Ted Olson Interview 6

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ORAL HISTORY OF THEODORE B. OLSON, ESQ.
Sixth Interview
September 29, 2017
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Elizabeth Earle Beske, and the
interviewee is Ted Olson. The interview took place at Gibson, Dunn & Crutcher on Friday,
September 29, 2017. This is the sixth interview in a series.
MS. BESKE: It is September 29, 2017, and I am here, Elizabeth Beske, with Ted Olson for
our sixth interview for the DC Circuit Historical Society Oral History project.
And so we ended last time with your October 2006 marriage to Lady. And I
just want to talk briefly about a couple of cases that you had in that post-2006
pre-2009/2010 era. One of which was your representation of a CNN
journalist sued by Wen Ho Lee, the Taiwanese-American scientist at Los
Alamos who had been charged with espionage. He sued, and you were
representing the journalist who was asserting reporter’s privilege. And it
sounded like you all settled after the point at which the cert petition was
filed.
MR. OLSON: I don’t recall the precise details or exact timing. One of my partners, Ted
Boutrous, did a great deal of the work. Sometimes on some of these cases
that we’re handling in the law firm I will be on the pleadings but not have as
much responsibility. I remember it now that you mention it. I would have
forgotten completely. And I can’t remember precisely how it got resolved.
MS. BESKE: I believe that the parties settled. So the key question was the existence or not
of a reporter’s privilege. And you wrote a couple of op-ed pieces in The
Washington Post separated by a year and a half or so, regarding the Free
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Flow of Information Act, which was pending legislation, actually that’s still
pending, that offered some modicum of protection to reporters against
revealing confidential sources.
MR. OLSON: Yes, I do remember that. And, I think I may have even testified in Congress
about that. I remember some meetings and some writings about it.
MS. BESKE: It’s still pending.
MR. OLSON: Yeah, well there’s various problems with it, one of which is some of the
reporters don’t want that. They figure that if they have a statute it will
confine their broader claims under the Constitution. And if there’s
definitions in there they may not be in some future case so comfortable with
those definitions. It’s also become increasingly difficult for legislatures to
define what in the world a journalist is. Who is a journalist? With blogs
and –
MS. BESKE: Twitter.
MR. OLSON: And things like that. Yeah, and stories are coming out about politicians or
political figures running for office as a result of some blogger’s interest. Or
someone at a campaign fundraiser who secretly recorded what happened,
remember that, the Romney’s 49% or whatever that was. It was a dinner, but
then it got handed to somebody who then put it out on blog. And, I think,
that there was some concern about who we define and if we define people
who are journalists then are we licensing journalists, which journalists don’t
like. Don’t tell me that I’m only a journalist if the government says I am. So
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there’s lots of problems with that legislation. I don’t know whether anything
has happened with it recently.
MS. BESKE: I think that the problems you identify about who is a journalist have only
gotten way worse in the intervening eight years. So I can imagine. Okay, so
that brings us, I guess I’d like to go chronologically. That brings us really to,
I believe, the gay marriage cases.
MR. OLSON: I want to say one more thing about the…
MS. BESKE: Yes, of course.
MR. OLSON: The reporters privilege and so forth. I think we also represented, maybe it
was earlier than this, Time Inc. in connection with that dispute about that
reporter, Judith Miller. So we were representing Time in connection with
that.
MS. BESKE: I didn’t realize you were on that. So that was the D.C. Circuit.
MR. OLSON: It went to the D.C. Circuit. And, I think we even had a cert petition. I think
we filed a brief, well we did file a brief. And that goes into the constitutional
issues about this reporter’s privilege stuff. And then Time had to decide
whether it was going to give up the notes of its reporter, Matthew Cooper.
Judith Miller was a New York Times reporter. Matthew Cooper was a Time
Magazine reporter whose notes were involved, too. And when the claim of
privilege was rejected in the courts, and then the Supreme Court denied cert,
Time had to decide whether it would go ahead and yield and give up its, I
think it was notes, or some papers that were in its possession. And it decided
that it had to do that because it had done everything it could in court, and the
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First Amendment, however important it is, doesn’t supersede or trump the
rule of law. The First Amendment’s in the Constitution, the Supreme Court
had said that they don’t have a right under these circumstances, and so they
relinquished the documents. It was complicated by the fact that Time is a
public corporation that has responsibilities to stockholders as well. And they
would be faced with some large daily fine if they didn’t produce the
documents. And the editor-in-chief, Norman Pearlstine, wrote a book about
his decision, Off the Record: The Press, the Government, and the War Over
Anonymous Sources. He got a lot of criticism from certain hardliners, maybe
even the Times.
MS. BESKE: Interesting.
MR. OLSON: The New York Times.
MS. BESKE: For having capitulated.
MR. OLSON: For having capitulated. And he defended that in his book. He talks about our
relationship and the advice that I gave them. So I mention this to you
because it was, I can’t remember chronologically when all that took place,
but it ties in with your questions about Wen Ho Lee.
MS. BESKE: And did you have a role in the Valerie Plame matter?
MR. OLSON: Ultimately, we could not. Scooter Libby came here, and we were – I was all
prepared to work with him and help him. But the Time reporter, claimed you
can’t do that because you had represented me. He asserted a conflict of
interest, and so we couldn’t help Scooter any further after that.
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MS. BESKE: Okay, so that brings us then to the gay marriage cases, and I’d like to spend a
little bit of time on that. So by way of deep background, in 2000, California
passes a ballot-access measure Proposition 22 as an ordinary statute
restricting marriage to opposite sex couples. In 2004, Gavin Newsom, San
Francisco mayor, grants marriage licenses on the grounds that he believes
Proposition 22 violates the state equal-protection clause. The court
ultimately rules he lacks authority to do that unilaterally. In 2008, the In re
Marriage Cases come down in May, ruling Proposition 22 unconstitutional
under the state constitution. And so in the immediate aftermath, obviously,
comes Proposition 8, which is approved 52 to 48%, denying marriage rights
to any but opposite sex couples. Passed in a referendum as a self-styled
effort to amend the constitution.
MR. OLSON: Amend the California Constitution.
MS. BESKE: The state constitution. Yes, rather than to revise, and there follows an
unsuccessful lawsuit claiming it revised rather than amended and therefore
needed to have sort of a greater percentage of public support. The Strauss
litigation.
MR. OLSON: Yes.
MS. BESKE: So, how much were you following the issue as it unfolded before November
2008?
MR. OLSON: Only as just a citizen and a former Californian. And I get the Los Angeles
Times every day a day late, and my law firm has a major California presence,
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so I feel in a sense still a Californian. So I paid attention to what was going
on, but I wasn’t professionally involved.
MS. BESKE: Okay. And so the election happens and then there’s this storied lunch at the
Polo Lounge that you didn’t attend where Rob Reiner and his wife, Michelle,
and others ran into your former sister-in-law.
MR. OLSON: Yeah.
MS. BESKE: Tell me about her.
MR. OLSON: Her name is Kate Molene. That’s a married name, her maiden name was
Bales, which was my then-wife’s name. She’s a professional. She does
various different things with non-profits in Los Angeles. She seems to know
a lot of people. She’s a lovely person, very, very bright. She had a
relationship with the Reiners as a result of her children’s relationship with
some of the Reiner children, or one of them, or something like that. But
anyways I can’t remember the details of how the relationship evolved. But
they did know one another. And Kate, I think, went by the table and they
chatted a little bit and they were talking about—it was not long after
Proposition 8 was passed. And the Reiners were with Chad Griffin – and I
don’t know who else as I sit here today. And when Kate came by the table or
vice-versa they disclosed the fact that they were thinking that someone needs
to bring a federal constitutional challenge because this challenge to
Proposition 8, which amended the California constitution, somehow violated
the California constitution, wasn’t going to go anywhere or was destined to
lose. And someone should bring a federal constitutional challenge to
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Proposition 8 under the Equal Protection Clause of the United States
Constitution. And she thought about that after they separated and, I think,
later in the day called up Michelle Reiner and said you should consider, if
you’re thinking about a federal constitutional challenge, you should consider
my ex-brother-in-law, who argues cases and has argued cases in the Supreme
Court. He knows how to do it. Kate and I have always gotten along quite
well. So she made that suggestion to the Reiners.
