, as Lincoln Caplan wrote, as the
“Tenth Justice.”
Ms. Garrett: Did you ever have any arguments before the D.C. Circuit when you were in the
SG’s Office?
Mr. Pollak: I never did. I don’t recall what my earliest argument was in the D.C. Circuit.
One of the early ones that I recall was in a case I was handling for the United
Mine Workers of America Health and Retirement Funds concerning the legality
of a provision in the collective bargaining agreements that provided for funding of
the health benefit plans and pension plans that was challenged as a “hot cargo”
clause and a boycott violative of the antitrust laws, the Sherman Act, and the labor
laws. It strikes me that I had earlier arguments before that Court, earlier than
1980 or ‘81. My client won in the D.C. Circuit, but the decision was reviewed on
certiorari in the Supreme Court and reversed 6-3, opinion by Justice White. It
was called Kaiser Steel Corp. v. Mullins.
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I have had a number of arguments in the D.C. Circuit.
Ms. Garrett: When you were working in the SG’s Office, did you have any interaction at all
with Attorney General Kennedy?
Mr. Pollak: Yes, I did.
Ms. Garrett: Tell me about that.
Mr. Pollak: The first time I had any sight of him up close was a Sunday evening in 1962. It
must have been fall of 1962 when James Meredith was brought on to the campus
of the University of Mississippi to register as a student. A friend of mine, a law
classmate, Howard Willens, was First Assistant in the Criminal Division. He
telephoned me when I was having dinner Sunday evening, 7:30 or so, and asked if
I could come to the Attorney General’s Office to lend a hand. There were
problems respecting Meredith and there was need for some help. I said of course
and I went down to the Department.
I’d like to tell one other memory I have of the SG’s Office. We had many
appeals that the Criminal Division wanted to take and many briefings or certiorari
issues that came from the Criminal Division. They often involved issues of civil
liberties. The Criminal Division would be defending positions of the police and
the FBI, the prosecutors, against challenges under the Constitution, the Fourth
Amendment, the Fifth Amendment. We in the SG’s Office would make our own
judgments under the precedents and sometimes would conclude that the federal
behaviors or state prosecutorial behaviors or police behaviors didn’t meet the
constitutional standards. This could put us at odds with the Criminal Division.
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One day Jack Miller, Herbert J. Miller, head of the Criminal Division, sought a
meeting with the SG’s Office. We all gathered in Mr. Cox’s office and Jack
Miller came and addressed us about the need for strong enforcement of the
criminal laws. He brought − the issue may have been in respect to protection of
federal witnesses, because he showed us a set of large photographs of − as I recall
it − prosecution witnesses who had been killed and were shown in bloody
circumstances as a part of his presentation that we should be tougher about our
positions.
Ms. Garrett: Did it affect the positions the SG’s Office took on criminal matters that came up?
Mr. Pollak: I think each one was called on its own facts. It was a relevant consideration to
know that if the issue was witness protection, it wasn’t theoretical, that if
protection was breached, the witness might be killed. One of the good things
about the SG’s Office was its independence, so we had to reach our own
judgments.
In any event, I went to the Department that Sunday evening. Attorney
General Kennedy’s office was on the fifth floor down the hall to the west along
Constitution Avenue from the SG’s office. It was a large office with a large desk,
wonderful rugs on the floor, paintings on the wall. There was an outer office in
which there were two secretarial desks. Then still another outer office. I
probably didn’t know any of the coterie of people there that Sunday evening.
That may have been the first meeting I had up there. There was an open phone
line to the Administration Building on the campus of the University of Mississippi
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where the Justice Department persons enforcing the court order for admission of
Meredith were under siege by segregationists bent on keeping him out. I, along
with Ramsey Clark, then Assistant Attorney General in charge of the Lands
Division − he became Attorney General after Lyndon Johnson became
President − manned an open phone line through the early morning with the
University’s Administration Building where the federal officers were holed up.
