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Senior judges keep 9th Circuit courthouses open

As federal caseloads soar and judgeships go unfilled because of a recalcitrant Congress, some retired judges continue to handle cases. Many are in their 80s.

March 14, 2011|By Carol J. Williams, Los Angeles Times
  • Judge Betty Fletcher, who will turn 88 this month, still works full time in the 9th Circuit. I think I bring a set of values and viewpoints to the court, and there is little enough of that now, she says.
Judge Betty Fletcher, who will turn 88 this month, still works full time… (Liz O. Baylen, Los Angeles…)

The pile of unread magazines and novels on her bedside table is Judge Betty Fletcher's only regret in letting retirement elude her.

Fletcher, who turns 88 this month and relies on a walker to navigate airports and courthouse corridors, retired a dozen years ago yet still works full time, on what is known as senior status, for the U.S. 9th Circuit Court of Appeals. She travels throughout the court's nine-state region for hearings and spends seven days a week poring over foot-high stacks of written filings.

As federal courts stagger under the weight of mounting caseloads and vacant judgeships go unfilled for years, senior judges like Fletcher have come to the rescue, especially in the 9th Circuit, where they shoulder a third of the legal load.

"It's kind of a double whammy," Fletcher said of the courts that have had no new judgeships added in 21 years and that have declining numbers of active judges because of partisan posturing in Congress. Nearly 11% of the nation's 875 lifetime positions are empty.

Senior judges, working overtime to keep the wheels of justice turning, earn the gratitude of their overwhelmed colleagues. But they do not earn a penny more for continuing to work, many of them almost full time, than they would if they were to hang up their robes and head for the golf course.

"I'm not a gardener and I'm not a housekeeper," Fletcher says of her lack of interest in more traditional retirement pursuits. "The only thing I would do is more reading for pleasure if I had the time."

The diminutive white-haired Washington state native says she loves the work and wants to help in this time of crisis. Fletcher also wants to keep sounding the voice that led President Carter to make her a federal judge 32 years ago.

"I think I bring a set of values and viewpoints to the court, and there is little enough of that now," she says, alluding to the ideological divide that has emerged on the reputedly liberal court with the conservative appointments of the last administration. "The Carter appointees are pretty much diminished."

Another 9th Circuit senior working harder than he has to is Judge John T. Noonan, appointed to the court by President Reagan in 1985. But he dismisses the notion that he stays active to defend the ground gained in recent years by appointees of Republican presidents.

"I've always thought of myself as fairly much in the middle and I think the court has a spectrum of judges now," said Noonan, 84. He said he doesn't feel particularly burdened carrying about 75% of an active judge's caseload as he still finds time to write books, including a volume on Shakespeare's spiritual sonnets coming out in May.

Judge Dorothy W. Nelson, another Carter appointee who took senior status 16 years ago, was back on the bench at the Pasadena courthouse on Wednesday, less than two weeks after her husband of 60 years died. She has carried a 75% caseload throughout her supposed retirement and has spent "the other 75% of my time" at the Western Justice Center she founded for mediation and conflict prevention.

"I feel a responsibility to the litigants," said Nelson, 82. "The courts are not for the judges, and they are not for the lawyers. They are for the people who have real grievances that need to be heard."

All but three of the 9th Circuit's 19 senior judges heard cases over the last year. Their collective caseload accounted for 33% of the appeals court's work in the year that ended in September, said Molly Dwyer, the court's clerk.

"We'd be sunk without them," Dwyer said of the seniors. "I often joke that I'm shipping out vitamins and giving out orange juice along with the assignments."

Even with the senior reinforcements, active judges on the 9th Circuit still sit on nearly twice the number of panels as those on the other 11 federal appeals courts, according to statistics kept by the Administrative Office of the U.S. Courts.

Nationwide, seniors handle 21% of the federal judiciary's work, said David Sellers, an assistant director of the federal court agency.

The deaths of two 9th Circuit seniors in February and the resignation of another at the start of this year sent a reminder to the court that relying on the largesse of retirees isn't a long-term strategy for dealing with a swollen caseload.

Judge Cynthia Holcomb Hall, who died of cancer at age 82, and Judge David R. Thompson, who died at 80 after suddenly falling ill, heard cases until shortly before they died and left several pending. Judge Thomas G. Nelson, 74, an appointee of the first President Bush who had been on senior status for seven years, resigned from the court in January because of ill health, said Dwyer.

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