Justice Rives Kistler

Oregon Supreme Court

Justice Rives Kistler won't answer my admittedly Barbara Walters type question: if you could be a movie star, which one would you be?

"I'm happy with the person I am," says Justice Kistler.

The person Justice Kistler is didn't start out to be a lawyer, let alone a member of Oregon's highest court. Instead, this native Californian whose family moved to a small town in North Carolina when he was four years old, started out studying English, first at Williams College and then in the Masters program at the University of North Carolina. To pay for his legal education, he worked as a gardener and a nursery laborer. It was a summer job getting dirt under his fingernails that brought him first to the Pacific Northwest and, when he turned to law, a summer clerkship at Stoel Rives that brought him to Portland.

But Kistler did not immediately return to Oregon. While at Georgetown Law School, he served as an extern to Judge Harry Edwards of the US Court of Appeals for the District of Columbia, though "they didn't call it an extern back then," he notes. Edwards started Kistler on internal memos, but moved him up to drafting opinions. After graduating from Georgetown, he served as a clerk to Charles Clark, the Chief Judge of the Fifth Circuit and for Justice Lewis Powell before returning to Portland and Stoel Rives. Kistler respects all three jurists for whom he worked. "They worked to figure out what the law said and give the right answer in each case."

Although Kistler enjoyed the work of a litigator in private practice, the desire to do appellate work remained, and he moved from Stoel Rives to the Department of Justice (DOJ) Appellate Division in 1987. "My stronger suit was appellate work," he said, "and the advantage to working at DOJ is that you're working in the public interest." When Kistler was appointed to the Court of Appeals in 1999 by Governor Kitzhaber, it drew no more attention than any other appointment, even though Kistler is openly gay. Nor did his elevation by Governor Kulongoski to the Supreme Court in August 2003. But in March 2004, the Multnomah County Commission triggered a raging debate when it began issuing marriage licenses to same sex couples. Kistler, who needed to run a retention election in the May 2004 primary, found himself a potential proxy for the culture wars in Oregon and faced an openly conservative challenger to retain his seat on the court.

Kistler did not believe that was what the election was about. As he told Newsweek magazine, "I didn't want to be known as the gay judge. I would hope to be known as the good judge." It is important to Kistler that he be evaluated on his merits as a jurist. So why is it important - or unimportant - that he is gay? To Kistler, it's less about who he is and more about who the entire court is. "Your background is important to help you see and understand things about the nature of a case. When justices share their perspectives, it makes the court richer. There are many types of diversity. Trial lawyers and defense counsel. Gender diversity. Geographic diversity. Each is a piece of the puzzle."

The pieces of the puzzle are what helps the court function, a function that is not always well understood by non-lawyers. Kistler did not see his role as making the decision assigned to other branches of government, but as ensuring that those decisions have been done within the authority the decision-maker has been granted. As Kistler noted, "In a criminal case, a jury may come to a different decision than I would. A trial judge might use his discretion differently and reach a result I would not reach. A workers' compensation administrative law judge might make a fact finding I would not make. But I'm not the policy maker, and those are not things we judges can generally change." Nor did Kistler see that function change much when he transitioned from the Court of Appeals to the Supreme Court. He sees the two benches "have more similarities than differences, with judges who care deeply about what they're doing and are careful about what they're writing." The main differences are that the Supreme Court sees "more open, unresolved cases" and that with all the decisions made by the entire seven-person court rather than the three-judge panels utilized by the Court of Appeals, it takes "more work to bring together a majority - perhaps by design."

Originally authored by Marc Abrams and printed in the November 2004 Multnomah Lawyer
Updated for the Internet in 2007