On the other end of the phone line were Deputy Attorney General Nicholas
Katzenbach, who was the senior federal officer on the scene, and other Justice
Department leaders who were there with him, including John Doar, First Assistant
in the Civil Rights Division, Louis Oberdorfer who was head of the Tax Division,
and my friend and law school classmate Norbert Schlei who was head of the
Office of Legal Counsel. They were waiting for federal troops to come from
Memphis under General Abrams. I believe that the President, along with Robert
Kennedy and Burke Marshall, who was head of the Civil Rights Division, was
having conversations with Mississippi Governor Ross Barnett.
More than one time in those hours, Marshall and Robert Kennedy would
leave the Department of Justice and go to the White House, meet with the
President and then return. It was tense. My impression of the Attorney General
was that he was in good communication outward from the Department to the
President, good communication with the DOJ people at the University of
Mississippi, and with the people there in his office. He was calm and he was in
full command of the situation, which he handled in a quiet and orderly manner. I
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didn’t see it all, but I saw a lot of it. Abrams was long delayed in coming, and the
siege of the administration building was quite heavy and defended with tear gas
from the Federal Marshals and the members of the Border Patrol. The federal
people were running out of tear gas and one or more men of the Border Patrol that
I came later to know when I was in the Civil Rights Division were sent in a truck
to get more tear gas. They hadn’t returned and my memory is that the senior
officer present there, Katzenbach, asked for permission to open fire with live
ammunition if the siege became more threatening. My memory is that the request
for permission was presented more than one time.
Ms. Garrett: To whom was it presented?
Mr. Pollak: Well, it was presented over the phone line that I was manning and I would present
it back or the phone would be picked up by Robert Kennedy. In any event, of
course, the only decision that could be made to do so would be made by or in
concert with the President. I never heard any discussions with the President, but I
knew what was conveyed. Even with the tear gas the defense of the federal
personnel was extremely difficult. The truck came amidst a lot of hostility of a
physically and potentially injurious nature and drove through that and brought in
more tear gas at a moment when I think the supply had run out. Permission to use
live ammunition was never given. I thought that that was an outstanding
judgment by the federal leaders, the President, Robert Kennedy and Burke
Marshall. It would have been a far more searing experience and dividing
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experience for the country had lethal force been used and persons died or been
wounded.
Of all the involvements in history that I have had, that evening produced
something the whereabouts of which and even existence of which I have no
knowledge, but it is a document that I think history deserves. I was maintaining
this phone from let’s say 9:00 p.m. until 2 or 3:00 in the morning, maybe later,
and because of the significance of the communications, I kept a full log of all the
communications, the time and what was said and the speaker. I know that
Ramsey did the same when we shared and spelled one another. That log seems to
me to be an historically significant document, but I don’t know what ever became
of it. I have thought that maybe it is at the Kennedy Library in Massachusetts, but
I don’t know.
Ms. Garrett: Have you ever gone to look?
Mr. Pollak: No. I never followed up on it. Finally, Abrams and the troops arrived and
matters cooled down. It taught me one lesson: movement of the military is not
instantaneous. The President was calling in the most urgent terms for the
movement of the troops there.
Ms. Garrett: And how far did they have to go to get there, do you know? Was it across the
states?
Mr. Pollak: Memphis to Oxford. Oxford is where the University of Mississippi was. I think
it’s more like an hour and a half, something like that. It took a long time. I recall
phoning Sol Lindenbaum, who was a career attorney and longtime assistant in the
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Attorney General’s Office and a wonderful person. I called him at home at about
4 or 4:30 a.m. to come in and work with me in drafting a declaration for the
President federalizing the Mississippi Guard. I think that was the occasion when I
did that. I had more than one all night of activities at the Department of Justice
during one crisis or another. My observation was that Robert Kennedy performed
very well there. I think the outcome of the Meredith crisis was the proper one,
that the federal court orders were enforced. That is what it was all about. The
Court had ordered that Meredith be admitted and the state and its governor were
not obeying the order and not protecting the campus from those who would
prevent Meredith’s admission.
