Kistler: 'Leave personal life at home and do your job'
When Rives Kistler was elevated to the Oregon Supreme Court in 2003, the announcement by Gov. Ted Kulongoski drew only routine notice — for a single day.
Then news accounts reported Kistler's sexual orientation and focused on him as the first gay man in the nation to sit on any state high court.
When Kistler was up for a full six-year term in 2004, his opponent made his sexual orientation a campaign issue without saying so explicitly. In that same year, Multnomah County issued marriage licenses to 3,000 same-sex couples — and Oregon voters chose to define marriage as the union of one man and one woman.
Two unopposed re-elections later — and a total of 136 opinions on behalf of the high court, none involving sexual orientation — Kistler retired Dec. 31 after 15 years as a justice and 32 years in state government.
Kistler, 69, said in an exit interview he always sought to be judged on what he has done, not who he was.
"What I tried to say in my (2004) campaign, and what I believe, is that you leave your personal life at home and you do your job," he said. "Your experiences may inform and enrich the way you see issues — but you are going to follow the law and the Constitution."
Kulongoski worked with Kistler while he was attorney general and Kistler was an appellate lawyer at the Oregon Department of Justice. Kulongoski also sat on the Supreme Court before he was elected governor in 2002 — and Kistler was his first appointment to the court.
"His sexual orientation really did not enter into it," Kulongoski said in an interview. "I know other people think that was why I did it, but I wanted to get the most qualified person I could appoint to that position. Rives filled that bill."
Kulongoski acknowledged he was aware he was making history.
"But I would never appoint anyone I did not think was qualified," he said. "In Oregon, you alone as the chief executive make the choice, because there is no Senate confirmation of judicial appointments."
Unlike most would-be lawyers, Kistler did not go to law school directly upon graduating from Williams College in 1971. He hitchhiked around Europe for a year, went to graduate school at the University of North Carolina — where he eventually earned a master's degree — and worked in a bookstore in Washington, D.C.
"I ultimately realized I needed to do something more to have a serious career," he said. "Law seemed a rational thing to do."
He enrolled at Georgetown University in 1978.
"It was a pleasure to be back in a place where people were talking about ideas and principles," he said.
As a third-year law student in 1980, he worked as an "extern" on a book with Harry Edwards, then a new judge on the U.S. Court of Appeals for the District of Columbia. It is known as the "little Supreme Court" because it generates many of the cases that end up at the U.S. Supreme Court — and many of its judges move on to the high court (four at last count).
Kistler was a law clerk in 1981-82 for Judge Charles Clark of the U.S. 5th Circuit Court of Appeals, which then covered six Southern states.
He also was a law clerk in 1982-83 for Justice Lewis Powell, who served on the U.S. Supreme Court for 15 years. (See separate story.)
After his clerkship with Powell, Kistler moved to Portland in 1983. Two summers earlier, he had worked at the Portland firm of Stoel Rives, Oregon's largest.
"I loved Portland and Oregon," he said. "I thought I had never seen a more beautiful place in my life."
He was a litigation associate at the firm for four years. He became interested in handling appeals, but Stoel Rives already had specialists of the caliber of Charles Hinkle, who has since retired.
So Kistler joined the Oregon Department of Justice, which counts almost 300 lawyers on its staff, the largest of any public agency in the state.
"It was a chance not only to work in appeals, but also to do something to advance the public interest. Many people might not think of DOJ as a public interest firm, but it carries out the public's decisions as reflected by the Legislature," he said.
"It gave me a chance to do cases that I may never have touched if I had stayed at a private firm."
He arrived in 1987, several years after then-Attorney General Dave Frohnmayer began transforming the agency to what it is today.
"He was smart, he stayed on top of the issues, and he was an excellent manager," Kistler recalled. "It was an interesting place to be and I felt fortunate to be there."
When Frohnmayer returned to the University of Oregon, Kistler remained at the agency when Kulongoski was elected attorney general in 1992.
"He thinks much faster than the average person, so I had to have him slow down," Kulongoski said with a laugh. "But he is also an unassuming person. He does not give you the impression that he is smarter than you are."
Kistler was appointed by Gov. John Kitzhaber in 1999 to the Court of Appeals, then and now one of the nation's busiest intermediate-level state courts. Unlike the Supreme Court, the court accepts virtually all appeals, which run into the thousands.
"What gave me better preparation (for the judgeship) was having clerked for other judges," Kistler said. "When I got to the Court of Appeals, I was used to how cases flow through an appellate court.
"It was like running in front of an avalanche: If you ever tripped, you got buried. As long as you could stay a few feet ahead, it was OK."
Like most Court of Appeals judges, Kistler aspired to the Supreme Court. But he said he was surprised when Kulongoski appointed him in 2003 to succeed Susan Leeson, then the court's only woman, who had resigned.
"I was happy to be appointed," he said. "But I know there was a loss not to have gender diversity."
Two women did join the court in 2006 when Kulongoski was governor. They were Virginia Linder, then a Court of Appeals judge, by direct election to an open seat, and Martha Walters, a Eugene lawyer, by appointment. (Walters is the current chief justice.)
Kistler recalled an interview with a reporter from Newsweek magazine in 2004.
