Washington Lawyer

Legends in the Law: Stephen J. Pollak

(Appeared in Bar Report, December/January 2000)

A graduate of Dartmouth College (1950) and the Yale Law School (1956), Stephen J. Pollak began his legal career as an associate at Covington & Burling after having served in the U.S. Navy during the Korean War. In the Kennedy and Johnson administrations Pollak served in a variety of government positions, including Assistant to the Solicitor General, Advisor to the President for National Capital Affairs, and Assistant Attorney General in charge of the Civil Rights Division at the U.S. Department of Justice. Pollak is currently a partner at Shea & Gardner, where he has been in private practice since 1969. He served as president of the D.C. Bar for the 1980-81 term, and he has chaired numerous D.C. Bar committees, including the Public Service Activities Review Committee, which received the Frederick B. Abramson President’s Award in 1992 and led to a substantial overhaul of the Bar’s public service programs. Pollak is also a recipient of the Servant of Justice Award presented by the Legal Aid Society of the District of Columbia, and the Whitney North Seymour Award, presented by the Lawyers’ Committee for Civil Rights Under Law, where he has served on the board of directors for the past 30 years.

Bar Report: Can you tell us where you grew up?
Stephen J. Pollak: Sure. I grew up in Highland Park, a suburban community on Lake Michigan about 22 miles north of Chicago. My father worked with an all-services real estate company that my mother’s father founded in 1893, and I went to the local public schools. Both of my parents were civic-minded. My mother was chair of the Illinois State League of Women Voters, and my father served on the local school board. There was no television when I was growing up, but I do remember listening to Franklin Roosevelt’s speeches on the radio—his famous "fireside chats." Highland Park was pretty conservative, but my family held President Roosevelt in high esteem. In 1936 when Roosevelt ran for reelection against Alf Landon, there was a straw poll of the students at my Ravinia grammar school. Roosevelt got four votes. I was one of the four. The others were for the Republican.

BR: Can you remember how you learned of the attack on Pearl Harbor?
SJP: Of course, by reports on the radio that Sunday afternoon. I remember the feelings of great concern. I was thirteen years old then. World War II was all-consuming—as were the Blitzkriegs and submarine warfare of the Nazis for several years prior to Pearl Harbor. On the home front there was rationing of food and gasoline, and there were shortages. Boys who were a year or two older than I was in high school went straight into the service on graduation and some left earlier to enlist. I registered for the draft during my senior year and fully expected that I would go into the military as soon as I graduated.

BR: Prior to the dropping of the atomic bombs on Hiroshima and Nagasaki, the United States was gearing up for an invasion of the Japanese home islands. Had the invasion taken place, you were at an age where you probably would have been called to go. Were you at all disappointed that you didn’t get in on the action?
SJP: In the summer of 1945, I was serving as a counselor at a camp in Canada, and that was where I was when I learned that Japan had surrendered. I remember feeling a sense of great joy that the war was finally over. I suppose on one level I had a romantic notion of what military service would be like, but the loss of life in the land war in Europe—the Battle of the Bulge, Stalingrad—and on land and sea in the Pacific was enormous. To this day I have vivid memories of the graphic depictions of the fighting on D-Day at Normandy and in the Pacific at places like Iwo Jima. Because of the huge toll in human life that the war was taking, I wanted the earliest, speediest end. I shared the euphoria at the outcome with everyone else.

BR: So instead of going into the military you went to college?
SJP: Yes, I went to Dartmouth.

BR: Why Dartmouth?
SJP: When I was young my parents taught me to ski on the local golf course. The hills were no taller than my father, but it was on those hills that I developed a love of skiing. It now seems unbelievable to me, but when I was 12 years old I wrote a letter to Dartmouth saying that I wanted to go there to college. This was based entirely on my interest in skiing. As things turned out, I applied to a number of schools, but in the end I chose Dartmouth and skied almost not at all because by then I had become a competitive swimmer.

BR: Did you go with the idea that you wanted to be a lawyer?
SJP: No, I had no idea what I wanted to do. My major areas of study were economics, history, and government, and I did well in my courses. I was interested in public affairs and active in the National Students Association. NSA’s agenda included ending race and religious discrimination by fraternities, and I remember launching a campaign on this issue at Dartmouth.