I had more contacts with Attorney General Kennedy, but not many. The
next contact I recall involved me more closely for a longer period with him, but I
was never what I would call an intimate colleague of his. He was committed to
having a domestic peace corps which would be focused on assisting the
disadvantaged in the United States. At his urgings, President Kennedy designated
a cabinet level Task Force on a National Service Program. The push to carry out
the mission was Robert Kennedy’s. He did it primarily through staff persons at
the Department who were part of an office dealing with juvenile delinquency. A
working task force was created, that is, personnel who had offices on Jackson
Place near the White House. It was run by a friend of Robert Kennedy’s named
David Hackett who had been the model for Phineas in A Separate Peace by
John Knowles, a book about boys at a prep school. Kennedy and Hackett had
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attended Milton Academy together. The task force was engaged in developing
legislation creating a domestic peace corps and supporting its passage by the
Congress. It came under attack from Representatives H.R. Gross of Iowa and
Sam Devine of Ohio, two Republican, fiscally-conservative members, who
attacked the task force, contending that it was a lobbying effort and that budgeted
federal revenues designated for use by cabinet departments were being unlawfully
reprogrammed to the task force. Robert Kennedy, my understanding is, asked
Deputy Attorney General Katzenbach to get a lawyer for the task force to defend
it against those charges and to make certain that it was proceeding in ways which
were legally sound. He may have had other purposes, including providing the
Task Force with legal advice as to how it could make its presentations to the
Congress more effective. Katzenbach had been a professor at Yale Law School
during my first year or so, and I knew him some. He asked me if I would do it. It
was then close to or at the end of the ‘62-‘63 term of the Supreme Court. In the
SG’s Office, we were looking toward summer briefing, but not any further
arguments. The Attorney General’s request wasn’t one that could be turned down
lightly, so I did it. I assisted the Task Force through late August when the Senate
passed the service program bill 44-40. That was not a big enough margin to
assure passage in the House and the bill died in that Congress.
I returned to the SG’s Office for the 1963-‘64 term. But in the course of
serving as counsel to the Task Force, I saw something of the Attorney General
and met with him one or a few times. I have a memory of one meeting in which I
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reported to him on what the Task Force was doing. I’m sure he had reports from
others. His friend Hackett was running it. Richard Boone was there who had
been in the Department’s Office of Juvenile Delinquency. I have the strong recall
that Kennedy’s interest was merits oriented and intelligent and quite of a nononsense nature. He wanted to know what was going on. He wanted to be sure
that the Task Force was focused on a program which would be of real assistance
in Appalachia and in the pocket areas of poverty. I formed a very positive view
of him.
Ms. Garrett: You mentioned during your tenure in the SG’s Office, crossing paths in some
respect with a couple of individuals who later served on the District Court here in
D.C., Harold Greene and Lou Oberdorfer.
Mr. Pollak: Yes.
Ms. Garrett: Tell me about them at that time.
Mr. Pollak: I had met Oberdorfer when I interviewed at Cox, Langford, Stoddard & Cutler.
He was there. That was in probably 1955-‘56. Lou was head of the Tax Division.
Lou was from Birmingham and had close associations there. He had clerked for
Justice Black. His wife Elizabeth came from down that way, Montgomery.
Robert Kennedy looked to him for knowledge of the South in connection with
racial issues and relied on him, as did Burke Marshall. All the while Lou was
running the substantial Tax Division which was responsible for all litigation
relating to Internal Revenue Code matters, as well as tax legislation of concern to
the Department. He was, in fact, a right-hand colleague of Robert Kennedy.
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I have one story about Byron White. I was in the Department when he was
the Deputy Attorney General. I was working way late at night and must have
been working with people including the Deputy. It may have been on some crisis
or another, but I recall walking down Tenth Street, along the west face of the
Department with White. We were talking about influencing the course of the
government. He pointed up towards the building and said, “We’ve got about as
much chance of doing that as moving this building off its foundation.”
