Chief Judge KOZINSKI, disagreeing with everyone….
— The introductory line to Chief Judge Alex Kozinski’s recent separate opinion in Garfias-Rodriguez v. Holder (9th Cir. Oct. 19, 2012). As noted by the WSJ Law Blog, the other opinions of the highly fragmented en banc court had more traditional designations, like “concurrence” and “dissent.” Howard Bashman was amused.
(Additional news out of the Ninth Circuit, of a serious and sad nature, after the jump.)
As we mentioned earlier today on our Twitter feed, one of the Ninth Circuit’s most prominent liberal jurists, Judge Betty Binns Fletcher, passed away last night at the age of 89. Although she was small and soft-spoken in person (I met her when I clerked on the Ninth), Judge Fletcher was a force to be reckoned with, in her judicial opinions and in en banc battles.
Here’s more about Judge Fletcher, from the Associated Press:
Fletcher was a liberal stalwart of the 9th Circuit who was known for rulings upholding affirmative action, overturning death penalty cases and protecting endangered whales from sonar tests by the U.S. Navy.
She was also known for getting back at Republicans in the U.S. Senate who delayed the appointment of her son, William A. Fletcher, to the 9th Circuit. To ease his path, she offered to take senior status on the bench, freeing up her seat for someone acceptable to then-Republican U.S. Sen. Slade Gorton of Washington.
Instead of actually retiring, Fletcher continued carrying a full load of cases.
UPDATE (10/24/2012, 10:15 AM): There’s a more accurate version of what happened in this updated version of the AP obituary:
In 1996, Republican Utah Sen. Orrin Hatch insisted that because of an obscure, 19th century anti-nepotism law, Betty Fletcher needed to take senior, or semi-retired, status before her son could join the court. That would free up Fletcher’s seat to be filled with an appointee acceptable to then Republican U.S. Sen. Slade Gorton of Washington. Fletcher agreed — but instead of slowing down as a semi-retired judge, she maintained a full caseload.
Judge Fletcher worked tirelessly for years after taking senior status. Just last year, she was highlighted in a Los Angeles Times article about the important role played by senior judges in handling the Ninth Circuit’s giant caseload:
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.”
Well, I don’t know about that. Judge Fletcher remained a vigorous participant in the work of the court, despite having senior status. “The thought that taking senior status would mute her voice or her ideas was a huge miscalculation,” said Jenny Durkan, U.S. Attorney for Seattle. And the number of active-status Carter appointees — two, Judge Pregerson and Judge Reinhardt — equals the number of active Reagan appointees — two, Chief Judge Kozinski and Judge O’Scannlain (my former boss). That’s the case even though Reagan’s presidency came after Carter’s and lasted twice as long.
Regardless of your political or jurisprudential views, we can all agree that Judge Fletcher was a dedicated and tireless public servant who made major contributions to the Ninth Circuit. The court won’t be the same without her. May she rest in peace.
P.S. If you clerked on the Ninth and feel nostalgia for your clerking days, check out my new fiction project, Supreme Ambitions.
Liberal US Appeals Judge Betty Fletcher Dies at 89 [Associated Press via ABC News]
Senior judges keep 9th Circuit courthouses open [Los Angeles Times]
Garfias-Rodriguez v. Holder [U.S. Court of Appeals for the Ninth Circuit]
“Chief Judge KOZINSKI, disagreeing with everyone” [How Appealing]
A New Type of Opinion Is Christened in the Ninth Circuit [WSJ Law Blog]