BR: What did you do after you graduated?
SJP: The Navy paid my way at Dartmouth in return for a commitment to serve each summer and after graduation, so I took my ensign’s commission and went on active duty. I graduated in 1950, and that summer the Korean war broke out. I was assigned to the USS Borie, a destroyer operating out of Norfolk, Virginia. We were part of the first Atlantic division ordered to the Far East to serve in Korea. We left Norfolk in September, stopped a day or two at Yokosuka near Tokyo, Japan, and arrived at the eastern end of the Korean battle line in October.

BR: Were you involved in the Inchon landings?
SJP: No. The Borie was scheduled to take part in an amphibious landing at Wonsan on the east coast, but the North Koreans had mined the harbor extensively and the invasion was called off. Generally, my ship was stationed 2000 yards off the coast at the end of the battle line and provided fire support on call from troops and planes. Even though we were always only a short distance from land, we were fired upon just once and we never sighted an enemy plane. Navy service during the Korean war was safer by far than service on land. Mostly I remember it as a cold, solitary, lonely existence. We stayed on the battle line until the end of July 1951, when we were ordered back home.

BR: What do you recall about the return?
SJP: Mostly several long telephone conversations from San Diego with Ruth Scheinfeld who I’d asked to marry me before I left. She said "no" but we wrote to each other every day while I was gone. When the Borie docked in Norfolk, she was there and we were married ten days later at her parents’ home in Illinois. Forty-nine years of marriage later, I’d say I was lucky she waited for me.

BR: When did you decide to embark upon a career in the law?
SJP: I always knew that I wanted to serve in government. I thought I would go to graduate school in public administration after I finished my tour of duty in the Navy. About six months after I returned from Korea, Ruth and I came to Washington to visit our friends Otto and Charlotte Riescher. Otto, an economist, was serving in the Department of Labor, and he was able to observe first-hand the damage that Senator Joseph McCarthy was doing in his crusade to rid the government of "subversives" and "communists." A lot of innocent people were being wounded and their careers torn apart by "McCarthy" investigations in those years. Otto said, "I think you would make a big mistake to take your training in public administration. If someone targets you and you can’t stay in government, your alternatives would be very limited. You ought to think about going to law school. You can still serve in the government, but if you get drummed out, you will have a profession and you’ll still be able to earn a livelihood." That seemed like good advice. So I applied to the Yale Law School, and after being mustered out of the Navy in 1953, I enrolled at Yale.

BR: Did you enjoy law school?
SJP: Yes, it was the best educational experience of my life. I put in long, long hours, worked very hard. Ruth and I lived in a garden apartment near the campus and we had wonderful friends all centered about the law school. Ours was a great class. Ruth was in labor with Linda, our first daughter, during my first-semester exams—my "business units" professor said I wrote a great answer to part one of his exam, but not to the question he posed. Our son David arrived during my third year. So it was a very busy, very exciting time in our lives.

I made the Law Journal and published a comment on a newly enacted statute: the Expatriation Act of 1954 which stripped violators of the Smith Act of their nationality. The Smith Act was a criminal statute aimed at persons who were members of the communist party and advocated overthrow of the government by force and violence. I analyzed the constitutionality of the Expatriation Act based upon the "Cruel and Unusual Punishment" clause of the Eighth Amendment. The Expatriation Act added a condition of statelessness to the court-imposed punishment of persons convicted of Smith Act crimes, and, I argued, this "should be deemed in modern context to constitute a cruel and unusual punishment." Shortly after I graduated from law school, the Supreme Court in Trop v. Dulles struck down on Eighth Amendment grounds a companion provision taking nationality away from persons court-martialed for desertion. The Supreme Court cited my comment and quoted Chief Judge Clark’s opinion below which called it a "masterful analysis." Heady stuff!

BR: Did you go straight into private practice after law school?
SJP: Yes. I interviewed with three law firms here in Washington, D.C., and was offered a position with Covington & Burling, which I accepted.

BR: What sort of law did you practice?
SJP: Like all young lawyers, I took the assignments that were given to me. So I did a variety of things. My mentor at the firm was Gerhard A. Gesell, who President Johnson named to the U.S. District Court here in 1967. Gesell was a great trial and appellate advocate and later a great judge. He reached out to me, and I worked with him in the areas of antitrust and libel law. My first case with Gesell was in defense of Parke, Davis, one of five manufacturers of the polio vaccine. Parke, Davis and the others were charged with criminal price fixing. Prices were identical down to the fourth decimal place. We went through a six-week trial in the U.S. District Court in Trenton, New Jersey, that involved a great cast of lawyers, including Thomas Dewey, the former presidential candidate and governor of New York, who represented Eli Lilly, one of the codefendants. Dewey had come very close to winning the presidency in 1948. You may recall the notoriously premature Chicago Tribune headline that read "DEWEY DEFEATS TRUMAN."