(Laughing). It’s a memory. I also remember that I did speak to him when I was
named the head of the Civil Rights Division. He said to me, “Well, that will grow
you up.” I didn’t have much interface with him, but always had high regard for
him. Byron White was a major force in staffing the leadership of the Department
of Justice for Robert Kennedy. He graduated from Yale Law School. Byron
helped identify the best from that school, and that included Burke Marshall, Lou
Oberdorfer, Bill Orrick, and Nick Katzenbach.
Harold Greene was head of the Appeals Section of the Civil Rights
Division. I did not have any real relationship with him while I was in the SG’s
Office. I came to know him when I joined the Civil Rights Division in March of
1965. We crossed paths in the Division for a portion of that year until he was
named to the Court of General Sessions by President Johnson. I had a big role in
presentation of the Voting Rights Act to the Senate, and Harold was a primary
drafter of the statute. I was new to the substantive area, would look to Harold for
guidance, and came to know him well.
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Ms. Garrett: What was he like?
Mr. Pollak: I have spoken about him at various occasions at which he was honored, including
when his portrait was hung at the District Court. My views of him are reflected in
the remarks that I’ve given about him. He had assembled an outstanding office of
appellate lawyers, an office that drafted briefs of excellence in the shortest
possible space of time, because the pace of civil rights events and litigation didn’t
allow any extra margin of time. Issues were always being presented in one court
and then in an appellate court right away, like the question whether the state of
Alabama could prevent the Selma-Montgomery march from taking place.
Harold had a sterling reputation in the Department. He was a leader by
example and by intellect. He was full of enjoyment in what he was doing. He
had a mischievous smile and often made statements of a nature to go with his
countenance. He was just an outstanding member of the Civil Rights Division
and an outstanding lawyer for the government. To set him on the course of being
a judge was a wonderful decision for the country and great for Harold. He was
cut out to be a judge. Harold and his appellate people drew these great civil rights
statutes, the 1964 Act and the Voting Rights Act of 1965, based upon the facts
that the litigation in which the division was involved produced. The statutes were
well drawn because they stemmed from facts which had been hammered out on
the harsh anvil of that litigation. In voting, for example, the department would
win a case, but then the procedures of the defendant would be changed so that the
registration of minorities would still be denied. The Voting Rights Act was drawn
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to cure that and did. While credit goes to Harold, there are a lot of persons to
whom it goes. Harold was one of those few at the center.
Ms. Garrett: He was also similarly involved in the drafting of the Civil Rights Act of 1964?
Mr. Pollak: Probably even more so, or at least equally so. I wasn’t there for that statute which
had been presented in 1963 by President Kennedy to the Congress. It did not
succeed in passage until Kennedy had been slain and succeeded by Johnson.
Harold and the Division had a major role. Of course, pieces of that statute were
added at the urgings of the Congress, particularly, the equal employment
provisions in Title VII. The Department had a lot of concerns about those
provisions, as reflected in the legislative history, concerns that they would sink
the statute.
Ms. Garrett: Gender was one that was added?
Mr. Pollak: Right. The Virginia Congressman, Judge Howard Smith, I recall, head of the
Rules Committee. He thought it would sink the statute, but he was wrong.
Ms. Garrett: It worked out to the benefit of many.
Mr. Pollak: It did. In any event, the Department was the major supporter of those great
statutes and Harold and his people had responsibility for assembling the written
record and drafting the testimony. As Nick Katzenbach has said, when he would
testify on the Hill in support of the Voting Rights Act, he would testify from a
written text prepared by or under Harold Greene’s direction without ever having
read it before delivering it. He had that measure of confidence in Harold Greene.
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I’m sure the testimony was outstanding. Harold was a very enjoyable person to
relate to.
Ms. Garrett: Did you continue your interaction with him after he became a judge?
Mr. Pollak: I did. In 1967, I became President Johnson’s Advisor for National Capital
Affairs. In that position, I had a lot to do with the local court system. Harold was
Chief Judge of the then Court of General Sessions. When Dr. King was slain and
riots broke out in Washington, I was head of the Civil Rights Division. The Civil
Rights Division was looked to by the President and the Attorney General to assist
in addressing the riot conditions and the administration of justice in those mass
arrest situations. I related directly to Harold in his conduct of the Court of
General Sessions. Then, for all the years after, I made it a purpose to see him for
lunch. With our wives, we shared social occasions. In all my time, I had only
one case in front of him.