MS. BESKE: Had you talked to her in the interim before she ran into them at lunch? Did
she have any particular, specific cause to think this might be of interest to
you?
MR. OLSON: I can’t recall whether she did. She did call me on the phone. It was after that
exchange with the Reiners. But she said would you be interested in
connection with a challenge like this? Because I am recommending you, or I
have recommended you, to the Reiners. Would you accept if they called, or
someone called on their behalf, would you be amenable to having a
conversation about it? And I said yes. I had been contacted earlier than that
by the proponents of Proposition 8. Sometime after Proposition 8 passed.
MS. BESKE: So just in the two, three days prior?
MR. OLSON: I can’t remember the chronology. But someone had said would you be
interested in defending Proposition 8, and I said, no I wasn’t. I found the
whole idea of what Proposition 8 did distasteful and harmful, and I
personally thought it was a bad idea, and I thought it was a bad thing that was
happening, and I was not interested. It wasn’t any kind of an official request,
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but someone had been sent to contact me to assess my interest. So when
Kate did call, my memory is that I did say yes, I would be interested.
MS. BESKE: Right on the spot?
MR. OLSON: I’d be interested in talking about it and, I think, I said, you know your
memories are not perfect, mine certainly isn’t, but my memory is that I said I
would be interested in doing this if it was going to be done right. That means
fully prepared, fully handled, staffed, researched, all of that stuff. And be
prepared to go all the way to the Supreme Court, and you really have to do
those sort of things seriously and think of a lot of things that involve a lot of
legal work and strategic decision-making and tactical choices and that sort of
thing. I didn’t go into that degree of detail. But that’s what I had in my
mind. Yes, I might be interested if we were going to do this right.
MS. BESKE: Okay. So I know that Chad Griffin flew to meet with you in late November.
There were a series of phone calls, obviously, setting up that meeting, but
were you engaged in kind of tactical conversations with the Reiners in
between?
MR. OLSON: No, I wasn’t and I hadn’t known the Reiners. But at some point Chad called
or Kate may have said Chad’s going to call. So we did have a conversation,
Chad and I did. And he said he wanted to talk to me in person about this and
he was representing the Reiners, and so we had that meeting here.
MS. BESKE: Okay. And what do you recall of that meeting? Was he suspicious-seeming
or trying to ascertain your bona fides?
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MR. OLSON: Well, he was. He definitely made no secret of that. Because of my
reputation as a conservative, why would I be interested? Would I be
interested? I think he wanted, quite legitimately, to find out how serious I
was about it and whether I was looking at this as something of a game of
some sort or whether I was really serious and cared about the issue and the
people and that sort of thing. We hit it off, I think he would say the same
thing, we hit it off right away. He’s a very, very intelligent, charming,
engaging person. And I convinced him, apparently, that I was serious. And
that it would be something that I would be seriously interested in. At some
point I touched base with my wife, Lady, and with the management of the
firm because if I was going to undertake this, I knew it would have some
level of controversy connected with it, and I wanted the full backing of the
firm, A, with respect to doing it and B, with respect to implementing the
doing of it if that’s what it turned out. So I can’t remember the chronology of
that. But we had that meeting and I did sort of get complete support from the
Chairman of our firm.
MS. BESKE: With no reservations?
MR. OLSON: No. No reservations.
MS. BESKE: That’s fantastic.
MR. OLSON: And I said it will be a big commitment. It will be very visible. I don’t know
how much we are going to have to contribute. I wanted people to contribute
to our legal fees because I wanted it to be an enterprise that was taken
seriously. Not just, I don’t mean to disparage pro-bono work.
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MS. BESKE: Sure.
MR. OLSON: But I wanted it to be a full-fledged effort. And therefore I wanted people to
engage with it and make it, and to own it. And therefore I wanted, I can’t
remember when I expressed all of this, but I pulled some numbers out of the
air and said people are going to have to participate. And then the next step
was a meeting that took place at the Reiners’ home, and also we had a dinner,
maybe that was after the meeting at the Reiners’ home. We had a dinner at a
restaurant in Beverly Hills and Norman Lear came. Carl Reiner, Rob
Reiner’s father, is very close to Norman Lear, and Norman Lear was very
interested in this, and we had a session around the table at Mr. Chow’s
famous Chinese restaurant in Beverly Hills. Where we talked about it. Lady
was there for that. And the meeting at the Reiners’ home which preceded the
Chinese restaurant meeting included some people that were going to be
financial backers, people such as J.J. Abrams. And again, I sort of had to go
through my own thoughts about the issue. What I thought the legal issues
were. What I thought the strategy was. What I thought some of the
procedure might be. How we would handle the case. That sort of thing.
And answered people’s questions. I remember one or more people asking,
what is the strongest argument on the opposite side to justify California’s
restrictions on marriage? What is the toughest argument you’re going to
encounter? And we talked about that, and, I think, a lot of people were
concerned, are you willing to be the face of this case?
MS. BESKE: And you didn’t have any hesitation about that?
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MR. OLSON: No.
MS. BESKE: You anticipated and in fact got some blowback from friends once your role
was disclosed.
MR. OLSON: Right, yeah I did anticipate that. And I did think that there were people that
would disagree with me. Both with respect to the issue of people marrying
someone of the same sex standing alone. But also should this be attached to
the Constitution. Should this right be written into, as some people might put
it, the Constitution. I didn’t really have any reservations. I felt strongly
about the human issue and the right of people to marry someone that they
love and I felt that this was not, a lot of people characterized this as, well,
you were just choosing to be gay or you’re choosing to have those kinds of
relationships. And public opinion has changed a lot –
MS. BESKE: In a very brief amount of time.
MR. OLSON: In the ten years or the seven or eight years since then. But lots of people
think that that’s just a lifestyle. Justice Scalia characterized it that way in one
of the dissents that he wrote. Or the homosexual agenda, or stuff like that. I
felt that, people are gay, this is not something that you decide, that you walk
into a room and select A or B and I’m going to be gay this week or
something like that. I felt it was something that was a characteristic that was
inherent in the individuals. And that great harm and pain was being caused
by measures such as Proposition 8. Not just with respect to marriage but
other measures that discriminated or allowed discrimination against gay
people. I also felt the Constitution banned it, because of the Constitution’s
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Equal Protection Clause and Due Process Clause, because we spent a lot of
time researching the fundamental right to marry and what marriage means in
this country. So I felt that those constitutional principles coming together
would vindicate the right of these individuals under the Constitution to be
treated equally. I believed right from the beginning in the strength of our
legal arguments, the legitimacy of our legal arguments. And I believed that
we could persuade the Supreme Court. And lots of people didn’t think we
could win. Lots of people didn’t think that we should be doing it, or anybody
should be doing it, lots of people didn’t like the idea of me doing it. A lot of
the LGBT groups didn’t trust the whole venture. They thought it was a bad
strategy. You should go state by state and convince people, win people over.
MS. BESKE: Or take on the adoption issue first, then sort of gradually build.
MR. OLSON: And there’s been books written about this. But I wasn’t persuaded by any of
that. I thought that there’s tens of thousands, hundreds of thousands of
people that are being affected by this everyday all over the United States and
they had lost, the LGBT groups had lost something like 20 or 30 straight
referenda on the issue – every time it went to the polls they lost. And they
had just lost in California after spending tens of millions of dollars opposing
Proposition 8, they had just lost. The idea that they were going to go back to
the voters and get a different result was problematic. And it wasn’t going to
help people in Alabama or Arkansas or other states where they were not
going to win elections even if they could win them in some places. And
there’s no shortage of lawyers in California, right, that’s not disputable, and
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some lawyer was going to bring this case, and so it was maybe going to wind
up in the Supreme Court no matter whether we did it or not. And if it was
going to wind up in the Supreme Court it would be better to be handled by
someone who knew how to handle a case in the Supreme Court. And I felt
that we did. So it was all of that going on, but no I didn’t doubt the rightness.