BR: Did Dewey actually try the case?
SJP: Yes, he was there in court every day for six weeks.

BR: Was he a skilled trial lawyer?
SJP: I’ll leave that judgment to the historians. Suffice to say that his client, our client and the other three defendants were acquitted. For me personally, it was a once-in-a-lifetime experience.

BR: In what way was Gesell your mentor?
SJP: I watched him practice law and learned what the law schools don’t teach. He set the highest standards for each representation, was dogged in finding the facts, competitive to the core, cut all the corners square, and made the practice fun. He was a model for me.

BR: Were you involved in the Kennedy campaign in 1960?
SJP: Not significantly. Burke Marshall was a colleague of mine at Covington and he was involved in the campaign. I helped him some, but nothing extensive. After Kennedy was elected, Burke was named Assistant Attorney General in charge of the Civil Rights Division, and I told him that I wanted to go with him to the Justice Department. Civil rights was something I felt deeply about. But Burke said he was keeping everyone in the division who was already there, so I didn’t have the opportunity to join him.

As things turned out, I went into the government through a different door. Kennedy had named labor law professor Archibald Cox solicitor general, and I got a call from the Solicitor General’s Office asking if I was interested in working there. Well, I was very interested. Some of my friends at Covington told me I was making a big mistake, that I should stay at the firm and become a partner. But I’d always wanted to go into the government, and once I got my FBI clearances, I went to work in the Solicitor General’s Office.

BR: Did you find working for Cox to be a rewarding experience?
SJP: You bet. He was a prodigious worker and superb brief writer and oral advocate. He was a second mentor for me. There were only nine of us in the office when I joined, so I received a good share of Supreme Court cases to argue. I remember my first Supreme Court case was a tax case. I lost nine-to-nothing. Fortunately there were other cases with more satisfying outcomes.

Mr. Cox, as we all called him, gave me two pieces of advice which I’ve always tried to follow since. First, he said, "Open your argument with a statement of the nub of the issue before the Court." Second, he said, "Prepare your argument well and present what you’ve prepared. Don’t change your argument just because of what your opponent has said."

BR: Were you nervous when you stood before the nine Justices in the Supreme Court chamber?
SJP: It was always scary while I was waiting to argue. I used to be afraid I’d fall off my chair. But once I got started, it was like debating with nine interested and well-informed colleagues. Of course, I’d prepare endlessly, so that by the time I was presenting the case I knew the subject matter so well that I was able to answer the Justices’ questions in ways that were supportive of the outcome I was seeking and consistent with the law. Arguing in the Supreme Court was wonderfully exciting, challenging, demanding, and rewarding—a real high. I wouldn’t have given any of those cases away for anything.

BR: President Kennedy received a lot of criticism for his reluctance to aggressively pursue civil rights legislation in 1961 and 1962. Did that bother you?
SJP: I may have felt that President Kennedy could have made civil rights legislation a higher priority early in his administration. But I was working then in the Solicitor General’s Office, and from what I could see the Justice Department was very committed to civil rights law enforcement. I remember one night in particular, when Justice Department lawyers, marshalls and border patrolmen were under siege at the University of Mississippi during James Meredith’s effort to enroll as the first black student there. Violence and rioting broke out on the university campus. I was called in to lend a hand in the Attorney General’s office. I spent the night there. Robert Kennedy was in and out, communicating with the President, with Governor Ross Barnett in Mississippi, with his Justice Department lawyers. In the midst of this very tense situation, I observed Robert Kennedy to be committed, creative and concerned. He wasn’t about to back down. He was determined to enforce the court order upholding Meredith’s right to enroll in the University of Mississippi and to prevent race-based obstructers from interfering with his entry.

Of course, I was primarily focused on what was taking place inside the Solicitor General’s Office, and from that vantage point I could see that the Justice Department was placing a strong emphasis on advancing the law with respect to civil rights. The Civil Rights Division was losing cases in U.S. District Courts in Alabama, Mississippi and Louisiana and other parts of the old Fifth Circuit. Inside the Solicitor General’s Office there was a presumption in favor of appealing those decisions. So, from what I could see, there was a strong federal commitment to civil rights.