Ms. Garrett: How did that go?
Mr. Pollak: It was a case for the UMWA Health and Retirement Funds. I think it went
through discovery. We had various motions presented to the Judge. Ultimately, it
settled without the merits being decided, as did most of those cases, of which
there were many. Harold was so quick on the bench. I often talked to him about
what he was doing on the court. When I was going to present remarks at the
hanging of his portrait, I spent time reviewing his papers in relation to the AT&T
case and talking to him about that. Both he and his wife were hurt by the
criticism leveled at the outcome. Some people were saying he was busting up the
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finest telephone service in the world. I thought he did a wonderful job and a great
thing for the country. In any event, he was applying the antitrust laws to the facts
presented to him by the parties.
Ms. Garrett: Some people said he had a reputation of being rather difficult in the courtroom
and in chambers. Did you witness any of that or hear any of that?
Mr. Pollak: No. Like a number of the judges, I think he felt restive under the flood of
criminal drug cases. He was committed in opposition to the Sentencing
Guidelines. I think he hated what they required him to do. He probably was short
with advocates who he thought were presenting positions that were not entitled to
credit. He probably was not happy when bored and perhaps may have been short
with people under those circumstances. But I wasn’t there and don’t know about
it.
Ms. Garrett: You talked a little about Lou Oberdorfer, Judge Oberdorfer. Did you continue to
have any interaction with him after he became a judge in the District Court?
Mr. Pollak: I had important litigation in front of him for the International Ladies’ Garment
Workers’ Union. I represented the ILGWU. The Reagan Administration had
conducted an informal rulemaking leading to the lifting of certain regulations
enforcing the minimum wage/maximum hours provisions of the Fair Labor
Standards Act and adopted in the 1930s as part of the New Deal – the regulations
banning homework in the needle trades and several other industries where “sweat
shop” labor conditions had been endemic. We brought suit for the ILGWU
challenging the rulemaking order lifting the ban on homework as “arbitrary and
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capricious” in violation of the Administrative Procedure Act. The case was styled
ILGWU v. Donovan. Judge Oberdorfer ruled against me a couple of times in that
litigation. We appealed and the Court of Appeals reversed him. The Judge never
held it against me. I have always been friendly with Judge Oberdorfer. He was
President of the D.C. Bar. I was later on. He and I at different times were cochairs of the National Lawyers’ Committee for Civil Rights Under Law. We went
to Lawyers’ Committee meetings together in New York City before he was on the
bench. I knew him professionally and knew him socially. Starting in the early
1990s, I worked quite closely with him in connection with my heading up the
Oral History Project of the D.C. Circuit’s Historical Society of which he has been
the chair. It has been a close relationship with him in the 1990s and now, the
2000 decade.
The two judges that I was closest to personally were Judge Gesell, who had
been my mentor at Covington, and Judge Harold Greene. I always made it a point
to see them for lunch periodically because the bench is such a cloistered place. I
saw them year in and year out and considered them friends. I was always
fascinated by the lives they were leading as judges. I don’t know if I have spoken
that much about Gesell as a judge.
Ms. Garrett: You haven’t. Would you like to talk some about him?