I don’t mean to sound sanctimonious here; I thought that we were right and
that it was something that should be done.
MS. BESKE: To me, knowing you as I have over the course of this project, it’s not from
left field because, though you’ve always been aligned with the Republican
party, I haven’t seen as much of an alignment with the social conservative
strain as I have with sort of a more libertarian, sort of Goldwater Republican
strain. Is that fair?
MR. OLSON: I guess that’s true. I hate to put myself in a box.
MS. BESKE: Sure.
MR. OLSON: Nobody does. But you’re right, and you’ve characterized it correctly, I think.
That’s part of growing up in California, maybe. So I was a little surprised in
California how could they have lost that vote the same night, I mean the same
day that Californians overwhelmingly voted for Barack Obama to be
President of the United States. But maybe growing up in California and
knowing people who were gay, or knowing people who in retrospect were
gay all along. Or being a part of that culture where individual liberty is a
frontier, still a lot of frontier mentality, times have changed and so forth. So
maybe that was it – and my parents who were very, very strong about the
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respect that you give and equality, that people of all races and all religions
and all backgrounds are entitled to. And you don’t have any of that
discrimination – my parents would not – would never have tolerated any of
that. So I guess that there is a kind of libertarian streak in my politics.
MS. BESKE: So you’ve got that kind of moral compass emanating from your background
and from your parents and then it seems from what you’re saying just as
intriguing is this idea – I think we can win this. The thrill of the legal
challenge ahead. Was that a piece of it as well?
MR. OLSON: Absolutely. I did feel that we could win this case, and this was going to be a
great endeavor to find the right way to win this case. And I felt right from
the beginning, we talked right from the beginning, we have to try to change
public opinion because people were saying there’s going to be a backlash.
It’s going to hurt.
MS. BESKE: Sure.
MR. OLSON: And some of the LGBT people felt this way. If you impose this decision
from the Supreme Court on the public, it’ll be like Roe v. Wade and people
will never get over it. There will be a backlash and it will hurt LGBT people.
I thought that it would be a hollow victory if we won in the Court and people
didn’t accept the right of our clients to get married. And therefore we had to
work to change public opinion. And it was going to be a concentrated effort
to change public opinion by talking about the issue. And I thought that when
we got David Boies into it, that was part of it, I thought that would help
people trust the case. Because David is an extraordinarily good lawyer, but
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also well identified with the other political part of the world. And that the
two of us working together could draw a lot of attention, just the existence of
our relationship would draw attention, which was true.
MS. BESKE: That was brilliant.
MR. OLSON: Worked out great.
MS. BESKE: That was absolutely brilliant. It was the odd couple. These two adversaries
joining together in one fell swoop. It removed the politicization of the issue.
MR. OLSON: That’s what we felt.
MS. BESKE: How’d you think of it?
MR. OLSON: Well, I thought right away I wanted to get someone on the other side of the
political spectrum so that would defuse the suspicion of me.
MS. BESKE: That you might be sandbagging, or . . . ?
MR. OLSON: The idea that I would take on a case to lose is so kind of offensive to me.
MS. BESKE: Sure.
MR. OLSON: But nonetheless some people were saying that. But also that my heart
wouldn’t be in it, and that I wasn’t the right person to be right out in front of
this, and I didn’t know blah blah blah. So I thought I wanted someone who is
a well-known, accomplished litigator who was well known on the other side
of the political spectrum. But would also be a co-equal partner on the
venture. And we thought of various different possibilities, but for various
reasons we weren’t quite ready to go forward completely. And David and I
had become friends, and Lady and Mary Boies, and the four of us had done
some things together.
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MS. BESKE: You guys had biked in Europe.
MR. OLSON: We, I can’t remember when the biking started. I think the biking started,
they’d been doing it longer than I have. So our first bike trip with this group
may have come after we decided to do this. But we were having a phone
conversation on a Saturday, as I recall, and I said, I think, I can get David
Boies to join this thing, and, I think, the Reiners were on the phone, Chad
was on the phone, Reiner was on the phone, maybe Ted my partner. And
everybody said, “Oh my God, that would be terrific.”
MS. BESKE: From a PR standpoint, it’s amazing.
MR. OLSON: It accomplished everything.
MS. BESKE: Sure.
MR. OLSON: Because it put, he is an extraordinarily good lawyer, and he’s got a good law
firm and so we’d have the benefit of his talent, the benefit of the two of us
coming together, so wouldn’t be right-wing left-wing, it wouldn’t be
Republican or Democrat, it wouldn’t be conservative or liberal. It’d be
American as the Constitution. It’s – we are doing this because it’s coming
together and we want the country to come together and we also – the way it
turned out – and some of this turns out better than, it turned out better than
we even could have conceived because the very existence of our working
together generated all kinds of publicity. People wanted to know how did—
the odd couple was a phrase used frequently. Why did you do it? Or how
can you do it? And then that would lead to a discussion of the issues. And as
David and I got to be, we are so close that we can finish one another’s
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sentences, almost our thoughts. And we could talk about the people and the
rights and the justice and the harm and all of the things that we needed to talk
about, so we could go on television, and we could go on anything, I wrote a
long cover story for the Newsweek and he did a piece in the Wall Street
Journal. And then we’d appear on television shows and all of them and talk
about this issue so people would listen to our arguments on the merits.
MS. BESKE: So the nature of your relationship in your prior adversarial litigation
relationship enabled you guys to start a friendly debate.
MR. OLSON: Yes.
MS. BESKE: Because of that initial interest. That’s very fascinating.
MR. OLSON: And I’ll say one more thing, polls changed like unbelievably, and that was a
wedge issue in the 2004 Presidential election. Here we are only four years
later and the polls at that time were about if you average them up, I have a
whole folder full of polls as this case had started, I have the polls as of May
of 2009 when we filed the case and from newspaper clippings and things like
that. The polls, if you average them across the country were maybe 56-57 to
44-43 or 42 or something against the right of people to get married. And you
could see I’m not saying that it was attributable to us, but what we were
trying to accomplish became accomplished. The polls started to change. The
negative kept going down, the affirmative kept going up, and by the time we
got to the Supreme Court it was almost completely reversed. It was like
56/57 against 41/42 in favor of marriage equality, and if you polled people
under 30 it was like 80/85 percent. And as the population ages, you know
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those people become older and their views, people in their 30s would say
what are you talking about, of course they should be able to get married.
That overwhelming thing, and of course it was more on the liberal side that
way, but the opposition on the Republican side kept going down. So this
wedge issue changed by a total aggregate of 25 points.
MS. BESKE: That’s interesting.
MR. OLSON: In the course of 5-6 years.
MS. BESKE: And I’m sure you can sort of map it to various developments in the litigation
itself.
MR. OLSON: Well, pretty hard to do that. Public opinion polls being what they are.
MS. BESKE: Sure.
MR. OLSON: And different people do these polls, but we felt that it was happening, we felt
that the change in public opinion helped our case because it made the legal
issues sound more, well, part of our culture. And the legal case helped public
opinion because every time we had a court hearing we’d have a press
conference, and then we’d have more television appearances, and so it was
synergistic – the case helped the public opinion. Public opinion helped the
case. It was amazing.
MS. BESKE: So at this point, so you get David Boies on board. So there’s a lot going on
behind the scenes before the point at which you were very strategic in the
press conference announcing the lawsuit. So there’s a whole period of time
in which you’re looking for the ideal plaintiffs. And I’ve seen videos and
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movies, and you absolutely found them. What was that process like? Or did
you have a role specifically?
MR. OLSON: Most of that was happening out in California. The other thing I wanted was a
field general in our firm.
MS. BESKE: Sure.
