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LGBT Litigator

The Pioneers Series: An Interview with Justice Rives Kistler of the Supreme Court of Oregon

By Nick Kacprowski – April 30, 2015


Tell me about your background before going to law school.
I grew up in a small town in North Carolina outside of Greensboro, which was the closest city. After graduating high school in 1967, I went to Williams College in Massachusetts. After college, I lived in Europe for over a year. I spent time hitchhiking for a bit. I worked for the World Health Organization in Geneva, but not in a white collar job. I worked the night shift as a paper cutter, helping to prepare printed materials for daily meetings.

 

When did you decide to go to law school?
In college and when I was traveling and living in Europe, I thought I wanted to be an English professor. After coming back from Europe, I enrolled in graduate school. I was not the most focused and ended up taking lengthy breaks from school. For a while, I moved to Washington, D.C., and worked in a bookstore. About seven years out of college, I thought I should do something more serious with my life and begin thinking about a real career. I thought about law school and began applying. At about the same time, I finished up my thesis several years behind schedule. I even worked as a gardener for about six months on large-scale public works projects like state parks and highways. That was after I had been accepted to law school but before I started.

 

Tell me about law school.
I was accepted at Georgetown Law. I really enjoyed it. I liked being back in school and studying the law. Things went well there. During the summer after my second year, I worked at the Cravath firm in New York. I liked it, but at the same time was not certain if it was the best fit for me. During my third year, I worked part time for Judge Harry Edwards of the D.C. Circuit, helping him with research on a book he was writing. The pay was barely above nothing. I was basically an extern before there was such a thing as an extern. But it was a great experience because Judge Edwards had me do things a law clerk would do, like research and write bench memos and also do the first draft on a couple of opinions.

 

You had a couple very impressive clerkships. Can you tell me about those?
First I clerked for Judge Charles Clark on the Fifth Circuit in Jackson, Mississippi. After that I clerked for Justice Lewis Powell on the United States Supreme Court.

 

How did you get the U.S. Supreme Court clerkship? Did you have any particular connections?
I really just applied. There was a standard time frame for submitting applications, and I submitted the application in my third year of law school. I didn’t have any special connections. Judge Edwards wrote a letter of recommendation for me, which I think was probably helpful. I had an interview with Justice Powell, and it seemed to me the interview went very well. I found out that I got the job when I was in Mississippi clerking for Judge Clark. I received a call at work and it was from Justice Powell himself, offering me the job.

 

What did you like about clerking for the U.S. Supreme Court?
I think it gave me confidence in myself as a lawyer, that I could do the job well. It was a tough job and we worked very hard. I probably worked seven days a week, more than 12 hours a day on average. Most clerks, no matter which justice they worked for, had similar hours. It was quite a contrast from the Fifth Circuit clerkship, which was more 9-to-5. But it was very rewarding. I loved being part of the decision-making process on such important issues.

 

What was it like to work for Justice Powell?
He was a very nice man, but he was also reserved. His interactions with the clerks were more formal. He ran his chambers like a law firm was run in those days. A lot of the discussion was in writing through bench memos and draft opinions. We would hand them in, and they would come back to us with his annotations and questions. He was also a very hard worker. He probably worked six or seven days a week and long hours, even though he was in his seventies.

 

When you were clerking, where did you see your legal career going?
I knew that coming off the clerkship I had good opportunities open to me. I thought about teaching law, and there was a lot of interest from academia for all the law clerks. But I decided I really wanted to practice. I enjoyed my summer in Cravath, but I preferred to be in a smaller market. I liked Portland, Oregon, because I thought the city was beautiful. It was also big enough to have interesting legal work and opportunities, but not overwhelming like New York. After my third year of law school, before my first clerkship, I worked for a summer at Stoel Rives in Portland. While I was clerking for Justice Powell, I called them up and asked if they were interested in having me back.

 

Can you walk me through your career at a very high level from then until now?
I worked at Stoel Rives from after my clerkship in 1983 to March 1987. I quickly came to realize that I preferred appellate work, and unfortunately there was not much of it at Stoel Rives at the time. In March 1987 I started at the Oregon DOJ’s office in the appellate division. I represented the state in the state appellate courts and Ninth Circuit on a wide variety of issues. I also got the opportunity to work on a few U.S. Supreme Court cases in which the state was a party. It was a great job. I liked the public interest component and I think I was able to get much more and better experience as a relatively junior lawyer than I would have had in private practice. I was then appointed to the Oregon Court of Appeals, and I took the bench on January 15, 1999. In 2003, I was appointed to the Supreme Court of Oregon.

 

I want to turn to some issues of interest to our LGBT readers. When were you first out at work, and was it a sudden thing or a more gradual process?
It was definitely a more gradual process. Even at Stoel Rives there were partners I worked for who knew I was gay. I don’t know how generally it was known around the office. I’ve been with my partner Tim since 1984, but I didn’t bring him to firm events. But I’m sure some people knew. It generally wasn’t very open or talked about. I was more fully out while I was at the DOJ, and it was really never an issue. It was nice to be open and not have to worry about who knew and who didn’t.

 

Did you ever experience hostility in practice for being gay?
Not really. I worried about a lot of things, mostly about doing a good job, but I didn’t really worry a lot about being gay. The most I thought about it in connection with my career was when I was considering putting my name in for an appellate appointment. I was worried that a governor might not be willing to appoint an openly gay judge, and that it might mean I would not get selected.