Mr. Pollak: I have had this long litigation for the UMWA Health and Retirement Funds over
the legality of the clause in the collective bargaining agreement that required
contributions to the Funds on coal purchased. As I mentioned earlier, it was
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challenged as an unlawful “hot cargo clause,” that is, a clause aimed at
encouraging or forcing non-union mining operators to unionize. My
responsibility was to defend the legality of the clause. There were many
litigations brought challenging the clause and many litigations brought by me for
the Funds to collect unpaid royalties required by the clause that led to challenges
to the clause. Those cases were multidistricted in the Western District of
Pennsylvania after we lost a case in the Supreme Court, Mullins v. Kaiser Steel
Corp., reversing a D.C. Circuit decision sustaining the clause on one particular
theory. There were 50 or 60 individual lawsuits involving millions of dollars. I
presented one of those cases to Judge Gesell and, as I said earlier, one to Harold
Greene. I also litigated the same issue in cases before June Green, Joyce Hens
Green, Tom Flannery, and Stan Harris. In the Court of Appeals, I presented the
issues to Malcolm Wilkey and Abner Mikva. I just can’t recall all of the judges
who heard the issues. I was litigating in Birmingham, Alabama; Pittsburgh,
Pennsylvania; Beckley, West Virginia; Richmond, Virginia; Springfield,
Missouri; Columbus, Ohio, as well as the District of Columbia − everywhere,
before many, many different judges. In any event, I presented the case to Judge
Gesell on our theories, but couldn’t quite convince him on motions to dismiss or
summary judgment. Previously, in the multidistrict proceedings, the issue of the
legality of the clause on its face was presented in the Third Circuit and the court
held the clause was not illegal on its face. So then we had many, many cases in
which operators contested the legality of the clause as applied to their
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circumstances. One of those cases was presented to Judge Gesell, involving the
Youghiogheny & Ohio Coal Company situated along the Ohio River. It was fun
to litigate that case before Gesell. He addressed whatever issues you presented to
him. I recall his saying to me in one of the lunches I had with him — I didn’t have
lunches when I had a case in front of him, and that goes for Harold Greene as well
— that he thought that whatever issue was presented to him, he owed the parties a
memorandum setting forth his reasons for his ruling. And he did that.
Gesell was a master administrator, he knew how to delegate when he wanted
to delegate, and he knew how to lead. He would have made an excellent
Secretary of Defense back before he ever was a judge. I think he had some hopes
of being asked to hold a high position in the Kennedy Administration. I believe
he was asked if he wanted to be head of the Criminal Division.
Ms. Garrett: By President Kennedy?
Mr. Pollak: Well, by somebody. But he did not consider that was something he wanted to do
at that stage of his life.
Ms. Garrett: Did the Department of Defense come up with him?
Mr. Pollak: I don’t know that it came up with him other than in my mind. He was named to
the bench at about the same time that my nomination as Assistant Attorney
General for Civil Rights was announced. That was a coincidence.
Ms. Garrett: Is there any more that you want to say about Judge Gesell on the bench?
Mr. Pollak: There is so much that one could say about him. He was an outstandingly effective
attorney in private practice. Anybody who had him as their lawyer was fortunate.
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All the time that I worked with him I never heard him express a hankering to be a
judge, but it was a master stroke that put him on the bench. He was I think an
outstanding judge and was really cut out to do it. He was restive as a judge with
the flood of drug cases and equal employment cases. When significant criminal
jurisdiction was moved from the District Court to the Superior Court in 1972,
Judge Gesell didn’t approve of that. He didn’t want to lose the more significant
matters that his Court was dealing with. He expressed to me one time a concern
that he wasn’t on the federal bench to be a personnel administrator, which is what
he thought many Title VII cases involved. He had strong views. He was
impatient with formal trappings of life and bureaucracy. Some aspects of service
as a judge made him impatient, but not the carrying out of the business of being a
judge and administering justice.
Ms. Garrett: Anything else on Judge Gesell; any anecdotes that you want to share?
Mr. Pollak: No. He just was a great trainer of me and made my life in the law richer and more
rewarding and enjoyable. My major mentors have been Gerry Gesell and
Archibald Cox. They knew how to practice law, how to cut square corners, and
were great minds. They were very confident men. I was fortunate to serve with
them in one capacity or another. I worked with many great lawyers and persons:
Burke Marshall, John Doar, Harold Greene, and my partners here at Shea &
Gardner, Larry Latto, Bill Dempsey, Wendy White, Tony Lapham. I’ve been
fortunate.