MR. OLSON: Because I’m here, and this is California, so Ted Boutrous, who’d started his
career here, right here, working with me on things like punitive damages and
stuff like that. And then who after a number of years moved out to California
to do our appellate practice out there, he’s a wonderful lawyer, and he agreed
to be the field commander out there. So he led with a bunch of our other
lawyers the effort to find the right people to be the plaintiffs. We wanted
people that were intent on getting married. We wanted people that we
believed would continue to want to get married. You wouldn’t want people
mooting the whole case by changing their mind about one another. We
wanted people that were strong enough in their lives and in their convictions
about themselves and so forth to withstand the pressure. We didn’t know
how much it would be. But it’s very hard to be a pioneer on something like a
civil rights thing. We wanted people that didn’t have anything funny in their
background like they hadn’t paid their taxes or you know. So we had to vet
them, and we came up with these two couples that had absolutely turned out
to be perfect. We were careful with them; we nurtured them. We didn’t let
them speak at first and then we gradually pushed them, or allowed them to be
pushed into the public arena and gave them a larger role in speaking and
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talking out and telling their story as time went by. And they became very
skilled, and I don’t mean that in a negative sense, it was very genuine. And
when they talked about, when they learned how to talk about themselves and
were capable of opening up in public about their own feelings and who they
were and what it was like to be gay and all those things, they were really
compelling people. In the trial, I said the best opening and closing argument
was just putting them and letting them be themselves. So we very carefully
did that. That was done in California. We did very carefully map the
timetable we wanted. We didn’t want other people to know that we were
doing this because we were afraid of others filing a case that could get ahead
of us on somebody’s docket or file it in the wrong court. We considered
whether we were goings to do it Los Angeles, where the male plaintiffs were,
or Northern California where the female plaintiffs were. We considered all
of those things. We considered that the clock was ticking on the Prop. 8
challenge under the California constitution. In California, the supreme court
must decide cases in a 180 days or some number like that, and so we knew
that there was going to be a decision right around Memorial Day. And so we
filed on the Friday before Memorial Day.
MS. BESKE: Friday, May 22nd.
MR. OLSON: Yes, and then we kept it, we didn’t tell anybody about it. We sent one of our
associates in there to the court in San Francisco on the Friday before the
Memorial Day weekend to just file it and do it at 4 o’clock or something in
the afternoon. And we kept hoping that no news of it would leak out.
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Because of our names, we were afraid that someone would see that filing, but
it was the Friday before Memorial Day weekend, and sure enough it worked.
And then the California Supreme Court decided that Strauss case –
MS. BESKE: Tuesday 9 a.m.
MR. OLSON: Yes. And then on Wednesday, we had our press conference, I think was the
next day, at the Biltmore Hotel in Los Angeles, where we had flags all over
the place. We had David and me and Chad Griffin and the four plaintiffs on
a stage, and we had this press conference.
MS. BESKE: And how do you set something like that up? I mean do you invite the press?
You’re going to have a big announcement. Or do they know the
announcement in advance?
MR. OLSON: We leaked. Well, first, this is Chad’s business.
MS. BESKE: Sure.
MR. OLSON: And so he took care of making that happen. But he did leak, as I recall to
one or two selected organizations, that this is, that something like this was
going to happen. I can’t remember who we talked to or what he said. But he
did get them all there. I mean there was, the room was filled with press.
Cameras and reporters with their pads and everything like that. So it was a
big deal. And we got a lot of coverage.
MS. BESKE: The initial response was most likely shock at the juxtaposition of these two
adversaries and your role. I know that Ken Starr, your friend and colleague,
had been involved in an entity called projectmarriage.org or com.
MR. OLSON: Yes.
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MS. BESKE: Did you talk with him after?
MR. OLSON: Oh, afterwards I talked.
MS. BESKE: Sure. Oh, not beforehand, of course.
MR. OLSON: No. He was the lawyer for the people defending Proposition 8 in the
California Supreme Court and so, I think he’d done a pretty good job –
MS. BESKE: He won.
MR. OLSON: Because the reports were that he was going to win, and I never thought there
was any doubt about it. It was an amendment to the state constitution, it
wasn’t a revision of the constitution, but no, I didn’t talk to him.
MS. BESKE: So I’m sure that – I’ve read that Robert Bork, for example, didn’t even want
to talk about it with you. Did you have any sort of acrimonious
conversations with friends?
MR. OLSON: I don’t recall too much of that. I do recall people arguing with me about this
– you’re wrong – this shouldn’t be in the Constitution. I do remember things
like that. I don’t get too upset when people think that I’m wrong. That
happens all the time in our business. I did get some nasty letters and
coverage and reports and things like that. And I basically threw those away.
MS. BESKE: Well, you probably got them from both sides as well. Because I’ve also read
that prominent LGBT leader from Lambda, Davidson – put together a dossier
of all the bad things you’d done.
MR. OLSON: Yes. Our team had a meeting with these groups –
MS. BESKE: I guess that was before you filed.
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MR. OLSON: Yes. It was before we filed. So they kept the secret I guess. I can’t
remember. That took place out in California. Ted Boutrous went to that.
But yes, they put together – I never saw it – the dossier about how horrible I
was and how I was on the wrong side of every conceivable issue. I don’t
know what issues they were talking about, affirmative action may have been
one of them. And they used that to try to persuade Chad and the Reiners to
drop this idea, that the strategy was wrong. That they knew what they were
doing. We were wrong. We were going to lose. Wait until there’s a better
Supreme Court. This is going to hurt the cause. All of those things. But we
thought we were right. And we thought that these people, gay and lesbian
individuals, had a right to have their position articulated and vindicated in the
courts if we were right. And I thought we would win in the Supreme Court.
I always kept saying well maybe we can pick off a 6th vote somewhere, or a
7th, and we’ve said in public we were not writing anyone off or taking
anybody for granted. But we were always of the view that we could manage
to get, I felt, reading Justice Kennedy’s opinions in the Colorado case, in the
Texas case, and other things that he had written, I was pretty confident that
there was no way he wouldn’t come out on the right side on this. Now,
maybe it was somehow possible that he wouldn’t come out the right way.
But I read those opinions and I could almost feel the way he feels.
MS. BESKE: So, strategically there are a bunch of different ways that one could possibly
approach a case like this. And there are paths that you didn’t take. For
example, you didn’t try to argue that gay people were a discrete and insular
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minority under a kind of Carolene Products theory, like give them some
heightened scrutiny argument.
MR. OLSON: Yes, we did.
MS. BESKE: Did you?
MR. OLSON: Yeah, but go ahead with your question.
MS. BESKE: So it seemed like your fundamental argument was this dignity-based right to
marry. And by dignity I’m specifically sort of roping in things Justice
Kennedy has said about the fundamental right to marry emanating from
Loving and then this Romer-esque idea that you can win by taking out every
single solitary one of their asserted interests. Do you think you could’ve won
simply on a Romer theory, I mean, did you need both pieces there?
MR. OLSON: We, well I wanted all of it. If you read Loving v. Virginia and Romer v.
Evans and Lawrence v. Texas and try to find out whether those are due
process or equal protection cases, you can’t figure that out. Because the
Court was thinking about both things. Fundamental right – they had said –
I’ve said this a hundred times, or a thousand times – the Supreme Court had
said the right to marry was a fundamental right and maybe the most
important right that we have. Fourteen times in Supreme Court decisions
involving children, abortion, divorce. And, so there was really strong
language about this as a fundamental right. That people have the right to that
relationship, but I didn’t feel that was enough. I felt that you also had to
argue that gays are – this is an immutable characteristic, this is a class of
individuals. And we can’t discriminate against classes. That’s one of the
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first lines in Romer. There was also something in Christian Legal Society v.