BR: Can you remember what you were doing when you learned that President Kennedy had been assassinated?
SJP: Yes, I was in my office talking with a colleague, Bruce Terris, when someone came by and told us that the President had been shot. My office was on Ninth Street and overlooked the National Archives building. I remember standing at the window, absolutely stunned, and wondering about the fate of the nation whose fundamental historic papers were just across the street. It was such a sad, horrible moment. That assassination changed the lives of many, many people. The impact was so deeply felt inside the Justice Department.

BR: Given your concern for civil rights, were you at all worried when Lyndon Johnson, a southerner with a mixed voting record on civil rights, moved into the White House?
SJP: No. I never harbored that view of Johnson. After he became President he moved quickly on pressing domestic issues of the day. He was a tower of strength on poverty and civil rights matters.

BR: Did the change in administrations have an impact on you?
SJP: President Johnson pursued an aggressive legislative agenda, and I was pulled into that effort. In 1964, I acted as legal counsel to the President’s Task Force on the War Against Poverty, which was headed by Sargent Shriver, and drafted the legislation establishing VISTA, essentially a domestic peace corps, which was an issue I’d been working on in the Kennedy administration. With the passage of the Economic Opportunity Act and enactment of its budget, I became Deputy General Counsel in the new Office of Economic Opportunity and set up the general counsel’s office over the next six exciting months.

BR: At what point did you join the Civil Rights Division at Justice?
SJP: March 1965. Burke Marshall retired and his deputy John Doar replaced him as Assistant Attorney General. John took me on as First Assistant. On my first day back at the Justice Department, I got a call from Jack Rosenthal, who was head of the public affairs office, and he said, "You’d better pack a suitcase because we’re flying down to Selma at six-thirty tonight." Well, I got my suitcase and that night I flew to Selma on an Air Force jet.

This was right after the infamous incident at the Edmund Pettis Bridge, where the civil rights marchers had been stopped by the State and local police, beaten with clubs and set upon by dogs and forcibly prevented from marching and protesting the denial of their rights to vote. The Justice Department’s position was that Dr. Martin Luther King and the marchers had a constitutional right to express their views. John Doar defended their rights before District Judge Frank M. Johnson who had just ruled in their favor in Williams v. Wallace. On the night of my arrival, I attended a meeting with Doar and some of Martin Luther King’s top lieutenants from about 2 to 5 a.m. in the U.S. Attorneys’ Office in Montgomery. Doar left the meeting to fly to New Orleans to argue Governor Wallace’s appeal of Judge Johnson’s order before the Fifth Circuit. I was there in Selma, Montgomery and along Route 80 for 10 days coordinating activities of federal personnel on the line of march and working to see that the federal court’s order was enforced.

BR: Did you have the sense that this was an historic event?
SJP: Yes, it was very dramatic. The march proceeded over five days, and Martin Luther King led the demonstrators from Selma to Montgomery. The big concern was that there would be disruptions and violence. The Alabama National Guard had been federalized, and there was a significant National Guard presence along the march route and especially in Montgomery and at the State Capitol at the march’s culmination. Public order was maintained. I’ll never forget the huge throng in front of the State Capitol to greet the marchers. It was "electric" and had the feel of an important, history-making day. Miraculously, there was no violence until the slaying of rights worker Viola Liuzzo the evening of the day the march concluded.

BR: Were you involved in the subsequent effort to secure passage of the Voting Rights Act of 1965?
SJP: Yes. The march was the catalyst for the Voting Rights Act. When I got back from Selma, the Attorney General asked me to represent the Justice Department in supporting and negotiating the voting rights legislation. I worked with Charlie Ferris, counsel to Majority Leader Mike Mansfield, and Cornelius Kennedy, counsel to Minority Leader Everett Dirksen, in drafting the Mansfield/Dirksen compromise which became the law. The text of the bill grew out of the Civil Rights Division’s experience in litigating voting rights cases during the first half of the 1960s. The division’s lawyers knew where the inadequacies were in the laws that were on the books and where statutory strengthening was necessary. I think the Voting Rights Act has proven to be one of the most important pieces of legislation of the 20th century.

BR: Are you proud of the role you played?
SJP: Yes, I count my role in its enactment as the pinnacle of my government service. I’m also proud that the nation adopted the statute. The Congress performed very well, and President Johnson performed very well.

