A Conversation With John E. Nolan Jr.
(Appeared in Washington Lawyer, May 2003)
John E. Nolan Jr. was commissioned a second lieutenant in the United States Marine Corps upon graduating from the U.S. Naval Academy in 1950. After service in Korea he enrolled at Georgetown Law School, clerked at the Supreme Court, and entered private practice at Steptoe & Johnson LLP. He has argued several cases before the Supreme Court. Following the passage of the National Environmental Policy Act in 1969, for a decade he litigated environmental cases, including representation of Alyeska during construction of the Trans Alaska Pipeline. He worked on the presidential campaigns of John and Robert Kennedy and served in the attorney generals office during the Kennedy administration. More recently, Nolan has served as an arbitrator and mediator, including mediation of the well-publicized Haft family lawsuits.
Where did you grow up?
I grew up in the Twin Cities area of Minnesota. In June 1946 I left Minnesota to go to the Naval Academy.
What prompted you to choose the Naval Academy?
When I graduated from high school in 1944, I was only 16 years old and many of the classmates with whom I graduated had gone into the service, which I didnt do because of my age. As they came home from the war they would ask, What are you going to do? When I said I was going to the Naval Academy, their general reaction was that I was out of my mind. Theyd had enough of the military by that point. The more I heard that I shouldnt do it, the more convinced I was that I wanted to go to the academy. It wasnt that I wanted to be a hero; the war was over. But I think I probably did want to share the military experience my contemporaries had had.
Did you enjoy the academy?
Although its not a place you go to enjoy, its a great school. It is rigorous and active and, on balance, I liked it. While I was there I discovered the Marine Corps, which I liked better. When I graduated I was commissioned as a second lieutenant in the Marine Corps. And that same month the Korean War began.
What was your assignment in Korea?
I was assigned to Baker Company, First Battalion, First Marines, in Korea and after a couple of weeks in the company I became a rifle platoon leader. I arrived at the end of the Chinese offensive in April of 1951, during the beginning of our sweep to the north. My company was initially at Chunchon and Yanggu, near the eastern end of the Hwachon Reservoir. May and June were active months, as we were attacking to the north. When the peace talks started later that summer, things quieted down. Then we went back on the attack at a place called the Punch Bowl in the fall.
You indicated that once the peace talks began you were not as active. Was that better than attacking constantly?
It is better to be attacking, strangely enough. You have the feeling that you are doing something. There is a momentum to moving forward, going up hill, and throwing off the enemy. After a line was established, we ran combat patrols out to the front. Usually our platoon would go out every third day, and the patrols always ran into somethingit wasnt just going out for a walk. That was less satisfying, and it was harder on the nerves than being on the attack.
Why did you want to serve in Korea?
Well, it was my job. Thats what I had been educated and trained to do. And I thought that the Korean War, coming right after the Basic School at Quantico, was like a postgraduate course, an opportunity to put that excellent training to practice.
What effect did the war have on you personally?
If you come through a war okay, it can be a worthwhile experience. There are certain events from Korea that I can remember with what seems to be total clarity. Sometimes, if the present is uncertain or challenging, thinking of those events can make the present seem easier. In that sense, its been a nice experience bank.
Was there frustration among veterans returning from Korea that their service wasnt recognized like that of World War II veterans?
For me it just wasnt an issue. At that time it was the only thing I had done other than go to school. Leading troops was a personally satisfying experience, and unlike others returning from wars, I really did want to talk about it. But I hardly ever found anybody who wanted to listen. Korea was 10,000 miles away; there was nothing in it for anybody in the United States. I understand that, and I certainly didnt worry about it.
When you separated from the service, you went to law school. How did you choose that avenue?
Looking back, it strikes me that I was pretty casual and not really focused about choosing it. During the war I hadnt really focused on what I was going to do after Korea. When I came back, I was assigned to the Navy Yard here in Washington and somehow the idea of going to law school came to life. In 1952, while still in the marines, I started attending Georgetown Law School at night. When I got out of the marines in early 1954, I enrolled full-time at Georgetown and graduated the following year.
After law school you clerked at the Supreme Court. How did you go about getting your clerkship?