"She kept asking me what it was like to be the first gay judge. I think she wanted to find a way to encapsulate me," he said. "I said we think of Sandra Day O'Connor not as a female judge or William Rehnquist not as a male judge, but whether they are good judges or not.
"But I think it was unavoidable, given how events played out right before the filing deadline for the election."
Six days before the deadline, Multnomah County began issuing the first of 3,000 marriage licenses to same-sex couples. That action eventually triggered a legal challenge and gave momentum to a ballot initiative to define marriage.
Four days before the deadline, Kistler drew an opponent, rare for a judicial race. Lake Oswego lawyer James Leuenberger never mentioned Kistler's sexual orientation — but injected the issue into the campaign by specifying the raising of a family as an important qualification for a judge.
Kistler won — only three of 107 Supreme Court justices have been denied new terms — though Leuenberger drew nearly 40 percent of the vote.
After the primary election, Leuenberger received a reprimand from the high court based on an Oregon State Bar complaint about another matter. Kistler did not take part.
Two years later, when Linder was elected to an open seat on the Supreme Court, her sexual orientation was not an issue.
"Things that are new can surprise people," Kistler said. "But everything quieted down quickly."
Since 2004 neither Kistler, Linder — who retired at the end of 2016 — nor Lynn Nakamoto, who succeeded Linder, faced an election opponent.
As for the legal challenge to Multnomah County's licenses, the Oregon Supreme Court heard it after the 2004 general election — when voters in Oregon and 10 other states barred same-sex marriage in their constitutions — and the court eventually invalidated the licenses in a unanimous decision.
Oregon's ban was overturned by a federal judge in 2014, a year before the U.S. Supreme Court acted.
No other prominent cases involving sexual orientation arose during Kistler's tenure, during which he was the author of 136 opinions.
It was Judge Chris Garrett of the Oregon Court of Appeals — who succeeded Kistler on the high court Jan. 1 — who wrote a 2017 decision upholding a state finding that a couple from Gresham violated an anti-discrimination law when they refused to bake a cake for a same-sex couple. The Oregon Supreme Court declined to hear an appeal.
Kistler said diversity is valuable in itself, although he feels judges should not represent specific groups.
"Diversity helps you to see things you might otherwise not have noticed," he said "It does not change the law or the standards, but I think it makes us a better court when we can share those experiences."
Kistler said serving on the high court has been an honor.
"All of us are heirs to a good tradition," he said.
Kistler will have requirements of unpaid service as a judge for 35 days annually for five years to qualify for a higher pension. He also said he would consider teaching at one of Oregon's three law schools, as some of his retired colleagues do.
"What I want to do is take a few months off, figure out what it is I want to be involved in, and see if there is interest from others," he said.
Kistler on Powell: 'Trying to find the right answer'
As one of his young law clerks in the 1982-83 term of the U.S. Supreme Court, Rives Kistler helped Justice Lewis Powell do legal research and write drafts of opinions.
What Powell did not know was the sexual orientation of Kistler — and three other clerks during Powell's 15 years on the court — as Powell considered his swing vote in a 1986 case that upheld Georgia's law criminalizing gay sex between consenting adults in private.
Powell told others at the time he was unsure he had ever met a gay man before he cast the fifth vote in Bowers v. Hardwick, which gays regard as their equivalent of the 1857 Dred Scott decision holding that African Americans were not citizens.
Four years later, after he retired from the court, Powell questioned his own vote — one of the few times a justice has done so publicly — and in 2003, five years after Powell died at age 90, a 5-4 majority led by Justice Anthony Kennedy overturned the decision in a Texas case.
Kistler moved to Oregon after his clerkship in 1983, so he had no involvement with Powell's deliberations. But another law clerk who is also an Oregon judge today did — Michael Mosman, who wrote a memo for Powell in the case before he came to Oregon in 1986. (After a stint as U.S. attorney for Oregon, Mosman today is the chief judge of U.S. District Court.)
Such memos usually reflect the views of the justice, not the writer.
Kistler said he knew Powell hesitated to push too far on social issues, although Powell was part of the majority in the court's 1973 decision legalizing abortion.
"I was not surprised by Mike's recommendation. It seems to me consistent with where I expected the justice to come down," Kistler recalled.
"But I know that what he (Powell) said after it was all over was that it was one of the harder cases — and he was unsure whether he came down on the right side. That is consistent with the person I worked with.
"He was trying to find the right answer and he cared about people. How law affects people shaped his understanding of what the law ought to be — not that we ever talked about that (case)."
Powell was a successful business lawyer in Richmond, Va., and a former national president of the American Bar Association when President Richard Nixon nominated him to the high court in 1971. Although regarded as a judicial conservative — he had urged businesses to organize to resist regulation in a famous 1971 memo to the U.S. Chamber of Commerce — Powell emerged as a swing vote on the court, much like his successor Anthony Kennedy did for 30 years.
Kistler said Powell's former clerks gathered for a reunion last year, the first since Powell retired in 1987.
"He was thoughtful, he was moderate, he cared about each particular case," Kistler recalled. "I suspect every justice has views about the role the court plays in relation to the other branches of government. But it would be hard to categorize him with having a particular persuasion or agenda.
"I felt lucky to be there."
— Peter Wong
NOTE: Corrects error in main story in Justice Nakamoto's first name.