Family Ties Hold Up Judicial Nomination

When President Clinton nominated his old friend William A. Fletcher for a coveted position on the U.S. 9th Circuit Court of Appeals a year ago this month, he set the stage for the first mother-son combination on the federal bench.

Both Fletcher, a well-respected UC Berkeley law professor, and his mother, Betty B. Fletcher, a 9th Circuit judge since 1979, expressed delight at the prospect of serving together. “There are lots of sons, but not very many mothers,” she quipped at the time.

But that relationship has since turned into his greatest liability, and Fletcher’s prospects for getting the judgeship before this year’s presidential election now appear bleak.

U.S. Sen. Orrin G. Hatch (R-Utah), chairman of the Senate Judiciary Committee, has invoked an obscure anti-nepotism law to block Fletcher’s nomination. Hatch contends that the 1887 statute prohibits the 50-year-old scholar from serving on the court at the same time as his mother, a Jimmy Carter appointee considered one of the circuit’s most liberal jurists.

The statute, never before used to block a judicial nomination, says in part, “No person shall be appointed to or employed in any office or duty in any court who is related by” blood or marriage “within the degree of first cousin to any justice or judge of such court.”

Walter Dellinger of the White House’s Office of Legal Counsel maintains that the law was designed to prevent judges from securing jobs for relatives, not to prohibit relatives from serving on a court.

Indeed, tat least five sets of relatives have served together on federal courts since the statute was enacted. They include Justice David J. Brewer, who was appointed to the U.S. Supreme Court in 1890 even as his uncle, Justice Stephen J. Field, was serving on the high court, and W. Matthew Byrne Jr., appointed to the U.S. District Court in Los Angeles in 1971 at the same time his father was a senior judge on that court.

In 1992, the Senate confirmed Morris Arnold, a appointee of President George Bush, to the U.S. 8th Circuit Court of Appeals, based in St. Louis, even though his brother Richard Arnold already was serving on that court. The statute was not raised during Arnold’s confirmation hearing, when the Judiciary Committee had a Democratic majority. Hatch was on the committee then, but he says he was unaware of the statute at the time.

No one raised the obscure law until seven months after Fletcher was nominated.

Fletcher’s supporters maintain that Hatch is stretching the law to keep the moderately liberal professor off the 9th Circuit or to force his more liberal mother to retire as a quid pro quo for her son’s confirmation. Sources close to the Fletchers say she has no intention of accepting such a deal.

Hatch’s spokeswoman, Jeanne Lopatto, said she was unaware of Hatch suggesting that the senior Fletcher would have to step down to make way for her son.

Lopatto said Hatch believes that the plain meaning of the statute shows that it applies to Fletcher and that the White House’s interpretation is strained.

A White House source, speaking on condition of anonymity, said the Clinton administration is still hopeful Fletcher can be confirmed this year, but it has been five months since his confirmation hearing and prospects are looking increasingly doubtful. The Judiciary Committee has never voted on him.

A Navy veteran, William A. Fletcher has been Clinton’s friend since their Rhodes scholar days at Oxford. He co-chaired the Northern California Clinton for President Committee in 1992.

After graduating from Yale Law School in 1975, Fletcher clerked for a federal trial judge in San Francisco and for Supreme Court Justice William Brennan. He has been a law professor since then.

His nomination last April quickly garnered support from prominent legal academics of varied ideological stripe. Among those writing letters to the Judiciary Committee in praise of his work was University of Texas law professor Charles Alan Wright, one of the nation’s leading conservative constitutional scholars. Wright represented President Nixon in his efforts to avoid turning over the White House tapes sought by special prosecutor Leon Jaworski during the Watergate investigation.

A month after his nomination, he was praised in the neoliberal magazine The New Republic as “the most impressive scholar on federal jurisdiction in the country.”

The American Bar Assn. screening committee gave Fletcher its highest rating--very well qualified. Richard M. Macias, the Los Angeles attorney who headed the committee, said he “did not hear one negative comment” in a hundred interviews.

Consequently, legal analysts speculated initially that as a moderate liberal whose academic writings were not controversial, Fletcher would not have a difficult time being confirmed.

But two weeks before Fletcher’s confirmation hearing, Tom Jipping of the conservative Free Congress Foundation wrote in an opinion piece in the Washington Times that Fletcher should be barred because of the 1887 statute.

The White House countered with Dellinger’s memo maintaining that the statute does not apply to presidential appointments.

The memo also cited relatives who had served together on a federal court. For example, Dellinger noted, in 1914, just three years after the 1887 statute was amended, President Woodrow Wilson appointed Augustus Hand to be a federal district judge in Manhattan even though his first cousin Learned Hand had served on that bench since 1909.

In 1927, President Calvin Coolidge elevated Augustus Hand to the U.S. 2nd Circuit Court of Appeals, even though his cousin Learned had been appointed to that court three years earlier.

Just before Fletcher’s hearing, Stanford University law professor Gerald Gunther sent a letter to Hatch saying he found Dellinger’s memo to be “a very persuasive, even compelling document.” Gunther said he based his opinion in part on research for his 1994 biography of Judge Learned Hand.

“The statute, it seems clear to me, was designed to bar the influence of nepotism when judges appoint court personnel such as clerks and deputy clerks. It would be a distortion of the thrust of the law were it to cast legal doubt upon a presidential nomination of a judge,” Gunther wrote.

After Hatch raised the nepotism issue at Fletcher’s confirmation hearing, Sen. Dianne Feinstein (D-Calif.), who had presented Fletcher to the Judiciary Committee, emphasized that the statute had “never been applied in this manner in the history of the United States.” She asserted that in view of this, it would be unfair to apply the rule after someone had been nominated and that any change ought to be for future nominees rather than retroactively.

But Hatch said he thought the clear language of the statute made it applicable to Fletcher and the issue “really bothers me.”

Hatch said it is particularly important to apply the statute to appeals court judges because of the potential of “two very close family members” serving together and making “monumental decisions.”

At the hearing, and in a brief conversation with The Times, Fletcher declined comment on whether the statute applied to him. He told the committee he felt “it inappropriate for me to argue the case” because of his personal interest in the outcome.

Asked by Sen. Fred Thompson (R-Tenn.) about his mother’s statement to a reporter that the statute was “not intended to cover this situation,” Fletcher drew laughter when he responded, “Sen. Thompson, I think this demonstrates what I said earlier: I have no control over my mother.”

Fletcher said if he was confirmed he anticipated he would “have discussions with my mother that are on a par with discussions I might have with any other member” of the 9th Circuit.

“I would accord her no greater deference, and I would hope that she would accord me no greater deference than she now gives or I would give to any other member of that court.”