I had applied to several Supreme Court justices and to the chief judge of the United States Court of Appeals for the District of Columbia Circuit, then Harold Stephens, a former solicitor general. I was working for Ed Williams at the time and he asked me what I was going to do when I graduated. When I told him, he said, Well, as far as clerking is concerned, thats all right if you clerk at the Supreme Court, but otherwise if you want to try cases, youre better off to just start doing it. If you carry somebodys bag into court for a year, youre better off. Somehow I accepted that judgment.
I blush to think of what I did next: Chief Judge Stephens offered me a job and I declined. Not only did I decline, but I told him why I was declining!
But the story doesnt end there. My excuse for what follows is that I was tired because it was the end of exam week in January of my third year of law school. I worked on the Hill as a Capitol policeman from midnight until eight in the morning, and then I went to school in the daytime. So, I usually leaned pretty hard on the exams and I was pretty wrung out by the end of exam week.
I had been offered a job at Covington & Burling and, after my final exam, I went there to accept. I was referred to Donald Hiss, Alger Hisss brother and then Covingtons hiring partner. When I told him Id come to accept their offer, he said, Thats fine, John. What else have you thought about doing? I told him Id thought about clerking at the Supreme Court. He had clerked for Justice Holmes and he asked what happened to that. I said that I had heard from Justice Burton and still had three applications pending, but after we spoke I was going to withdraw them. He looked at me like Id just stepped off a spaceship and said, You shouldnt do that. I mentioned that his letter said to respond by January 30 and it was January 30. Look, John, he said, you may not have a chance to clerk there, but if you do, you ought to do it because its a great experience. And you dont have to worry about us. You may be a good student, but you should understand that were going to be here next year whether you come with us or not.
I thanked him and walked across 15th Street to a phone booth and called Justice Clarks office as the first of several calls to check on the Supreme Court. His secretary answered, John Nolan, I was just going to call you. Justice Clark would like to see you. Can you come in and see us next Thursday morning? I said I had a class at that time (the irony of this is that with the law journal and all, I wasnt going to many classes at that time anyhow). She said, Well, you seem to be getting along all right. Skip your class. I did and shortly after the interview he offered me the job. Ive always been grateful to Donald Hiss.
What was Justice Clark like?
He was a wonderful human being; a great person to be associated with. Some justices are very secretive about what happens at conference, but Justice Clark would come back from conference to chambers and review the conference with his law clerks. We were interested, of course, and we knew more about the work of the Court at that time than clerks in other offices did. It was a great place to clerk.
What kind of practice were you engaged in when you first came to Steptoe?
I came to Steptoe & Johnson in June of 1956 and worked on all sorts of matters. There were about 20 lawyers in Steptoe & Johnson at that time and you could move around very easily. I never got involved in anything I didnt want to get into, and I never missed getting involved in anything that I wanted to work on.
You were enlisted with James Donovan to negotiate the release of prisoners from the Bay of Pigs. How did that come about and who were your clients?
It came about because I didnt go out to lunch one day in early December 1962. The Justice Department called and asked if I could come over and talk about something. I went over and met with Bob Kennedy, Assistant Attorney General Lou Oberdorfer, Mike Miskovsky from the CIA, and a couple of fellows from the State Department and IRS who were all working for the release of the Brigade 2506 prisoners. The brigade had been captured at the Bay of Pigs in April of 1961 and held prisoner for a year and a half. There had been various efforts to get them out. It was an obligation that President Kennedy and Bob Kennedy felt keenly.
I was called because I knew both Bob Kennedy and Jim Donovan. It was not easy for them to get along with each other, and as long as I was involved, it was not necessary for them to deal directly with each other. Donovan had told Kennedy he had an outline of a deal with Castro releasing the 1,100 men of the brigade for $62 million in pharmaceuticals and baby food, but he needed help organizing the logistics. Bob Kennedy asked me, Can you go up to New York and see what hes got so we can tell whether this is real? The next day I went to New York.
The client was the Cuban Families Committee, made up of mothers of men in the brigade. They had gone to see the attorney general and he suggested that they get a lawyer because there were a lot of legal issues involved and it was desirable that the exchange proceed as a private effort. Having never met him, Kennedy mentioned Donovan because he had arranged the exchange of a captured Russian spy named Rudolf Ivanovich Abel for American U-2 pilot Francis Gary Powers and an American student, Frederic Pryor, whom the Soviets were holding.
