Ninth Circuit Judge Betty Fletcher, 1923-2012

Described as soft-spoken but tough as steel, the judge, who died Monday, was an influential member of the court's liberal wing for decades.

Scott Graham

2012-10-23 06:38:39 PM

SAN FRANCISCO — Judge Betty Fletcher, a pioneering woman on the U.S. Court of Appeals for the Ninth Circuit and a tenacious member of its liberal wing, died Monday evening in Seattle. She was 89.

Fletcher was only the third woman to join the Ninth Circuit when she was confirmed by the Senate in 1979. A prolific author of published opinions, she was a proponent of environmental protection and civil rights and one the court's most staunch opponents of the death penalty.

Although she gave up active status in 1996 so that her son, William, could join the court, Fletcher remained fully engaged with the work of the court, ruling in 400 cases last year and hearing a calendar as recently as last week.

Fletcher was one of 15 appointees of President Jimmy Carter who collectively shifted the court's judicial philosophy to the left. She did not make headlines as often as colleagues like Judge Stephen Reinhardt, but may have been no less an influential leader.

"If you looked at dissents from panel decisions that were eventually overturned en banc, I'll bet you would find they both had an impressive success rate," said University of Pittsburgh law professor Arthur Hellman. "They reinforced each other, as did many others."

Said fellow Carter appointee Judge Harry Pregerson: "She was soft-spoken, but she was tough as steel. She never backed down."

"Betty Fletcher was the best," Reinhardt said in a written statement. "We won't get another judge like her in the foreseeable future, if ever — on this circuit or any other."

Hellman points to Fletcher's en banc opinion in Sessoms v. Runnels, issued just two months ago, as an example of her powers of persuasion. A three-judge panel upheld Tio Sessoms' felony murder conviction in 2011 despite his claim that police had violated his Miranda rights. Fletcher dissented, writing, "The majority's holding creates particular injustice for the poor and less educated, who often regard law enforcement with uncertainty or timidity but for whom counsel and representation are most critical."

The court subsequently voted to take the case en banc, presumably at Fletcher's urging, with Fletcher ultimately writing a 6-5 decision granting Sessoms' habeas corpus petition.

A 1996 Recorder survey found that Fletcher issued the fifth most published opinions of any member of the court during the preceding six years. "She was one of the hardest working judges on the court, active or senior, and was hearing cases right up until being hospitalized last week," Chief Judge Alex Kozinski said in a written statement.

Fletcher, who was born Tacoma, came from a family of lawyers. Her father and late husband were attorneys, as are two of her children, Ninth Circuit Judge William Fletcher and UCLA law professor emerita Susan Fletcher French.

Betty Fletcher was already a mother of four when she graduated first in her class from University of Washington School of Law in 1956 at age 33. She worked some 20 years at Preston, Thorgrimson, Ellis, Holman & Fletcher, which later merged into K&L Gates. Among her clients were Supreme Court Justice William Douglas and Sen. Warren Magnuson, according to Pregerson. She was the first woman at a major Seattle law firm and the first woman president of the King County Bar Association in Seattle.

Fletcher told Seattle Weekly in a 2009 article that Johnson v. Transportation Agency, an early case of hers upholding affirmative action for women, was one of the cases she was most proud of. The U.S. Supreme Court affirmed that decision in 1987.

But the judge was sometimes at odds with the high court over death penalty cases, most notably the case of Thomas Thompson. Two days before Thompson's scheduled execution, the court issued an en banc decision authored by Fletcher recalling the court's mandate. "We are acting not upon the basis of Thompson's petition, but upon the basis of our sua sponte determination to remedy our own errors," Fletcher wrote. The U.S. Supreme Court reversed in a scathing opinion, and Thompson was executed the following year.

"We all know what the law is," Fletcher told Seattle Weekly, speaking about the death penalty generally. "That doesn't make it morally right."

When Bill Clinton was elected president in 1992, William Fletcher, then a Boalt Hall professor who had co-chaired Clinton's election campaign in Northern California, was immediately seen as a likely appointee to the Ninth Circuit. But Republican senators blocked his confirmation, citing an obscure anti-nepotism statute that they said should prevent family members from serving on the same court (even though brothers had previously served on the same appellate courts). With Clinton's first term winding down in 1996, Betty Fletcher agreed to take senior status if her son was confirmed.

"In a way, it was a tribute to her power as a judge," Hellman said. "If she'd not been an effective advocate for her positions, I don't think the Republican senators of that era would have cared that much."

"Mom was a wonderful judge," William Fletcher said in a written statement. She was "always caring in her concern for fairness, and always careful in her legal analysis. She spoke truth to power, and just as important she spoke truth in exercising power."

Other survivors include daughter Kathy Fletcher of Seattle; son Paul Fletcher; also of Seattle, eight grandchildren and three great-grandchildren.

A memorial is scheduled for Nov. 10 at noon in Benaroya Hall, 200 University Street, Seattle.