Martinez that Justice Ginsburg had written, and we’d seized upon with
respect to the fact that this is a classification, and we don’t do that – so if you
interlace those two things. There was a lot of internal debate over
everything. David and I agreed on every step of the way on everything. It
was amazing. But there were a lot of issues, respectfully, we wanted inner –
not turmoil – but we wanted to vet everything – so there were a lot of
arguments about what’s the right strategy. I was, right from the beginning –
wanted to go for the fences – and go for the broadest possible thing. I figured
that, well, if the courts don’t like it, that broadly, they can narrow it down as
long as we win! So, some people said, “Well you can argue in California that
they did have a right and it was taken away,” so they ought to win because it
was a right that was granted by the California Constitution and then
confirmed by the California Supreme Court and then taken away. That – or
you could argue that, well, the Strauss decision left 34,000 marriages intact
so you had gay people that had gotten married during this interregnum that
could stay married, but if they got divorced then they couldn’t remarry the
same person. So you had that, so, that was the crazy quilt, I called it,
argument that California was unique because blah, blah, blah, so we could
win that way – we could win because it was a right that was taken away. But
I wanted all of that in there – and I felt very, very strongly – I want to argue
the core thing. These are people who are being discriminated against.
You’re taking away their right to happiness and it’s because of who they are.
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That is wrong under our Constitution because that seemed to me to be the
place where all of it came together. So, we all knew that, okay, if some
judges along the way decide that they don’t want to go that far in this case,
we also had the standing thing – and we knew we could win on that – or we
thought that was a legitimate argument. We lost it in the California Supreme
Court, but –
MS. BESKE: That didn’t come up until after Judge Walker’s decision, though, right?
Because it’s at that point that California decided not to pursue an appeal.
MR. OLSON: Well, we had it in our mind all along that they didn’t have standing. But as
long as the state was there and granted standing, we didn’t dispute it.
MS. BESKE: Okay.
MR. OLSON: But once California after the Walker decision decided not to appeal, then the
standing thing was there. Now, we felt we had to argue it because it’s
jurisprudential – and we would look stupid – and maybe disingenuous – if we
didn’t argue it, but on the other hand, I wanted to win on the fundamental
concepts, the ones the Supreme Court finally decided in the Obergefell case,
but, all along, it was – we set out to overturn Proposition 8 any way we can
kill Proposition 8, and we won.
MS. BESKE: Right.
MR. OLSON: But, I always wanted to win everything.
MS. BESKE: Sure. Well, and ultimately, you put into place the key pieces of the puzzle
that got us there.
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MR. OLSON: I think we were certainly instrumental in helping that happen because there
were – after we won the standing case then there was the Virginia – we won
the Virginia case and then we helped out in other cases and one after the
other after the other until the Sixth Circuit created the conflict that got them
there.
MS. BESKE: Sure, what was your initial impression when you guys drew Judge Vaughn
Walker?
MR. OLSON: We thought that was kind of perilous. First place, he was Chief Judge, that
was a plus. He had, he was a very, very smart man – Stanford graduate and
all – he had been a partner at Pillsbury, I think it was, and he was
outstanding, intellectual, a man of great integrity and courageous, considered
to be somewhat independent, you know, that is to say, not down the line on
any particular issue. But it was an open secret that he was gay and we
thought, boy, that’s going to be a lot of pressure on him. And what is he
going to do in terms of how he’s going to be able to deal with this. Will he
bend over backwards – what is going to happen? Lots of people thought we
engineered that – we did not engineer that. We, like you do in almost every
district court, as far as I know, you go in there, they spin a dial, or they do
something like that, and you get somebody’s initials, and that gets stamped
on the complaint. That was what happened. So, we were concerned about it
but we figured, well, we’re just going to play it straight.
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MS. BESKE: You had mentioned that the male plaintiffs were based in LA and the female
plaintiffs were based in Northern California. What prompted you to choose
the Northern District?
MR. OLSON: There was another case, or there was a potential case that somebody had filed
in the Central District –
MS. BESKE: – interesting –
MR. OLSON: and we wanted to stay away from that – we didn’t want to have a low number
problem and be assigned to the same case that somebody else had already
filed – and we felt that San Francisco was a pretty comfortable environment
in terms of gay people, you know, but we – the final thing was we wanted to
stay away from that other potential litigation, which wasn’t directly on point,
but it was close.
MS. BESKE: Got it.
MR. OLSON: And so we finally decided the Northern District of California was the right
place to be. And it helped, in the long run, I mean, in terms of managing or
dealing with public opinion, there was a home court, sort of – people liked
us.
MS. BESKE: Great. Now, your adversary in this litigation was Chuck Cooper, with whom
you had a history, obviously, he having succeeded you at OLC. What was
the nature of your relationship before the inception of this case?
MR. OLSON: We’ve always been good friends. He’s been involved in the Federalist
Society, and he was a clerk for Justice Rehnquist. He’s someone that I
always respected. He’s a fine person, a good lawyer, and so in a way I was
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pleased it was someone of his talent and integrity that was going to be
arguing this case on the other side, and because you’re going to have to win
against the best, if the lawyering isn’t good on the other side, you have
worries about people bending over backwards, or some mistake gets made in
the process. We weren’t worried that he wouldn’t do everything necessary
and appropriate to win. We also made the point every day in court – we had
this three-week trial – we, and the public was in the courtroom – I always
shook hands and even did a little hugging, or something like that, just to
show that we respected and had affection for our opponents. We wanted this
given the emotional nature of the issues on both sides. We wanted this to be
a proper, distinguished engagement in the legal system. We wanted the legal
system that we were in to be respected. That’s a part of the outcome. If
you’re going to win, you want people to respect the way the process unfurled,
and having a good, hardworking opposition, but mutual respect in the
courtroom, made it easier for the judge. Judges hate any kind of antipathy
between the lawyers. It makes them uncomfortable. They don’t want it, they
don’t think that that’s the proper place for that sort of thing, so everything we
did, every little thing, we wanted to be done right.
MS. BESKE: Including resisting, would-be intervenors, other than, I guess, you guys were
stuck with the city attorney, but –
MR. OLSON: We sort of did a soft opposition –
MS. BESKE: Okay.
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MR. OLSON: To the City and County of San Francisco. We thought they could add
something – and I don’t know whether we finally consented to, or just said
we wouldn’t – we didn’t object very hard. With respect to the LGBT groups
and the ACLU, we did not want them to be interveners because we did not
want to lose control of every decision that was made. And so we decided, we
are not going to go along with this, and that really made them mad, at least
for a while. But I was determined that the way to win this case was to make
the decisions that we thought were the right decisions after discussing them
internally, so that we could hear the other points of view.
MS. BESKE: Right. Okay, so Cooper files the Motion for Summary Judgment on
September 9. There’s argument October 14. It seems by this point that the
interests asserted on behalf of Proposition 8 were winnowing, and at that
point the biggest interest that Cooper was claiming was this procreative
interest in marriage.
MR. OLSON: It kept changing. I would say from a strategic standpoint, the way the case
unfolded, we thought at first that we would file a motion for preliminary
injunction stopping the effect of Proposition 8, allowing people to get
married. We didn’t think there was any chance we’d win that because all of
a sudden the idea of people getting married and maybe being told at the end
that they didn’t have right to do that wasn’t going work as far as a
preliminary injunction, but when the preliminary injunction was denied,
that’s an appealable order, so we thought we could immediately get our legal
issues to the Ninth Circuit and then the Supreme Court and that would be the
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fastest way to the outcome that we wanted. Judge Walker, God bless him,
said, “I’m gonna get you to your – this is going up and it’s gonna be decided
above me – I’m just a way station, but I want a trial. I want to hear, I’m a
trial judge, I want to hear evidence from whoever you can bring to me that
will talk about these issues,” whether being gay is an immutable
characteristic, history of discrimination, all those Carolene Products factors
and other factors – so, he gave us, during that summer, maybe July or August
– a list of questions and issues that he wanted us to address in a trial. Then
he denied the preliminary injunction but said I’m going to give you a trial,
and I don’t know when, but the date of January came in and we decided, at
that point, well, you know, we can prevail in a trial. We can bring experts on
all of these issues, and that’s where the LGBT groups had done such a great
job of finding the best experts and putting them on in other cases and things
like that. But, it was a very, very short period of time, so we had a few
months to get the experts, have them do reports on raising children, on
marriage and all of these things that you will ultimately see in the trial – have
depositions, let the other side know who they are, take depositions, do
depositions on the other side’s witnesses and all of that stuff and get it all
done, and we’ll go to trial in January, a very short period of time. So, we
embraced, as soon as he made that decision, we huddled together and we
said, absolutely, we’re going to be in love with his decision to make us go to
trial.