Ms. Garrett: I think we had almost finished our discussion of your time in the SG’s Office.
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Mr. Pollak: Right.
Ms. Garrett: I think you had just returned from your time with the Task Force on the National
Service Program and you were there.
Mr. Pollak: I came back. I handled my responsibilities in the SG’s office. Kennedy was
slain. Life hobbled along and President Johnson asked Shriver to head up an
effort to achieve a broad anti-poverty program. The bill was drafted under the
direction of the Office of Legal Counsel at Justice which was then headed by
Norb Schlei, my law school classmate. That had gotten underway probably in
early 1964 and was part way along, Schlei asked me to draft the portion that
would create a domestic peace corps for inclusion in the bill. I did that while still
serving in the SG’s office and continued to have some relationship with the
legislative effort insofar as assembling the material for support of that portion of
the legislation dealing with the domestic peace corps. The lawyers for the Task
Force on the War Against Poverty, as it was called, headed by Shriver, were
Murray Schwartz who later became a dean of UCLA Law School and was at the
time a professor there, and Harold Horowitz who was or had been General
Counsel of HEW. Hal had been on the faculty at the UCLA Law School before
joining the Kennedy Administration. Murray would fly in each week from L.A.
to spend some of his time helping Shriver. When those two men returned to the
law school in 1964 in the later spring, I succeeded them as Shriver’s lawyer and
then worked with Shriver to support presentation of the legislation to the
Congress. There were three of us who were the supporting personnel. Two were
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in the Bureau of the Budget, Ann Oppenheimer and Chris Weeks. We were the
working staff. I pulled away from the SG’s office and started doing this full time.
Ms. Garrett: Were you still employed by the SG’s Office and detailed to this task force?
Mr. Pollak: That is what it must have been. Adam Yarmolinsky was Shriver’s deputy and
Shriver had a charming capability of pulling major figures into his activities.
There was a whole cadre of persons with national names who were working with
him in dealing with the Congress, but the paper materials and inside efforts were
handled by Weeks, Oppenheimer and myself, as I recall, with direction from
Shriver and Yarmolinsky. As matters went along, I worked with members of the
Congress and dealt with drafting the statute and developing its legislative history.
There’s a story I’ve related elsewhere, probably in the oral history I did for the
Archives back in 1969: Congressman Frank Thompson of New Jersey was a
major supporter of the legislation and was a major figure on the Education and
Labor Committee of the House which held hearings on the bill. He and I thought
up the name of the domestic peace corps, VISTA. He thought of the name and I
gave the letters their meaning, which was. “Volunteers in Service to America.”
We did that one day in his office. I brought the name home to my children and
they laughed and said, “Dad, that can’t be the name, VISTA is a car wax.”
Anyway, it became the name. I had very close associations with the persons on
the House Education and Labor Committee as a result and with various Senate
people. Some of the old National Service Program people came over and worked
on the poverty bill. Dick Boone was a major figure on the community action
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portion. That was a whole activity until the bill passed in the summer of ‘64.
Then I worked with Shriver on getting a budget appropriation which passed in
late August 1964. Then we launched the program. I had a major role setting up
the law office and hiring attorneys.
Ms. Garrett: And this was with the Office of Economic Opportunity?
Mr. Pollak: Yes. The location of my office kept shifting because we had temporary quarters.
First, I remember being at the corner of M and 15th Streets, the southwest corner
of M, across from the Madison Hotel. It was reportedly a building in which there
was a brothel in World War II. Then our offices moved to 19th and M. Shriver
brought in the Counsel to the Senate Labor and Public Welfare Committee,
Donald M. Baker, to be General Counsel and he named me Deputy General
Counsel. Don was a wonderful colleague. I hired Jim Heller, Tony Partridge and
Jim Siena as attorneys, got them to come on board, and we helped create the
poverty program. I was disappointed that Shriver didn’t name me the General
Counsel, but my zeal for the program and for the challenge of creating it was not
diminished. I knew I was a walking encyclopedia of the legislative history and
the meaning of the statute. I had wonderful files of the development of the
legislation which I left at the Office when I went to the Civil Rights Division in
March of 1965.
