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California and the West

Berkeley Professor Wins Confirmation to 9th Circuit Court

October 09, 1998|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

After a 3 1/2-year struggle, UC Berkeley law professor William A. Fletcher won confirmation Thursday to a seat on the U.S. 9th Circuit Court of Appeals by a relatively close 57-41 vote in the U.S. Senate.

The 41 no votes are the biggest block of negative votes received by a successful federal judicial nominee since Clarence Thomas was confirmed to the Supreme Court by a 52-48 vote in 1991 after a bitter battle.

The large negative vote reflects the unusual intensity of a confirmation fight over a mild-mannered, 52-year-old professor. Fletcher, a Rhodes Scholar and law school classmate of President Clinton, is not known for controversial legal writings.

The long-running clash seemed to stem from a combination of elements, prime among them that Fletcher is the son of Betty B. Fletcher, one of the most liberal judges on the 9th Circuit, and that he was being considered for a seat on a court considered the most liberal in the nation.

All 41 votes against Fletcher were cast by Republicans. He picked up 14 Republicans to go along with the votes of 43 Democrats.

The confirmation appears to end a stalemate that has blocked the filling of several vacancies among the judges who hear appeals from California and eight other Western states.

Despite the close vote, Fletcher said he was delighted and "deeply gratified by the president's faith in me and by the Senate's vote. I will do my best to live up to the responsibilities entrusted in me." Fletcher said he hopes to start his judicial duties in February after completing the fall term at Boalt Hall, UC Berkeley's law school.

Fletcher's confirmation came as a result of two deals, one arranged by Sen. Orrin Hatch (R-Utah), the chairman of the Judiciary Committee, and the other between the White House and Sen. Slade Gorton (R-Wash.).

Hatch brokered a deal whereby Fletcher's mother will take senior status on the 9th Circuit, meaning that she will have a reduced caseload and more importantly will no longer be eligible to participate in en banc panels that reconsider some of the circuit's most controversial cases.

Gorton, meanwhile, persuaded President Clinton to nominate Barbara Durham, the conservative chief justice of Washington, to a 9th Circuit seat in return for Gorton dropping his opposition to Fletcher, according to Senate and legal sources.

The sources said Thursday that Clinton is expected to nominate Durham after the Senate returns from its fall recess in January. That nomination is likely to set off another battle, because liberal groups consider Durham, 55, unacceptable.

In July, after reports of the Durham deal first surfaced, the Alliance for Justice, a coalition of liberal organizations that focuses on federal court matters, issued a critical analysis of Durham's record on the bench, saying it was "at odds with Clinton's vision for the federal judiciary."

On Thursday, Nan Aron, the alliance's president, said that if Clinton does nominate Durham, "we will do everything we can to defeat the nomination."

A Gorton aide said it was his understanding that the Durham deal was on track, stressing that "the senator has had scores of conversations with the White House about [Durham's] nomination."

Sen. Dianne Feinstein (D-Calif.), who led the fight for Fletcher's confirmation, predicted that he would make a great judge, describing him as one of the nation's "foremost experts on federal courts" and noting that he had received the highest possible rating from the American Bar Assn.'s screening committee.

Sen. Patrick Leahy (D-Vt.), who also played a key role in support of Fletcher, said he could not remember another nominee who had been kept waiting 41 months.

The debate was a further sign of possible trouble for two other nominees to the 28-member 9th Circuit--U.S. District Judge Richard Paez of Los Angeles, a former legal aid lawyer whose nomination has been pending more than two years, and Marsha Berzon, a prominent San Francisco labor lawyer.

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