News & Politics

Legally Speaking: Theodore Olson

Former US solicitor general talks NFL lockout and same-sex marriage

Photo courtesy of Gibson Dunn.

Theodore Olson—legendary Supreme Court lawyer and former US solicitor general under President George W. Bush—is at the center of two headline-making cases. He made history in 2009 when he joined with Democratic lawyer David Boies to form a bipartisan legal team challenging California’s same-sex-marriage ban, Proposition 8—a matter that’s ongoing. More recently, Olson has taken on the appellate-court representation of NFL players in their class-action against the league. He found time to talk about both cases with And on a more personal level, Olson—whose wife, was on board the hijacked plane that struck the Pentagon on September 11, 2001—spoke about the death of Osama bin Laden.I think most NFL fans want to know how long the players’ lockout is going to drag on. Do you have any predictions? [Editor’s note: On May 16, after this interview was completed, the 8th Circuit decided to extend the lockout until June. The court will hear oral arguments about the lockout on June 3.]
Right now we have a hearing in the 8th Circuit Court of Appeals on June 3. It depends upon how fast the court acts, because the district court granted an injunction against the lockout. Then after [the hearing on June 3], it’s a matter of how fast the court rules. But some of the issues this particular court, the 8th Circuit, has had before, and the district court judge did an extraordinarily thorough job. She wrote a very, very exhaustive opinion, and the issues have been well briefed, so we hope it won’t take too long. We all want to go to the games.

Are you personally an NFL fan?
Yes, of course. Who isn’t? I’m like everybody else in Washington who are fans of the Washington football team. It’s not just the particular team you root for, but everybody wants to spend some time on Sunday watching the games in the afternoon. These are the finest athletes in the world, I think.

The proponents of Prop 8 just filed a motion about Judge Vaughn Walker, claiming he never should have heard the case given his recent acknowledgement that he’s been in a long-term relationship with another man. What is your response to this?
Well, in the first place, the proponents knew about the judge’s sexual orientation because it was reported in a lot of the papers, and they never made any objection until now, which is six months after the judge rendered a 134-page opinion. Now they want to raise it. Number two, the judge’s sexual orientation should be irrelevant to this, just as a judge’s race or ethnicity or religion [should be]. I mean, can you imagine disqualifying Thurgood Marshall in cases involving racial discrimination, or Ruth Bader Ginsburg in cases involving gender discrimination? Or Catholics—there are six Catholics on the Supreme Court. Should they be disqualified from handling cases involving religion, or the Catholic Church, or the death penalty, or abortion? The answer is no. Walker is a distinguished graduate of Stanford Law School. He was on the law review. He was appointed by a Republican President. He was a partner in a major law firm in San Francisco. He’s been on the court for 20 to 25 years, and he was chief judge of the United States District Court for the Northern District of California. He’s immensely qualified. And if you take sexual orientation into consideration, why should a heterosexual handle the case? Because our opponents are arguing that same-sex marriage harms heterosexuals, so a heterosexual judge theoretically shouldn’t have been able to handle the case, either. Personally, I think it’s a bit insulting to suggest that the judge couldn’t render a decision fair and square. Anybody who reads his 134-page opinion, his conclusions, and his analysis of the evidence—[knows they] should be judged on the merit, not on extraneous things. 

Do you think you’ll be involved in helping any of the 2012 Republican presidential candidates?
I’d say it’s probably 50-50. If I’m asked, I’ll probably be hard-pressed not to go with the temptation to be involved because I’ve always been interested.

Given that you’ve become such a public advocate in favor of same-sex marriage, will it be difficult for you to support a socially conservative Republican candidate who is opposed to gay marriage?
I’m certainly going to want to ask the question. It’s definitely going to be an issue in my decision-making, because I do feel strongly about the rights of individuals not to be subject to discrimination on the basis of their sexual orientation. I noted in the Washington Post there’s a poll that came out that showed a tremendous swing in public opinion in the state of Virginia in favor of same-sex marriage. And if you divide the poll among age groups, the groups under 30 are overwhelmingly supportive, the groups between 30 and 50 are more evenly balanced, and the older groups are more hostile or hesitant about the idea. So as our population gets older, more and more people are supportive of this, and the Republicans better figure that out. It should be not just a political issue—which I hope the Republicans do figure out—but a human-rights issue. And I hope more Republicans, conservatives, and libertarians understand that it’s time to end discrimination on that basis and to allow people to marry the person they love of the same sex. 

A more personal question—you lost your wife on September 11. What did it mean to you when news broke about the death of Osama bin Laden?
Well, the idea that there would ever be closure is silly. I don’t think that you could ever talk to anyone who lost a loved one, a friend, a partner, or a coworker on that day who would ever say there was closure—as if you could now put it behind you. You could never do that. I did feel a tremendous sense of relief. We can never rest easy as long as there is terrorism out there, and we can never forget that day, and the viciousness of it and the savagery of it. But to have that source of pure evil, of pure malignancy, who not only was a symbol of hate and terrorism but also a recruiter and a leader and a planner of terrorism—he was never going to stop doing that—removed from the earth is like having Hitler removed from the earth. It is something that had to be done. I was very, very glad that it was done, and I must say, I give great credit to President Barack Obama for having the courage.

You served President George W. Bush, and you were involved in changing surveillance and other laws to lessen restrictions on intelligence-gathering. Do you believe this helped us find bin Laden?
Well, I don’t know. But I do know that the laws that we had, that were in effect in 2001, were obsolete. They didn’t allow us to track telephone communications. Cell phones were sort of new. That law went back to 1978. We had tools to work with money-launderers, or organized crime or drug smugglers and things like that, that weren’t available for terrorists. It was crazy. Those laws had to be changed, and those tools had to be updated. And most of them involved court approval, so civil liberties are protected by the changes in the law. And from what I understand, many of the changes did facilitate the gathering of the little pieces that had to be put together to find where this man was hiding.

So you would disagree that any of these changes were at the cost of civil liberties?
One of our greatest civil libe
rties—if not the greatest—is to be able to live and to live without being in terror when one gets on an airplane, or sitting—as we are—in a restaurant on a busy street where someone could drive up in a car and blow up a bomb or walk into the restaurant and [explode] a suicide bomb. I mean, it is a civil liberty to live and work in peace, for children to go to school, for people to go to weddings and their synagogue, and things like that. So yeah, we have to protect those basic, fundamental civil liberties. We have to take reasonable steps to protect ourselves, and I think by and large the steps we’ve taken have been reasonable.

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Marisa M. Kashino joined Washingtonian in 2009 and was a senior editor until 2022.