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MS. BESKE: Well, his nineteen questions are amazing to me in how comprehensive – I
mean, they kind of communicate, very clearly, a judge who’s going to
explore every facet and wants to see every conceivable argument, so that
must have been quite reassuring.
MR. OLSON: Absolutely. And it sort of, gave us a roadmap – Okay, you’ve got a really
good judge, a really smart judge who knows what these issues are and wants
you to make a record for him on all these issues, and we felt very confident in
the ability to put on evidence, expert evidence and all kinds of evidence
about all of those issues and winning on all of those points, so we, we went
for it, you know, and that’s where a lot of expense went into finding experts.
We went all over the country to get these experts. Chuck went into Canada.
He had a couple of experts. David Boies took depositions. But in the
meantime, then, Chuck filed this motion for summary judgment. And we
were pretty confident we were going to win that because the judge had
already said “I want to have a trial.” So, we briefed it. That was fine. Had
arguments on that. Their theory of the case kept morphing – you can’t make
it a religious argument because then you run smack into the First Amendment
and, you know, the establishment of a religion, that sort of thing – even
though that may have motivated a lot of people in the way they voted
because our opponents were the Mormon Church, the Catholic Church, the
Baptist Church, and so forth. And then they moved on to talk about how it
was going to somehow diminish marriage, and we felt pretty good about that.
You weren’t going to not get married because of gay people next door were
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getting married. You weren’t going to not have children because gay people
had families – so, we thought that was just counterintuitive if you really
looked at it. And then they came up with this procreation argument, and it
was very hard for me to understand the idea that you wanted to channel
sexual activity into marriage because blah, blah, blah, I mean, you have to go
back beause I never really got it, you know, I made fun of it in my arguments
in Judge Walker’s court and in the Ninth Circuit and a little bit in the
Supreme Court, and it was very hard for them to articulate. That’s what they
were sort of stuck with.
MS. BESKE: Well, there’s that interchange in the summary judgment hearing where Judge
Walker says to Chuck Cooper, “How does permitting same-sex marriage
adversely affect the state’s procreative interest in marriage?” And his answer
was, “I don’t know. I don’t know”. And you must have felt a little –
MR. OLSON: Oh, over the moon, because that was our point all along – if it’s rational
basis, intermediate scrutiny, strict scrutiny – whatever the heck it is, you have
to have a reason – so what is the reason? So, if the reason is it’s going to
ruin marriage somehow, what is the harm? Now, explain that harm. So we
were thumping away on that in our briefs, and then Judge Walker at that
hearing asked it, and he got some sort of mushy answer, and then he asked it
again, and maybe this was the third time, and he said, “Now, look, I want you
to be straight with me about this. Give me an answer to this question.” And
then there was this pause and, you know, it seemed like a long time – it was
probably just a few seconds – and Chuck Cooper came up with this “I don’t
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know.” And then he repeated, “I don’t know.” And I thought, well, that’s the
case, you know, we couldn’t ask for anything better than that.
MS. BESKE: So you were systematically knocking away all of their asserted interests. At
the same time, you had all of this information of the underlying anti-gay
animus from people like Bill Tam and other Prop 8 proponents, and how did
you make use of that?
MR. OLSON: Well, I didn’t fully embrace making too much out of that because I thought,
if we win on that basis, how do you win in the next state where you can’t
prove that? If it’s wrong to deny these people the right to get married, it
doesn’t make it wrong because there are bad people on the other side, I mean,
this comes up in a lot of constitutional questions – zoning cases and equal
protection and due process – you know, you see this, and I also thought, “you
can’t question the motives of individual legislators.” You know, the courts
don’t like that because you can’t go ask 435 people or 535 people, and
you’ve found a couple people that voted for the measure because of the
wrong reason, you know, you can’t do that. And, especially on an initiative
measure where 52% of the people voted – some for the good reason, some
for bad reasons. But, I thought that atmospherically, okay, let’s go ahead and
do it. Let’s be careful that we don’t go so far as to put all of our hopes in that
basket, all of our eggs in that basket, because I don’t want to win that way.
MS. BESKE: …and raise the bar for yourself in other states…
MR. OLSON: Yes. And I also was thinking, the Supreme Court’s going to be nervous
about that kind of jurisprudence.
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MS. BESKE: But Romer left a path there –
MR. OLSON: Sort of –
MS. BESKE: But the initiative process complicates it incredibly.
MR. OLSON: Yes, but Romer was also an intiative. So, yes, he, Kennedy was all over the
place with that and – so, we had to have it in the case. And so I didn’t, I
didn’t make a command decision – no, because, I thought, we had a lot of
good evidence – Bill Tam, some crazy stuff, let’s say – and nasty stuff, some
of the videos that were on television were awful, this “protect our children”
stuff, I really twisted back at them, you know, protect your children from
what? That gay people might be considered normal? You know, that, that is
vicious. I didn’t say vicious, but – so we wanted it in the case but we didn’t
want it to overwhelm the case.
MS. BESKE: Okay, so you have the trial and I like the two chapters in the book where you
talked about David’s cross and he talks about your opening and closing.
Blankenhorn is, at that point, pretty much their only expert witness left
because of the successful depositioning in the month that preceded trial, and
you talk about Boies having had his “Perry Mason moment” in cross. What –
can you recall exactly what that was?
MR. OLSON: Well, there were several, but it doesn’t happen very often that crossexamination
gets you to have a witness, sort of, come on your side, especially
an expert witness. So Cooper argued that, well, because there was a potential
that the trial was gonna be videoed, these people didn’t want to be testifying
in public, so, his witnesses dropped off like flies. That was bogus, because
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all these people had written books – they were expert witnesses, for God’s
sake, they had had their depositions taken on camera. And they were being
paid to be witnesses, you know, so that was bogus, but ultimately the
Supreme Court wouldn’t let the video take place during the trial so they
wouldn’t have had that exposure anyway. But anyway, they dropped off for
all these reasons because, I think, their stuff didn’t carry water at the end of
the day. So Blankenhorn was left, and Blankenhorn was kind of a perfect
witness because his PhD was in medieval furniture, or something like that, I
mean, it was amazing, so David did – on the voir dire – David did an
absolutely fabulous job, essentially, destroying this guy as a witness. But it’s
a bench trial, so the judge is going to say, all right, I understand all that, but
I’m not going to keep him from testifying. So then, David does – David is
really brilliant – I mean, every word I said in there – I want to write a book
about cross-examination and just use his cases and just use transcripts of his
trials – look what he did to Bill Gates, you know, and that CBS trial, General
Westmoreland. It happens over and over again with David, but then he just
carefully took Blankenhorn through his own stuff. And then Blankenhorn
knew this was happening, and he tried to be cute, and he tried this and he
tried that and you could sort of see this witness squirming and wriggling and
trying to get away. And David is very carefully, methodically coming back
to it, coming back to it, coming back to it, and he finally acknowledges first,
that children in a gay marriage, same sex marriage, might be better – they’re
no worse – might even be in a better relationship because these people really
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wanted to have children. They went out and did things to have children
instead of just accidentally having them and then he got him to say that at the
end of the day, we would be more American if we allowed same sex couples
to be married. I mean, what more could you want?
MS. BESKE: Nothing!
MR. OLSON: And he got it out of him in several different ways. And we used the most
obvious and explicit ones in the closing arguments and the briefs, but during
those two days, essentially, this was our witness, you know, at the end of the
day. And then subsequently, he wrote an article, an op-ed piece in the New
York Times, saying he had been wrong. Yes, he was wrong when he was
against us. He was right when he was finally for us.
