Judge Betty’s Revenge

Ten years ago, federal judge Betty Fletcher said she would step aside. It was late in the Clinton administration, and Congressional Republicans, who'd long had it in for the left-leaning 9th Circuit Court of Appeals, where Fletcher presides, were refusing to confirm the President's nomination of Fletcher's son William to the same Circuit as his mother. They called it "nepotism."

As a concession, Fletcher, then 76, agreed to take a form of quasi-retirement known as "senior status." There are loose rules governing "senior" judges, who only have to work one-quarter time to receive full pay. Accordingly, most cut back dramatically and spend the extra time at country clubs or with their grandchildren.

"Let's just say Betty Fletcher is having the last laugh," says Nan Aron, president of the Alliance for Justice, a liberal Washington, D.C.–based group that monitors judicial nominations. Fletcher's son was confirmed, but she never did reduce her caseload. Today, the white-haired, Seattle-based jurist—who over the course of her career was the first woman in the city to hold virtually every title she assumed—still hears some 620 cases a year, even as she uses a walker to get around her chambers. And she continues to be a thorn in the side of conservative interests. Last year, for example, she bucked President George W. Bush and the U.S. Navy by authoring the opinion of a three-judge panel upholding restrictions on sonar exercises said to harm marine life. The year before that, she tossed out the Bush administration's proposed fuel-efficiency standards for SUVs and "light trucks" as too weak, writing that environmental laws required the administration to take into account greenhouse-gas emissions.

Though practically unknown in her hometown outside legal circles, Fletcher is a high-powered icon of liberalism, the likes of whom may never again get the nod for a federal bench. She's a holdout from an unprecedented era of left-wing judicial appointments under President Jimmy Carter, after which moderates became the name of the game, at least for Democrats. For all the controversy over Sonia Sotomayor, with whom Fletcher shares some traits, the recently confirmed Supreme Court Justice is strictly middle-of-the-road compared to Fletcher.

"She's always been a ferocious fighter," says 9th Circuit Chief Judge Alex Kozinski, who is 27 years Fletcher's junior. Judge Stephen Reinhardt, the 9th Circuit member who has perhaps earned the greatest enmity among right-wingers, calls Fletcher "one of the most influential" of the 48 judges in the Circuit.

The biggest of the country's 13 federal appeals courts—by both number of judges presiding and geographic area covered—the 9th Circuit incorporates most of the West: nine states in all, including Washington, plus two Pacific island jurisdictions. The court is based in San Francisco but meets in three other cities, including Seattle. When conservatives talk about its rulings, they use words like "crazy," "outrageous," and "political correctness run amok." To defuse the court's power, Congressional Republicans have tried many tactics, including a proposal to split it into two smaller circuits—so far without success.

Fletcher is known for being skeptical of authority and ready for a fight with the highest levels of power. As Todd True—a former Fletcher clerk who now co-manages the Northwest office of Earthjustice, a legal spinoff of the Sierra Club—puts it, she insists time and again that "the government do its homework."

Other court observers view her as a classic "activist" judge. Fletcher seems to believe "there's really no limit to what judges can do," says Jeremy Rosen, a Los Angeles appellate lawyer who belongs to the Federalist Society, an association of conservative and libertarian attorneys that believes in a limited role for judges based on a narrow reading of the law.

With President Obama continuing to promote many of the Bush administration's policies in regard to expanding the powers of the executive branch, the influence of Betty Fletcher could well be critical in the months to come, as cases involving warrantless wiretapping and other legal controversies from the war on terror make their way through the 9th Circuit.

The U.S. Court of Appeals is the last stop before the U.S. Supreme Court. Any case involving federal law, or federal agencies, can be brought to a Circuit Court once a U.S. District Court has ruled. Immigration, discrimination, environmental standards, bankruptcies, Social Security claims—all these and more regularly come before the 9th Circuit, which is also a frequent stop for death-penalty cases. (California has a highly populated death row.) "We get hold of the vast majority of environmental issues," says Kozinski. "We have oceans, mountains, deserts."

The Supreme Court watches the 9th Circuit like a hawk. In the term that ended in June, the Roberts Court reviewed 16 rulings from the 9th Circuit, compared to a handful or fewer from most Circuits. Fifteen of those rulings were reversed at least in part.

Even so, the nation's highest court hears only a tiny fraction of cases from the 9th Circuit, which decided 12,600 cases last year. Consequently, Kozinski says, "most of the time, our rulings stand."

One of the areas in which the 9th Circuit, and Fletcher in particular, has had greatest impact is in enforcement of the National Environmental Policy Act, or NEPA, a law passed by Congress in 1969 that calls for federal agencies to produce environmental impact statements that examine the consequences of proposed actions and what alternatives might exist.