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COURT: Ninth Circuit U.S. Court of Appeals APPOINTED: 1998, by President Clinton BORN: June 6, 1945 LAW SCHOOL: Yale Law School PREVIOUS EXPERIENCE: None By the time Congress finally gave William Fletcher a confirmation hearing after more than 1,000 days of waiting, things had become absurd. U.S. Sen. Jeff Sessions, R-Ala., was complaining about federal judges who tell prison officials how much “gruel” to feed prisoners and asserted that Fletcher “has never been a lawyer.” Attorney General John Ashcroft, then a senator, said the Ninth Circuit U.S. Court of Appeals was “in desperate need of therapy.” Sen. Orrin Hatch, who found himself fending off criticism that Fletcher was too liberal, compared him to Supreme Court Justice Antonin Scalia. And Fletcher’s mother, Ninth Circuit Judge Betty Fletcher, was forced to take senior status. After six years on the bench, Fletcher has shown that he’s no Scalia. He’s one of the court’s new breed of left-leaning judges, and his rulings bear that out. Fletcher’s plurality en banc opinion in Rene v. MGM Grand Hotel, 305 F.3d 1061, upheld a sexual harassment claim by a gay casino worker after his male co-workers crudely teased him about his sexuality. Fletcher also wrote Demore v. Kim, 123 S.Ct. 1708, barring the government from keeping deportable aliens imprisoned without a bail hearing. Though several circuits had gone the same way, Fletcher was reversed by the U.S. Supreme Court. Fletcher leans to the left, but he isn’t as predictable as some of his liberal colleagues. In a law review article, for instance, he has argued that consent decrees — a tool of reform-minded jurists — should be issued by courts only as a last resort. He has also showed a moderate streak in his rulings. Ineffective assistance of counsel claims are red meat for some liberals, but in McClure v. Thompson, 323 F.3d 1233, Fletcher rejected a claim brought against a lawyer who tipped authorities to the location of his client’s two victims. The lawyer thought the pair, ages 14 and 10, might still be alive. They weren’t, and his client was convicted of the murders. “The ethical rule requiring an attorney to act to prevent a crime means that such an action, if based on a reasonable belief, is not inconsistent with the attorney’s ethically prescribed duty of loyalty,” Fletcher wrote. San Francisco solo Edith Benay, who won a case Fletcher wrote upholding a Title VII claim against United Airlines over height and weight restrictions imposed on female flight attendants, said the judge was forceful during oral arguments. “Be very clear on your legal arguments,” Benay said. “He was very precise, he had very specific questions.” Benay said her opponent ran into trouble by glossing over part of the case that didn’t help. “He kept questioning the other side until they had to admit that the argument didn’t apply.” Because of his experience with the confirmation process, you might expect Fletcher to have a unique view on the current debate over the handling of judicial nominees. And he does — just not the one you might expect. “You know, I’m not sure anything’s wrong with [the process],” Fletcher said. “The appointment of judges is political. It’s built-in. It’s political. It’s supposed to be.” The system, Fletcher said, has the important function of weeding out extremists. “To the extent that it’s pushed [courts] toward the middle, that’s a good thing,” Fletcher said. “I think it’s much healthier for our system to have a sort of moderating influence.” As an academic, Fletcher was known for his expertise on civil procedure (on which he co-authored a casebook), as well as his scholarship on the 11th Amendment. On the 11th Amendment, Fletcher took the view — one not so far adopted by the Supreme Court, but one which has received several votes — that the 11th Amendment does not completely bar suits against states, but instead bars diversity jurisdiction as the sole reason for being in federal court. “If that were the case, it would � expose states to [more] suits,” said Jesse Choper, Fletcher’s former colleague at Boalt Hall School of Law. Choper and others say Fletcher was one of the leading voices on 11th Amendment scholarship. Fletcher said he hasn’t put his views on the 11th Amendment into Ninth Circuit case law. On the bench, Fletcher can be an energetic presence. He will sometimes directly challenge a lawyer’s interpretation of case law, and often tips his hand on where he stands. “I try to be very straight with the lawyers so they know what’s going on,” Fletcher said. “If there’s a possibility that the case can be won by the lawyer, I want to give them every chance to persuade me.” Fletcher was a Rhodes scholar, attending Oxford University with former President Bill Clinton. He clerked for former Northern District Judge Stanley Weigel before clerking at the Supreme Court for Justice William Brennan. He went on to teach for more than two decades at Boalt. Though he did work on several pieces of public interest litigation, Fletcher has never practiced law full time. Fletcher is generally a genial presence — he is more likely to debate lawyers than to berate them. But he has little patience for critics of the Ninth Circuit. “If the standard, sort of knee-jerk criticism of the Ninth Circuit is that they’re lawless, it encourages disrespect for the law,” Fletcher said. In particular, he disdains criticism from the bench itself, saying some judges rap the Ninth Circuit as a means of pointing the finger elsewhere. “They’re saying it to make themselves, by comparison, look better,” he said.

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