Playing Games With an Old Law : Phony issue of nepotism is being used to block judgeship nominee

We know that party politics plays a role in judicial appointments. But the Senate Judiciary Committee’s manhandling of William A. Fletcher, nominated to the U.S. Circuit Court of Appeals, is a shameful example of partisan games.

Would that all sitting members of the federal bench had Fletcher’s credentials. The 50-year-old nominee is a UC Berkeley law professor who received the American Bar Assn.’s highest rating--very well qualified. Beyond this, Fletcher’s nomination has drawn support from prominent legal scholars of varied ideological stripes. He is a Yale Law School graduate and a former Rhodes scholar.

The distinguished members of the Senate Judiciary Committee, having pushed through many far lesser judicial lights, should have rushed to confirm an individual of such obvious merit. But Fletcher’s nomination has languished for more than a year while chairman Orrin Hatch (R-Utah) has devised creative ways to postpone a confirmation vote. His goal, of course, is to delay through the November election, knowing that if President Clinton loses, Fletcher’s nomination dies.

Hatch is close to exceeding his own expectations. He unearthed an 1887 anti-nepotism statute--never before used to block a judicial appointment--and contends it bars Fletcher from serving on the court at the same time as his mother, Betty B. Fletcher, who is considered to be among the 9th Circuit’s more liberal judges. Most experts say this statute was drafted to prevent judges from securing jobs for relatives; historically, however, the law was never invoked to block the confirmation of five men to the federal bench at a time when relatives were already sitting as judges there.

Nevertheless, Hatch has persisted. In recent weeks, he brokered a deal whereby Betty Fletcher, 73, agreed to take senior status--with a reduced workload--thereby opening another judicial vacancy. In return, the committee would vote on her son’s nomination. That vote was to have been Thursday but is now delayed until next week because some of Hatch’s Republican colleagues feign concern that Betty Fletcher’s offer to take senior status would not eliminate the nepotism issue. Is her immediate resignation now the goal?

Nepotism is a phony issue here. Worse, it is being used in an assault on judicial independence that is chilling in its brazenness.