After spending the day with Donovan, I flew back to Washington and met with the crew at the Justice Department. We immediately started soliciting contributions from baby food and pharmaceutical manufacturers. Justice Department lawyers explained the tax consequences of their contributions, and provided antitrust clearance so they could talk with one another without raising antitrust issues.
Beyond the pledges of support, were you involved in the negotiations with Castro?
After we had commitments for the goods, the action moved to Florida and Havana. I started as a backup to Donovan at his request. When Donovan went to Cuba, I went to a safe house in Miami and he would call me when he needed something.
Once the exchange actually started, I worked with Donovan in Havana. In the middle of the release of the brigade, Castro stopped the prisoner exchange cold because he hadnt received $3 million he had been promised for the release of 60 wounded prisoners the year before. The Cuban Families Committee had paid $100,000 and they still owed $2.9 million. On the final day I flew back from Havana to Miami in the middle of the night and was picked up at Opa Locka Air Base by Lou Oberdorfer at four in the morning. I got on the telephone with Bob Kennedy and Nick Katzenbach to report that unless we give him the money, were not going to get anybody else out.
When Bob Kennedy asked whether our position was stronger one second before we gave Castro the money or one second after, I said I thought our position might be stronger before. But that didnt make any difference here. Without the money the rest of the exchange was stalled.
At the end Bob Kennedy asked what I was going to do and I told him I was going to return to Havana. He said, Dont you think you should wait until you see whether we get the money or not? I said, No, Im confident youll get the money, and I flew back to Cuba. Later that day the $2.9 million was transferred from Royal Bank of Canada to Banco Nacional de Cuba and the exchange continued. That night Donovan and I flew out with the last planeload of brigade prisoners. That was Christmas Eve.
After the brigade was released, we still had to deliver 80 percent of the stuff that we were committed to deliver. Castro continued to hold 22 Americans, including three who were agency employees. During January, February, March, and early April of 1963, Donovan and I made many trips to Havana, typically on weekends, to secure the release of the remaining 22.
The Cubans had a wish list, primarily of high-value prescription drugs, and much of the stuff we came up with wasnt on the list. The Cubans didnt want a lot of the products we had and some of our negotiations involved what to do with the goods.
Is Castro a charismatic guy?
Hes an interesting guy. Hes no friend of the United States, but hes intelligent and hes good company. We spent a lot of time with him, all of the conversation in English.
Castro is a nighthawk. Typically he would come to the house we were staying in around midnight and we would talk until six in the morning. He has a good sense of humor, as did Jim Donovan. Castro clearly enjoyed Donovans companythere was a lot of bantering and kidding back and forth.
On one trip, we drove across Cuba through Matanzas Province to the Bay of Pigs with him and fished on his boat while Castro told us stories about the invasion. We also went to three games of the Cuban World Series with him, and often to a beach house that he had at Varadero.
Have you been to Cuba since then?
I was there for three or four days in 2001 on the 40th anniversary of the Bay of Pigs. We spent two full days with Castro in large meetings. I had lunch with him a couple of times and talked to him at other times. Before that he had sent me a box of Cohiba cigars when our son-in-law met him at a reception when the Goodwill Games were in Havana.
How is he regarded in Cuba?
The reports from Cuba by everyone I know who has been there are very different from the stories about Castro that are written in the United States by those who have not been there. Castro is different and Cuba is different from the way they are frequently portrayed in the U.S. press. Often the American view of Cuba is largely formed by Cuban exiles living in the Miami area who hate everything about the present Cuban government.
That doesnt mean that Castro is a friend of the United States or that Cuba is a flourishing free-speech democracy. But its also not to say that Castro is dirty or slovenly or a nut. Theres nothing nutty about him. Hes an outsize figure and a unique presence to those remaining in Cuba. At 76 he has survived nine presidents of the United States and most heads of state in place on New Years Day 1959, when he came to power.
When did you first meet Robert Kennedy?
During the presidential campaign in 1960. I worked on advance and, by the end of the campaign, on scheduling. He was running the campaign.
Were you still practicing law during the campaign?
