Theodore B. Olson: Legal eagle

When you’ve pleaded a case before the United States Supreme Court, your memento, your trophy, is a white quill. Some lawyers get one and treasure it forever. Ted Olson has enough to fletch an eagle, and he hopes to add one more -- legalizing same-sex marriage. During the Republican glory years in Washington, Olson was a GOP pillar: at the first meeting of the Federalist Society, on the board of directors of American Spectator magazine, stalwart of the Reagan administration. It was Olson who argued George W. Bush’s case to the Supreme Court in Bush vs. Gore in 2000, securing the presidency. He grew up and was educated in California, elementary school through law school, and lived on the Palos Verdes peninsula before going all Beltway on us. And now he’s back at his old law firm and working with an old adversary, David Boies, who argued Al Gore’s side of the 2000 election. They’ve launched a challenge to Proposition 8 that could find them together again before the high court -- but on the same side, arguing that same-sex marriage should be part of mainstream America. Who’da thunk it?

You went to Berkeley during the Free Speech Movement. How did you fit in?

I was president of the Boalt Hall Republican group. I think there were five of us during the Goldwater-Johnson election of 1964. I don’t think they considered us much of a threat. I think the people in Berkeley thought of us as a sort of quirky novelty.

You’re working at Gibson, Dunn & Crutcher again -- right back where you started after law school.

I joined Gibson, Dunn in Los Angeles in June 1965. After law school, I’ve only had two employers, really -- Gibson, Dunn and two stints in the Department of Justice, one in the early part of the Reagan administration and then as solicitor general in the George W. Bush administration.

Some of the clients you’ve represented include coal and tobacco companies and Vice President Dick Cheney. Put together the dots, and you wouldn’t come up with what you’re doing now on Proposition 8.

I have represented a variety of clients over the years, including Ronald Reagan, the American Bar Assn., the convicted Israeli spy Jonathan Pollard on an appeal. You’re probably right, you probably wouldn’t have drawn a line and said, “Well, it’s logical that he’s going to be representing these people in this case in California.” But we are discriminating unfairly and unreasonably against gay and lesbian individuals, and it’s the wrong thing for us to do.

Chad Griffin, the head of the American Foundation for Legal Rights, the group funding the case, invited you aboard. He once said you were among the last 10 people in the world he’d want to meet. How did the connection happen?

He and Rob and Michele Reiner were having lunch -- or maybe just Rob and Michele -- and they bumped into my former sister-in-law and mentioned that they thought Proposition 8 was going to be upheld in the California Supreme Court, and they were thinking about a legal challenge. She said, “Why don’t you think about Ted Olson?” Chad called me up and talked to me, and then we went from there.

Are you working pro bono?

We’re charging fees, but we’re also contributing a lot of our services.

You and Boies -- you’re a version of Hepburn and Tracy in “Adam’s Rib.”

That’s a nice way to put it. I like that. I thought we needed someone who was a well-recognized lawyer but who would provide balance for my perspective. I wanted to convey the message that this was not Republican or Democrat, conservative or liberal, that this is about human rights and human decency and constitutional law. David was my opponent in Bush v. Gore, but he’s someone for whom I have great respect and affection. We spend some time together once in a while socially. We’ve done some biking in Europe together. He didn’t hesitate for a second.

Does your argument have more purchase with conservatives because you’re the one making it?

I’m hoping that it does. I hope some people will open their eyes to the decency of getting to the point where we allow gay and lesbian individuals to be married and have a happy life.

I expect some of your fan mail has flipped 180 degrees because of this?

I am getting comments from some segments of the society who feel that it’s the wrong thing to do and I’m betraying the conservative cause and things that I’ve stood for in my life. Some of it is quite hostile. But that goes with the territory. On the other hand, I’m hearing from people, including plenty of Republicans, who are very, very grateful. It has been overwhelmingly gratifying to hear from very decent people who are touched by the fact that we’re trying to help.

A woman came up to me in our library in our law firm and said, “You and I haven’t worked together, but I’m a lesbian. My partner and I have two children.” And she burst into tears. I put my arm around her and she put her arms around me. This stands for what we’re trying to accomplish here. It’s a principle, but it’s a principle that deeply touches human beings. If we’re successful, we can help the lives of literally millions of people. And what a great service that would be.

Have you heard from Bush administration people about this? Maybe the president or vice president or Karl Rove?

I wouldn’t want to identify people I’ve heard from, but yes, I have heard from people with whom I served in the administration who have been supportive.

Anybody who hasn’t?

There’ve been a few. But many people who disagree, disagree respectfully.

Some people suspect you’re a double agent, a Trojan horse on this case.

Yes, I’ve heard that too -- I don’t think so much any more, now that we’re having support from the ACLU and from national lesbian groups and so forth. And no one who knows me thinks for a second that I would ever take a case without doing everything I possibly could to win.

Former Republican Congressman Bob Barr left the party, criticizing it for losing some of its true conservative bearings. Do you think along those lines too?

I don’t mean to speak for others. It is a conservative value to respect the relationship that people seek to have with one another, a stable, committed relationship that provides a backbone for our community, for our economy. I think conservatives should value that.