MS. BESKE: So did you, by the time of your closing on June 16, 2010, feel you were
going to win the case?
MR. OLSON: I felt it all along, but I say that with full measure of respect for the fact that I
always think, you’ve convinced yourself that the arguments that you’ve made
are the right ones and I’m so convinced about the rightness of the cause, and
the way the evidence came in. Our witnesses were fantastic, I mean, Nancy
Cott, who’s from Harvard, talks of the history of marriage and how slaves
after the Emancipation Proclamation plotted to get married because that
meant they were really free. Wow, you know, stuff like that. And then the
history of discrimination and the damage that does by this expert that talked
about stigma. And you could feel then – you could – I thought, I am so lucky
to be in this courtroom listening to these witnesses, learning about – we
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learned about ourselves. We learned about our marriage. We learned about
our history. We learned about how evil discrimination is when gays could be
fired, and in the Eisenhower administration, there was an executive order!
Our plaintiffs were so fabulous on the stand, ah! So, yes, by the time of the
closing argument, I just, I just, we all believed we were going to win. And
then the closing arguments came together just perfectly. And we used – the
judge said “well, the Supreme Court wouldn’t let me air or stream the video,
but I’m going to take it anyway.” Because it’ll – I’m going to do the video –
I’m not going to stream it, I’m going to obey the Court’s order, but I’m going
to use the video for myself, to remind myself, to supplement the transcript,
and then he said, “you can use it, you can use that video during your closing
arguments if you want to,” so we went through and I interspersed snips of the
video in my closing argument. We’d pop it up on the screen, and I said
before that our best case was made by the plaintiffs themselves. What is it
like to be discriminated against? What would it be – how would you feel if
you were allowed to get married? What was it like when women who had
gotten married when Gavin Newsom said that they could learned that they
were not really married? And they got a letter saying, well, you’re not
married, you know, they’d had a party and everything, and well, you’re not
married. I thought – and every person whoever saw that – it would bring
tears to their eyes.
MS. BESKE: Sure.
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MR. OLSON: So I used that and then I used a couple pieces from Blankenhorn, interspersed
with my closing argument about equality and fundamental rights and
marriage and all that sort of thing. So it all came together.
MS. BESKE: And, came together wonderfully in his 136-page opinion, which came down
in early August. Were you surprised that the state chose not to appeal, thus
giving rise to the standing issue?
MR. OLSON: I wasn’t surprised. They had given no – they had basically shown up in
court, that’s all.
MS. BESKE: Oh, is that right?
MR. OLSON: Yeah, they were there. They had – the Attorney General had a lawyer there,
but they hadn’t – they were on our side as far as the merits – they were
against Proposition 8, and that’s why the city was helpful because the city –
good legal people, nice people, very talented people in the city attorney’s
office in San Francisco, really high-level people, and they were able to talk
about defending the citizens and how much damage it was to San Francisco.
It was just a nice little added ingredient that, it’s like the flavoring in a stew
or something. So, it was very nice, but I wasn’t surprised. But we thought
the state’s not appealing was kind of troubling because all of a sudden it
created this standing issue on appeal, and there’s some great Supreme Court
cases that are in the ultimate Supreme Court decision that created serious
problem on standing for them, and we pushed it, because, again,
jurisprudentially, we had to.
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MS. BESKE: Sure. One – before we get to that – I was a little bit surprised that there was
a motion to vacate because of Judge Walker’s sexual orientation filed after
the fact. Did that surprise you?
MR. OLSON: Yes, it did surprise me…
MS. BESKE: That was Cooper who filed it?
MR. OLSON: Yes. Was it? I think so, yes! Yes, it was, because he argued it, in the oral
argument in the Ninth Circuit. I thought, well, that’s just going to irritate the
judges. You can’t take the position that a gay person can’t – a gay judge
who’s confirmed by the Senate – can’t handle cases involving gays – what
does that mean about Justice Ginsburg and women’s rights or a woman judge
handling a pregnancy discrimination case or a Thurgood Marshall – what
does that mean? You know, you can’t go there! And, since they’d known he
was gay right from the get-go, to wait till they lose, and then make the
argument, I thought, this is just ridiculous. And, I think, Cooper didn’t –
wasn’t really terribly happy to make that argument, but he made it.
MS. BESKE: So, at what point along the way did the major LGBT groups come on board?
You said they were very useful in helping with the experts and things. Is it
by that point, trial’s coming, here we are –
MR. OLSON: Yes, I think it was during that period between the time when they lost the
right to intervene, they knew that we were going forward, they knew we were
going to do it right, they wanted us to have the right witnesses, other people
dealt with them more than I did, but I spent a couple times on the telephone
with some of the leaders of that group and at that point, at the end of one of
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those conversations, the woman who was head of the lesbian group said,
“you’re gonna be – you are an honorary lesbian.”
MS. BESKE: That’s great.
MR. OLSON: Something Maureen Dowd picked up in a column that she wrote, but I
thought, “okay, so they know we’re serious, we’re gonna knock ourselves
out.” Now, there were some people that still say that we were wrong from
the beginning. We really lost the case. We, all of this, some of the stuff
that’s been written has been really quite bizarre, but the major groups, the
ACLU, Anthony Romero, has told me personally a number of times that he
was wrong. That we were right and what we did was right, and other people
have told us that, other people of stature. So they were very helpful and they
wanted us to win.
MS. BESKE: Based on your read of the oral argument before the Supreme Court, did you
anticipate that it was going to go on the standing?
MR. OLSON: Yes.
MS. BESKE: It was pretty clear from how they pitched it.
MR. OLSON: Well, Chuck Cooper got up – the first thing Chief Justice Roberts did is say
talk to me about “standing”. And he –
MS. BESKE: Headed him off –
MR. OLSON: Yes.
MS. BESKE: Like, right away.
MR. OLSON: Boom! And it went for several minutes, quite a while, and it was clear where
he was coming from and it was clear that they were. And I wasn’t unhappy
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about the prospect of winning on standing, because that meant Proposition 8
was unconstitutional, the District Judge’s findings were reinstated,
everything – but I wanted to win the whole thing. And so when I got up, if
you look at the transcript, I knew he was going to do that to me, too, but I
wanted, and this brought – this oral argument was going to be broadcast, it
was being broadcast, or was going to be broadcast the instant the doors
closed, I wanted to say what this case was all about. I was speaking, not just
to Justice Kennedy, but to the world. And I wanted the people who were
listening to know that this is about the rights of individuals. So, I said, I
know you’re going to want to hear about standing, I don’t know how I
expressed it, but that it’s important to put this in context of what this case is
all about. And I knew, I mean, I had made this up right then and there
because it was on the fly, so to speak, but I was going to get some words in
about that. And I knew I could segue back to it, but I wanted those to be the
first words out of my mouth because I knew everybody would listen to those
first words. When you’re doing a Supreme Court argument, those first few
words are gems, you know, they have to be – that’s the diamond that you
have to get out. So, anyway, I got away with it for maybe 45 seconds or so,
and then he said, “okay.”
MS. BESKE: You had your moment. Now, all throughout you had just the tremendous
support of your law firm, and I should relate that in May, after argument but
before the opinion came down, my husband and I were guests at Joe Warin’s
house and I saw you, met you and Lady and Ted Boutrous, and it was a neat
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presentation that Gibson designed for clients. I mean, the case was clearly
perceived not simply as something we’re willing to support but something we
are so very proud of – I think that must have been personally very gratifying
to you.