No. I was on leave from the firm. Tom Powers, another lawyer at Steptoe, and I had organized an appearance in the Maryland primary, a speech by Chester Bowles, who was Senator Kennedys foreign policy adviser and a prospective secretary of state if Kennedy were elected. After Kennedy received the nomination, Powers said, Our guy got the nomination. Dont you think we should do something in the campaign? I talked to the campaign headquarters and after a couple of days they called me. Wed like you to be the advance chair for the campaign. Id never heard the term beforeIve hardly heard it sincebut they said that Jim Rowe was advance chair for Stevenson in 1956. Rowe was a prominent Washington lawyer who had clerked at the Court and been a special assistant to President Franklin Roosevelt. I knew Jim a little bit, and I thought anything Jim Rowe did was fine, so I accepted the position.
I sensed that it would involve a lot of time, although I had no idea how much time. I went to see the Colonel, as we called Louis Johnson, and said I would like to work on the campaign, but if I did, Id have to be away from the firm.
Johnson understood. He had been Trumans finance chairman in 1948 when everyone expected Truman to lose. That made it hard to raise money, but with heroic effort Johnson raised the money and Truman got elected. Johnson told me to go work on the campaign.
After the election I returned to the firm, but during 1961 and 1962 I took on various assignments for the White House, the Democratic National Committee, and Bob Kennedy leading up to the Cuban prisoners exchange.
At some point when Donovan and I were going back and forth on trips to Havana, Bob Kennedy talked to me about coming over to Justice. But I had just been elected a partner in the firm, and we had also had our fifth child on December 16, 1962. It was a busy time and I declined. Later, when he asked me to be his administrative assistant, I accepted.
What did that entail?
I had thought being a law clerk was good; this was better. There are no prescribed duties or functions; you did whatever the attorney general asked you to do and whatever you thought might be helpful. For me that was mostly national security stuff and desegregation.
Bob Kennedy was very involved with everything in the administration, but he was intensely interested in National Security Council issues related to military or quasi-military initiatives in developing countries. I think that was probably part of the reason why I was there, although he never said that. I represented him at meetings of a committee called the Special Group CI (Counter Insurgency). The group included the undersecretaries of defense and state, and the heads of CIA, USAID, USIA, etc.
While I was at Justice, things in the South really heated up and I spent most of the summer of 1963 in the South in cities like Birmingham, Tuscaloosa, Gadsden, and Huntsville. We were working with Burke Marshall and John Doar in the Civil Rights Division of the Justice Department, and Lou Oberdorfer, who was the project manager of the desegregation effort.
Was that a particularly rewarding experience for you?
Yes. It was exciting. It was just like being back on a combat patrol in Koreacasualties were relatively light, but the atmosphere was electric. The typical situation included active demonstrations in the streets and at lunch counters and other public facilities. There were times when there were thousands of white people on one side of the street and thousands of black people on the other side of the street all night long. This was of grave concern to anyone who had responsibility for public safety or law enforcement. There were bombings and shootings and killings. The attorney general responded to a lot of calls for assistance in the summer of 1963.
How were you treated both by the local law enforcement and by the civil rights activists?
The civil rights activists treated us well because enforcing the law supported them. Local people were usually cordial but treated us warily, suspiciously.
Did this role affect your decision to work on Robert Kennedys campaigns for senator and president?
Not directly, but it was an example of the kinds of issues that Bob Kennedy was interested in and I was as well.
After President Kennedy was assassinated in November 1963, I traveled to Latin and South America in January and to Africa and the Far East in the spring of 1964. I advanced Bob Kennedys trip to Europe in June of 1964 and then traveled with him to Poland and Germany. In July I went to New York with him and handled the advance and scheduling for the Senate campaign. When he came down to the Senate, I returned here to the firm. When Bob Kennedy sought the 1968 Democratic presidential nomination, I was drawn into that as well.
What was it about Robert Kennedy that you found so attractive?
He had qualities of natural leadership that exceeded those of anybody else I have seen. He was very direct, and I thought he had extraordinarily good judgment. He made a lot of quick judgments and was pretty good on that. But the more significant or more complex an issue was, the more he studied it, sometimes with the benefit of conflicting views and large groups that he would probe with questions. Turning the issue over and over, he reduced complex issues to manageable proportions. He was more likely to get the right answer under those circumstances than anybody else I know or have heard of. I had profound respect for that ability, and after Id seen it in operation, I was even more impressed.