BR: What prompted your decision to leave the civil rights division?
SJP: Well, I didn’t want to leave. The President’s chief aide for D.C. affairs, Charles Horsky, resigned, and President Johnson asked me to replace him as Advisor to the President for National Capital Affairs. I spoke with Attorney General Ramsey Clark and with Barefoot Saunders, who was in charge of legislative affairs at the White House. I told them that I wanted to stay put, and both said to me, "Look, when the President asks you to do something, you don’t say no. You do it." So I did and worked at the White House for most of 1967. It was an extremely difficult time for President Johnson because his attention was heavily focused on Vietnam, but he had an enormous capacity, was an enormously hard worker, and brought his full skills and attention to District of Columbia affairs which were my responsibility.

My main assignment was to head the effort to secure passage of Reorganization Plan No. 3 for the government of the District that paved the way for home rule. The plan replaced the then weak three-commissioner government with an appointed mayor and city council. President Johnson was very demanding. He wanted me to see every member of the House and the Senate. I remember him telling me, "I don’t want to send this up there unless it’s going to pass! I want to know!" And—bang!—he slapped his palm on the desk. Johnson’s view was that once the City had an appointed mayor and city council, it would be easier to obtain home rule legislation that provided for an elected mayor and an elected council. And the President was right. His strategy worked. The administration’s reorganization plan was adopted by Congress in August 1967. Shortly thereafter President Johnson appointed Walter Washington as the first Mayor of the District of Columbia. Johnson was very involved in making that appointment. He wanted a black mayor to lead the city. He felt that was very important. Walter Washington proved to be an excellent mayor, and home rule legislation of the sort that President Johnson envisioned as a long-term objective was enacted soon after Johnson left office.

BR: So, what brought you back to Justice?
SJP: Truth is stranger than fiction. As Ruth and I were going through the receiving line to congratulate the President on the swearing in of Mayor Washington and the Chair, John Hechinger, and members of the new City Council, the President took me by the shoulder, pulled me toward him and said, "Steve, I’m going to name you to head the Civil Rights Division." What a moment! There were three new nominees for posts at Justice, including Erwin Griswold as Solicitor General, and the President flew us to the Ranch where he announced the appointments.

BR: What were the high points of your term as Assistant Attorney General in charge of the Civil Rights Division, 1968-69?
SJP: Presentation and passage of the Civil Rights Act of 1968, proscribing discrimination in housing, and setting broader penalties for criminal interference with civil rights; dealing with the riots after the assassination of Dr. King and with the Poor People’s March on Washington; implementing the Supreme Court’s decision striking down freedom-of-choice school desegregation plans which required motions in 500 pending school cases; and developing the program for enforcement of Title VIII’s prohibition of discrimination in employment.

BR: Was it difficult to go back into private practice after serving in the government during such extraordinary and tumultuous times?
SJP: I submitted my resignation and left the government at noon on January 20, 1969, when President Nixon took over. My last act was to identify my successor, Jerris Leonard to the guards who were denying him entry to the building. There was a period of decompression. Ruth and I took a holiday. On my return I joined Shea & Gardner which was fitting. Frank Shea and Warner Gardner began the firm in 1947 after serving as presidential appointees in the federal government before and during World War II. I’ve found private practice to be interesting, fulfilling and rewarding and not so different from my government experience. My very first client was the National Education Association, which retained me to defend the rights of students to equal educational opportunity and to secure the constitutional rights of teachers and protect them from discrimination on account of race.

BR: During your time in private practice you’ve made a strong commitment to doing pro bono work. Why is that?
SJP: I think the practice of law should be made up of both paying and non-paying clients. Fortunately, I’ve had good clients of both stripes. Taking pro bono case—two leading to arguments in the Supreme Court—being involved in public service, working on committees and boards, serving as D.C. Bar president—these activities are part of the practice of law for me. Among the most interesting work I’ve done was to lead a review of the D.C. Bar’s public service program in the early 1990s. The outcome was a new and stronger program aimed at using every dollar to multiply volunteer pro bono services by lawyers in the District of Columbia. But there’s always more to do. One of the frustrations you encounter in the practice of law is that you have a lot of demands being made on you, and sometimes they are difficult to satisfy. But I’ve always felt that a full plate is best. So I intend to keep on going.