MR. OLSON: Yes, and that’s another thing. When we started, there wouldn’t have been a
single public corporation in America that would’ve filed a brief in our
support. Certainly we didn’t know of any who would’ve filed an amicus
brief for us, and the public opinion changed so much and the legal arguments
were sufficiently persuasive that by the time we got to the Supreme Court,
we had an amicus brief signed by sixty-something major corporations. And
they were still calling – is it too late to get in the brief, you know, when the
time was up. So, we were very proud of what we did. We had – we probably
put in – I think I did a statistic, we had some 30,000 hours of legal, lawyer,
timekeeper’s time, paralegals included in the case by the time we were
finished. We did receive some remuneration, but it was probably about, I
can’t remember the number, somewhere between 20% and 25%, or maybe
even less than that of what we actually put into it. And David and his firm
contributed all of their services. There were some, you know, who weren’t in
favor of doing this, but because it’s a lot of lawyers and you’re going to have
lots of points of view, but overwhelmingly, we felt proud of what we did.
The lawyers all wanted to be, you know, many, many, many lawyers wanted
to be on the case. You know, can I work on this case? Can I do this? Or,
can I help? And we did want help. We thought it was good to brag about the
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fact that we had been involved in this changing the landscape of America, but
also we wanted to tell our clients that part of the message there is “we know
how to do it.” If your whole future is at stake as a corporation, a client, and
it’s a big issue, we know how to put this together, we know how to take it,
we know how to be really good lawyers. And, so, that’s the second part of
the message.
MS. BESKE: Absolutely. And it certainly came across very clearly. So, the decision then,
after it came down in the summer of 2013, you weren’t there the moment it
was announced, I’m sorry to say, I’m sure you missed being there. Are you
still in touch with the Plaintiffs?
MR. OLSON: Oh, yes. Absolutely. We – well, in the first place, as the final days of the
Court’s term wore on – the Supreme Court doesn’t tell you when they’re
issuing any particular decision – and as the days of June wore down, you
know that there are fewer and fewer choices for when that decision was
coming down. I went to every decision day in June, except for the very last
day. Unfortunately, that day I had this Third Circuit argument in the sports
betting case.
MS. BESKE: Oh, right, sure.
MR. OLSON: And it was against Paul Clement, who, subsequently was on the DOMA case
on the other side of the defense of marriage – I think he was already involved
in the case. So I was in the Third Circuit, that day, the 26th, or whatever the
day was, and I kept – I can see this train coming to his intersection – it’s
going to happen on the 26th, and I can’t be there, that was the last day – and
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we knew the Third Circuit wasn’t going to say, “oh, so don’t bother showing
up, you know, we’ll do it another day” – that doesn’t happen, you know.
And so, I had to be in Philadelphia that day arguing the sports betting case.
MS. BESKE: How on earth could you have focused – you must have been so distracted.
MR. OLSON: Well, you do. You know, you focus. So, in the Third Circuit you could take
your cell phones in, so the people on my team were monitoring what was
going on in the Supreme Court and so, I think, by the time we stood up to
argue we knew that we had won – and it was on the standing issue. And, I
think Lady was with me and my partner Matt McGill was with me – so, we
rushed out – we had arranged an airplane, and there was an airplane coming
from Washington, and we convened in California so we could have a press
conference and we could do all of those things that – that day, I think – that
day, that night, and the next day. So, we stayed in touch – we stay in touch,
we’re very close with the plaintiffs. Both couples were married as soon as
the Ninth Circuit lifted its stay. The Supreme Court decision was
Wednesday, and they got married on Friday in San Francisco and Los
Angeles. We had our film crews in both places to watch them getting
married and then, a year later, the men, Paul and Jeff, had a repeat marriage
ceremony in Los Angeles with hundreds of guests.
MS. BESKE: That’s great.
MR. OLSON: And David and I performed the wedding. They had already been married –
MS. BESKE: Sure, of course.
MR. OLSON: And then Kris and Sandy moved to Washington –
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MS. BESKE: Oh, wow.
MR. OLSON: They both got positions in the Obama Administration, and one of their sons
went to George Washington, to college. So Lady and I get together with
them every couple of months. And they’ve been to our house several times
for dinner. So, we’re closer to them because they’re here.
MS. BESKE: That’s amazing. Sure, of course.
MR. OLSON: We’re very much in touch with them.
MS. BESKE: Well, I am almost out of the time that we had allotted. I had two last
questions I wanted to ask you, if I have time.
MR. OLSON: Yes.
MS. BESKE: So, over the course of our six meetings, I’ve very much enjoyed hearing your
story. You have a long story and have touched so many amazing things.
What are the achievements of which you are proudest? I suspect we’ve just
spent a bunch of time talking about one of them. What are other key
highlights, over the course of your career?
MR. OLSON: Well, the marriage case is the thing that I’ve been most proud of for so many
different reasons. I think that we made a difference in a lot of people’s lives
and I hear it virtually every single day. If I walk down the street, if I walk
through an airport, someone will stop me and say something, and the people
who don’t like it, don’t stop me. It’s the people that – whose lives were
affected, or who have had family – and I hear that all the time – so, the
difference that we contributed to making in the lives of so many people, is
something that we’re very, very proud of. And I am – and I was – very proud
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of the Bush v. Gore case because there were so many things going on, and we
were having to deal with the media all the time over that five-week period.
And we had to be filing cases in the district court, in the Eleventh Circuit, in
the space of those five weeks, it was two Supreme Court arguments and an en
banc Eleventh Circuit argument – all in the space of ten days. Of course,
many, many, many people contributed to the quality of the lawyering but it
was, I think, pretty good, pretty good legal work. I know it was good legal
work. The Chief Justice – he hardly ever said anything like that –
complimented us, in the second argument – because they had granted cert on
Saturday and we had oral argument on Monday, and we had the briefs on the
merits filed on Sunday, 50 pages, you know, so that was, that was – it was a
momentous, an exhilarating experience. But you know, I’ve been very, very
lucky because we’ve had – I’ve had the privilege of being involved in – a lot
of cases that have had an effect in various different ways. I was up speaking
to a Judicial Conference in Rhode Island earlier this year, I think, in March or
April, and a law professor who taught civil procedure, teaches civil
procedure, interviewed me in front of the law school convocation of some
sort and he said – I can’t remember the number, he said something like
twenty-some cases that you’ve argued are in my civil procedure book.
MS. BESKE: Wow. That’s amazing.
MR. OLSON: And, so I’ve been very, very lucky to have intellectually had, you know, a
feast of things that – and we’ve got the sports betting case that is a big
federalism case. We may lose, but, you know, we think we’ll win. And
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that’s, that’ll be only the third commandeering case that the Supreme Court
has handled – if – it comes out the right way. That’s two months from now.
MS. BESKE: And that’ll be number, what? Sixty –
MR. OLSON: Sixty – oral argument – sixty-three. Now, a few lawyers have argued more
cases than that.
MS. BESKE: Few more momentous.
MR. OLSON: One of the cases that’s on the court’s docket, there’s three cases that I argued
that are, that are principally cited – there’s a case involving Congress’s
enactment of a statute protecting an interior department decision taking tribal
property into trust, which changes the rights of the Indians to have casinos.
MS. BESKE: Patchak? Upcoming?
MR. OLSON: Yes.
MS. BESKE: Oh! Are you arguing that?
MR. OLSON: No, I wish I was but the case that I argued a couple of years ago, the Bank
Markazi case is a big –
MS. BESKE: I can’t wait for Patchak, because it’s going to tell us what Bank Markazi
means.
MR. OLSON: Yes. And, also, if you read the briefs in that case, it cites and relies on Bank
Markazi one side or the other and then Plaut v. Spendthrift Farms, which is
one that I argued and then there’s a third one, Carcieri, which is Indian tribes
in Rhode Island and property and the 1934 Act, which says something about
Indian tribe recognition – there’s a key word like that. So that’s three cases
that I argued, cited in that case.
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MS. BESKE: That’s really interesting. Yes, I, I’m a total fed courts nerd, and I’m
anxiously awaiting reading the transcript for Patchak. It’s going to be good.
Well, this has been a tremendous honor and joy for me so thank you so very
much.
MR. OLSON: Well, you’ve been great.
MS. BESKE: Thank you.