After you returned to the firm in 1968, you took several environmental cases in Alaska and Detroit. How did you get into that?
The National Environmental Policy Act became effective January 1, 1970, and Alyeska, a consortium of eight major oil companies, including Atlantic Richfield, British Petroleum, and Exxon, was getting ready to build the Trans Alaska Pipeline. Before we represented them, Alyeska was sued by a group of environmental organizations in the United States District Court for the District of Columbia. Quite simply the suit said the new law required an environmental impact statement for each major federal action. The pipeline was a major federal action, there was no environmental impact statement, consequently it should be enjoined. The judge agreed. At that time we did represent Atlantic Richfield, probably the single most influential member of the consortium. Nobody knew much about environmental impact statements, but I had gone to a one-week course on NEPA at the University of Colorado Law School during the summer of 1970. In the kingdom of the blind, the one-eyed man is king, so I got drawn into the case because I had taken a course.
It was the first big NEPA case and, because we were active in it, other people who had environmental issues came to us. Once you get started on these things, you just sort of get carried along. After Alyeska I represented various automobile companies in different regulatory activities having to do with emissions and fuel economy standards.
Youve also argued four cases before the Supreme Court, correct?
Yes, the first two were heard together. A. Ernest Fitzgeraldyou might say he was the father of whistleblowerswas called to testify before a Senate committee about the governments order for the C-5A large cargo transport plane. Lockheed had design and construction difficulties with the plane. There were rumors of substantial cost overruns. A senator asked Ernie Fitzgerald what he thought the cost overruns would be and Ernie testified under oath that they would be something like $2.3 billiona shocking number at that time. (It turned out to be substantially more than that.) He had been subpoenaed and sworn, and his answer was truthful, but his world blew up with that single answer.
The testimony occurred during the closing days of the Johnson administration, and when the outgoing secretary of the air force met with his replacement, he had an agenda of the eight most important issues to take up. This was pretty close to the height of the cold war, and you can imagine the momentous issues of nuclear war or peace that might have been included. Nonetheless, Ernie Fitzgerald was number two on his list!
When the Nixon administration took over, they reorganized the Department of the Air Force and ordered a reduction in force that involved only one person: Ernie Fitzgerald. He successfully sued to get his job back. However, he had no phone in his office, no secretary, and he didnt have anything to do. So Fitzgerald sued the president of the United States and two special assistants to the president: Bryce Harlow and Alexander Butterfield.
Those cases worked their way through the courts and ended up in the Supreme Court. E. Barrett Prettyman Jr. represented Fitzgerald for the ACLU. There was an agreement between Nixon and Fitzgerald that, if the case was sent back for trial at the District Court, then it would be settled for around $135,000, without trial. Prettyman didnt know about the agreement, and when it was disclosed in the Supreme Court, he felt it was inconsistent with his continuing in the case, so he withdrew. The ACLU and Fitzgerald needed counsel, and I took on the cases when they came to me.
The cases were argued in late 1981 and the Court held, 54, that there was absolute presidential immunity. In the second case, Harlow & Butterfield v. Fitzgerald, the issue was derivative absolute immunity: if the president has absolute immunity, the argument was that his special assistants should have derivative absolute immunity. That case was remanded to the District Court and it was settled under circumstances that were favorable to Fitzgerald.
What were the other two cases?
Sometimes in law you become qualified to do something by having done it. Ive had the experience a number of times that my qualification for a representation has turned on having done something similar as a court-appointed or pro bono effort, then when another case like that came along, someone thought of me. I handled two ERISA cases, three more arguments, before the Supreme Court because of the Fitzgerald cases.
For several years the big issue in ERISA was whether or not you could get punitive damages. Thats where the money is. I had represented Massachusetts Mutual for years and they wanted to petition for certiorari in an ERISA case involving punitive damages that they had lost in the Ninth Circuit. The Court granted certiorari and we argued, and reargued, the case. The final outcome was the Supreme Court reversing the Ninth Circuit and holding that punitive damages are not available under ERISA.
A couple of years later another insurance company case came out of the Fifth Circuit involving preemption. At issue was whether state common-law remedies were preempted by ERISA. In that case the Court initially referred it to the solicitor general for a recommendation. The SG reversed the recommendations of the Department of Labor and his own office to side with us. And the Supreme Court ruled 90 in our favor.