 

Before you were a judge, did you have any involvement in the LGBT community or other LGBT issues?
I think the most significant thing was an amicus brief that I coauthored when the Romer v. Evans case was before the U.S. Supreme Court in 1995. Oregon’s attorney general made a decision to file an amicus brief in opposition to the Colorado state law and in support of the LGBT plaintiffs. My colleague and friend Virginia (Gini) Linder, who was the solicitor general, took the laboring oar on the brief. We were really proud to get as many states joining our brief and opposing the state law as there were states that signed onto the brief that defended the law. That’s relatively rare, since the inclination is for states to come down on the side of defending other states’ laws from federal constitutional challenges.

 

Do you think your brief helped?
I do think it made a difference. When the case was argued, Tim and I, Gini and her partner, and the attorney general and his wife all went to Washington, D.C., on our own money to watch the oral argument. During the questioning, the justices appeared to be picking up on arguments that we presented in our brief, which were different from the arguments the parties’ briefs had made. It was exciting to see that our brief was resonating.

 

Let’s talk about how you became a judge. When did that first seem like a possibility?
It was always something that I’ve been interested in, but I was also realistic. I’ve always looked at it as being a great job if you can get it. You need a certain level of qualification, but after that, it takes a lot of luck and being in the right place at the right time, so in a certain sense I’ve been lucky. I first started seeing it as a possibility when I was in the DOJ, and I think I was optimistic from a fairly early point.

 

How did you first come to be appointed to the Court of Appeals?
I applied for an opening fairly early on when I was with the DOJ but did not get too far in the process. Later, I applied for another opening, passed the Bar Association’s vetting process, and interviewed with the governor’s staff, but was not appointed. I applied again later for another opening, and I passed the governor’s staff, was interviewed by the governor, and was appointed.

 

Was your sexuality an issue at all?
The first time when the governor’s staff interviewed me, I brought up that I was gay. I thought it would be good to diffuse the issue. And almost immediately, I realized that it would have been better not to bring it up at all and instead just treat it as if it were not an issue. The next time, I did not raise the issue. I had a long interview with the governor, and he didn’t bring it up, so I didn’t either. It is something he presumably knew, and I figured it wasn’t an issue I needed to explain if he didn’t want me to.

 

Was there any publicity when you were appointed to the Court of Appeals?
No, none at all. At that point my friend Gini was already on the Court of Appeals. I had to stand for election shortly after the appointment and nobody ran against me. I was totally open. My partner Tim would come with me to receptions, public events, and there were never any issues or hostility.

 

Was it a different experience with respect to publicity about your sexuality when you moved up to the Supreme Court?
Yes, then it was quite different. I was appointed in August 2003, and the way it works in Oregon is that when you are appointed to the bench you need to run in an election shortly afterward as sort of a check on the governor’s appointment power. The election I had to run in was in May 2004. That was probably the worst timing I could have had being a gay person having to stand for election to the Supreme Court. Around September 2003, Massachusetts issued its same-sex marriage opinion. Soon after that, San Francisco started issuing marriage licenses. The deadline for someone to file against me in the May 2004 election was March 13, 2004, and the week before that Multnomah County, which is the largest county in Oregon, started issuing marriage licenses without any authority from the state. In the wake of Multnomah County’s decision, there was a huge pushback politically, right at the time my election was coming up, and an opponent filed to run against me.

 

How did the campaign go?
It was a new experience for me, and a very stressful and daunting one. My sexuality became an issue. There were people opposing me and issuing campaign literature that said things like I was morally unfit to be a judge. On the other hand, there were people who were incredibly supportive in the legal community and throughout the state, and I found that support very heartening. Overall, my message was that I make my judicial decisions based on the law, and not based on my personal beliefs, which is just the best judicial philosophy.

 

Was there any opposition to your election on any other grounds?
Not that I know of. I wasn’t aware of any claims that that I had been a bad judge or did not know the law. In fact, right after my opponent filed we did a poll where we asked one group of voters who they would vote for and did not reference my sexuality at all. In that poll, I was winning by 20 percent. Then we asked the other group who they would vote for, and worked into the poll questions the fact that I was gay, and with that group I was losing by 4 percent, so we knew we had a challenge. Six weeks later, in the May election, I ended up winning by about 20 percent.

 

And is it true that you are the first openly gay state supreme court judge in the country?
I think that is true. In fact, I’m not 100 percent positive about this, but I think I was the first openly gay person to win a contested statewide election anywhere for any office.

 

You were recently reelected in 2011. Was your sexuality any issue at all then?
It was not. I was not opposed in the election, and by that time it was pretty much yesterday’s news. In fact, in the intervening years, my colleague Gini Linder, who is a lesbian and was the solicitor general when I was with the DOJ, had run for an open seat on the Supreme Court and it really wasn’t an issue in her election. So my first election in 2004 was really the only time it has been an issue, and even then it could have been the fact that my election followed so closely on the first same-sex marriage developments in Oregon, Massachusetts, and San Francisco.

 

Keywords: litigation, LGBT, judge, Supreme Court of Oregon, interview

 

Nick Kacprowski is of counsel with Alston Hunt Floyd & Ing in Honolulu, Hawaii.


 
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