At that time, about March 1965, Robert Kennedy had resigned as Attorney
General. He was running for the Senate. Burke Marshall, who headed the Civil
Rights Division, was retiring, and John Doar, his deputy, was succeeding him.
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Nick Katzenbach who succeeded Kennedy as Attorney General asked me if I
wanted to interview to be Doar’s deputy. I had always wanted to be in the Civil
Rights Division. Originally, I wanted to go there in 1961 with Burke Marshall. I
said yes I wanted to interview and did so. John Doar offered the job to me, and I
took it. I felt conflicted about leaving the poverty program in its infancy, and I
thought I would not have done so had I been General Counsel but that as Deputy I
could bow out. I wanted to be in the Department of Justice and thought I was
more of a litigation lawyer anyway. I wrote a letter to Shriver explaining my
decision and will attach it to this history.
There were fascinating issues that Don Baker and I dealt with at OEO,
sometimes in the middle of the night, when Shriver was wanting to make grants
and get the program going. We were writing memoranda on whether grants could
be made to church-related organizations. Don was a strong Catholic as was
Shriver and we were battling out those issues, drawing those lines.
Ms. Garrett: I wanted to ask you a little about that since you had some experience with the
issue. What are your thoughts on how that issue was developed, particularly in
the current Administration now being referred to as grants to faith-based
programs?
Mr. Pollak: I have always had a strong belief in the separation of church and state called for
by the Constitution. The poverty program had maybe six titles establishing
operating programs. Title I created the Job Corps. Title VI enumerated the
powers given the central management; and created VISTA. The question whether
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religious-related organizations could be recipients of funds came up primarily in
connection with community action grants pursuant to Title II. I don’t remember
exactly where we drew the line, but we concluded that the Constitution did not
bar funding of programs fighting poverty that were managed by religious-related
entities. That’s my recollection. Shriver wanted that outcome, not because he
wanted to fund religious organizations, but because those groups — and I’m using
the term “groups” loosely because often they were created especially to be
recipients of OEO grants — were committed to serving the poor and what we
wanted to do was to get programs going that would serve the poor. I recall
battling through the issue with Don Baker in the middle of the night because
Shriver was announcing grants in the morning. I’m sure that the archives will
include the memoranda that we sent to him on this issue.
But I want to relate one thing that seems relevant also to today’s issues.
There is much talk about wanting locally-based organizations to make their own
decisions. We had money to fund community action activities. Many of the
would-be applicants came to us at OEO and said tell us what to do. Tell us what
we should apply for and we’ll apply. They didn’t know what they wanted. They
needed the leadership of the federal government to get it going. That has always
influenced me in thinking that the federal government has a call on outstanding
minds to create these programmatic activities. To push the programs out of
Washington and out of the federal government into the states is often a sacrifice
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of substance. On the other hand, states have more call on good personnel today
than then. I’m not a dogmatist on that issue.
I had a lot of contact with Shriver who was a man with a million ideas. He
was a good leader for that effort. Another person who was active in community
action was Lisle Carter, whose son Steve Carter is a well-known professor at Yale
Law. Lisle later became President of the Federal City College and president of a
consortium of black colleges in Atlanta. At the time we were working together at
OEO, Lisle perceptively said that what the poverty program was about was
breaking the bonds of the federal bureaucracy and forcing the federal government
into activities which the bureaucracy was not doing and was unwilling to change
to do. He said what OEO was really about was to get these activities going which
then at a later point would be absorbed into the old line departments and have
futures there. In a lot of respects, that is what happened, except for the
community action program, which I think got axed because it was not beholden to
political leaders across the country and because it was fighting for the poor. I
know that Mayor Daley of Chicago (the first Mayor Daley) had objections to
giving any money in Illinois or at least in Chicago to community action
organizations unless it was given under his auspices. I think he succeeded
requiring the money to be devolved as he wanted. He had that clout. It was a lot
of “réal-politique.”