Youve done a lot of alternative dispute resolution since then. How did you get involved in that?
The Court of Appeals here has a panel of older trial lawyers to which they refer cases for mediation. Steve Ailes, a former partner at Steptoe & Johnson, was on this panel and he said to me, You know, you ought to do this because its fun. Steve was right, it is fun, and I still do it.
For some time I labored quietly mediating cases for the Court of Appeals when in 1994 various members of the Haft family fell upon each other with a degree of spirit and vigor that was substantially in excess of what the courts here were used to seeing. There were perhaps a half dozen lawsuits in Delaware, Maryland, and the District of Columbia. The D.C. Superior Court was appropriately concerned about the oncoming divorce action between Herb and Gloria Haft, the patriarch and matriarch of the family. They had been married for over 40 years and the trial would not have been pretty. There were also several other cases before the Superior Court. The court told the parties that the cases should be mediated and they would receive nominations of the parties, but a mediator would be appointed.
Id seen the Haft family around and Id read about them in the paper, but I hadnt met any of them. There were quite a few lawyers involved, however, and I knew a number of them. They recommended me to the court as mediator. Superior Court Judge Rufus King had several of the corporate suits and Judge Harriet Taylor had the divorce case, and I was appointed to mediate the Haft litigation.
The mediation was very interesting. There was a trial date hanging over the parties if the mediation was not successful. In the week running up to the trial date, we went into serious, intensive discussions about what would be done. Some of those discussions were conducted in my office, some were conducted in jury rooms at the Superior Court, and some were conducted before Judge King. Everybody respected him a great deal and he was enormously helpful.
Over the final weekend before the trial date, we went for about 48 hours straight. But at 10 oclock on Monday morning, when the trial was scheduled to begin, we went into the court with a settlement. We settled all of the litigation except for Robert Hafts suit in the Chancery Court in Delaware, which had been tried and was awaiting decision. He ultimately got an award of $35 million from Dart Drug.
The settlement was signed and agreed to, but there was a period of 30 days to fill in some blank spaces because so many pieces were involved: 43 shopping centers, holdings in Dart Drug, Crown Books, Trak Auto, Shoppers Food Warehouse, etc. During the 30-day period, while the settlement agreement was to be finalized, members of the family shifted sides and war broke out again. Ronnie Haft, who had been allied with his father in all of the initial litigation, decided that he was not adequately treated in the settlement and it was his fathers fault, so he proceeded to sue his father. They basically fought over the shopping centers for another year or two, but we werent involved in that.
Was the Haft mediation one of the more difficult mediations that youve been involved in?
Yes. It went on longer and was more active than others. There was yelling, tipping over of water pitchers, and things like that. When we were in a jury room at Superior Court, there were three occasions when a marshal knocked on the door, came in, and told us to hold down the noise because Judge King was trying to conduct a trial next door.
At times we would try to bring together parties who had not previously been in direct contact to see what would happen. Herb and Bobby Haft, father and son, had not spoken in six months, so we organized a meeting of the two. They were the principal adversaries, very intelligent, very competitive, and very combative. That meeting was more the venting of a whole lifetime of suppressed feelings than a mediation. It ended when Herb Haft got up and strode out, slamming the door with sufficient force to dislodge my nameplate.
But it was a great experience, a lot of fun.
Whats the fun part for you?
Mediation is unstructured. You try to get a sense of the situation and then look for targets of opportunity. It is necessary to study and prepare well before the mediation, but then you have to approach it with an open mind and flexible attitude. It turns on the interests of the parties rather than legal precedent, and to me that makes a lot more sense.
You would agree, then, that ADR plays an important role in the judicial system as an alternative track to using the court?
Yes, I do. The Court of Appeals for the District of Columbia Circuit settles 30 to 35 percent of the cases it refers to the panel. The court, which is short of the number of judges it should have, regards ADR highly as a very helpful adjunct to resolving the cases that come before it. I have a great deal of respect for ADR and faith in it.
I think that as a society we are overlawyered and vastly overlitigated. ADR has made great strides, but it can go a lot further with profit to everyone: society, the parties, and the judicial system.