[Congressional Record Volume 142, Number 140 (Wednesday, October 2, 1996)]
[Senate]
[Pages S12159-S12161]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      PENDING JUDICIAL NOMINATIONS

  Mrs. FEINSTEIN. Mr. President, I want to address my remarks today to 
pending judicial nominations. It is my understanding that there may be 
some agreement to bring forward some additional judicial appointments 
before this Senate adjourns. I certainly hope that is the case. I want 
to point out five specific judges, relating to California, some of 
which have been before this body for a substantial period of time, and 
the importance of those nominations.
  We essentially have two appointments to the Ninth Circuit Court of 
Appeals which could be filled by this Senate in the next day. The first 
is William Fletcher. He is a Harvard College graduate. He is a Rhodes 
Scholar. He is a Navy officer. He is a graduate of Yale Law School. He 
has been a law clerk for Justice Brennan, and a law professor at the 
University of California at Berkeley since 1977. He actually received 
the university's distinguished teaching award in 1993.
  I was sitting on the Judiciary Committee when he came up for review. 
He passed that committee with a favorable recommendation by a vote of 
12 to 6. At that time there was some concern about his mother's service 
on the ninth circuit. An overture was made, as to whether his mother 
would be willing to either retire or take senior status. She has since 
said that she would be willing to take senior status to avoid any tinge 
of nepotism, should he be appointed to the Ninth Circuit Court of 
Appeals.
  I might say this. The American Bar Association has unanimously rated 
Professor Fletcher, ``well qualified.'' That is its highest rating. His 
academic colleagues have stated to us that he is fair minded and 
politically moderate.
  Mr. President, I ask unanimous consent that a number of letters 
regarding Professor Fletcher's nomination be printed in the Record at 
the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mrs. FEINSTEIN. It is very hard to understand why he has been 
lingering on the Executive Calendar, essentially since May 16, without 
our having an opportunity to discuss his candidacy on the floor of the 
U.S. Senate. I hope we would have that opportunity. I think it is 
important that we do so.
  Another candidate who has been waiting before this body since June 
27, when she passed the Judiciary Committee on a unanimous vote, is 
Margaret Morrow, who has been nominated for District Judge in the 
Central District of California, in Los Angeles. She is a graduate of 
Bryn Mawr magna cum laude. She is a graduate of Harvard Law School, cum 
laude. She is a partner in a prominent Los Angeles law firm.
  She has won the Bernard E. Witkin Amicus Curiae Award from the 
California Judicial Council in 1995. She has received the Ernestine 
Stalhut Award for the most distinguished woman lawyer in Los Angeles. 
She has received the President's award from the California Association 
of Court-Appointed Special Advocates. She has received the Pro Bono 
Advocacy Award from the Western Center on Law and Poverty. She has 
received a number of special awards.
  She is the first woman president of the California Bar Association 
and served as president of the Los Angeles Bar Association. She was 
found also to be ``well qualified.''

[[Page S12160]]

  Her nomination has been languishing in this body since June 27. I 
hope that in any arrangement that might be put forward, both Margaret 
Morrow as well as William Fletcher would be part of that arrangement. 
This is extraordinarily important to me.
  Another Presidential nominee to the Ninth Circuit Court of Appeals is 
Richard Paez. Richard Paez has had a hearing on July 31. Action in the 
Judiciary Committee has not yet been taken. He was nominated by the 
President on January 25.
  Judge Paez is a graduate of Brigham Young University and the 
University of California Law School. He has had a distinguished career 
in Los Angeles, where he served on the Los Angeles Municipal Court from 
1981 to 1994. He was chairman of the Los Angeles County Municipal 
Judges Association in 1990. The Judiciary Committee held a hearing and 
this Senate did appoint him to the District Court for the Central 
District of California in 1994, so he has had a hearing by the 
Judiciary Committee. He has been approved by them, and he has been 
approved by this body for the district court.

  Now the President has seen fit to recommend him for appointment to 
the Ninth Circuit Court of Appeals. I hope that action might be taken 
on his case prior to the end of this session.
  There is one hardship case that I would like to raise at this time. 
The national average caseload for all cases is 448 cases per judge. The 
national average for criminal cases is 51 cases per judge. San Diego 
has a major caseload problem. In the Southern District of California, 
in San Diego, the average caseload is almost double that of the 
national average, 726 cases per judge. It is quadruple the national 
average in Federal criminal cases, with 213 criminal cases per judge.
  Jeffrey T. Miller, who is one of my nominees, was nominated to be 
district judge for the Southern District of California. He is a sitting 
State superior court judge in San Diego, and has sat on that bench 
since 1987. Prior to that time, he was deputy attorney general in the 
California attorney general's office from 1968 to 1987. I took this up 
at the Judiciary Committee. I have asked for hearings to be able to 
consider his case. Judge Keep of the district court in San Diego has 
called and has indicated her concern about the caseload and asked if 
this body might be willing to take action to confirm this judge. With a 
criminal caseload that is quadruple the national average and overall 
caseload that is almost double the national average, I think on a 
hardship case that judge, as well, should be approved.
  I would like to just end with one additional judge and that is 
Christina Snyder, nominated to be the U.S. district judge, District 
Court for the Central District of California, in hopes that her case 
might also be heard. I recognize she has not yet had a committee 
hearing and has been waiting for one to take place since May 15.
  What I have tried to do is indicate two court of appeals judges who I 
think should be part of any final passage. Certainly, at the very 
least, one district court judge, Margaret Morrow, who has been waiting 
a long time, should be part of any final passage.
  I wanted to make very clear to this whole body the importance of this 
to me, in considering any final passage of judicial appointments which 
might come before this body. I thank the Chair and I yield the floor.

                               Exhibit 1

                                               University of Texas


                                                School of Law,

                                   Austin, TX, September 28, 1995.
     Hon. Orrin G. Hatch,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Hatch: My expectation is that the letter I 
     wrote Judge Mikva many months ago, urging the President to 
     nominate William Fletcher for a seat on the Ninth Circuit, is 
     a part of the file that your committee has in passing on that 
     nomination. It occurred to me, however, that it might be 
     useful for me to write you directly to say what a fine 
     appointment that is and how much I hope that it will be 
     confirmed by the Senate.
       I do not doubt that Professor Fletcher is more liberal on 
     many issues than I am. That seems to me almost entirely 
     irrelevant. Over the years that I have known him and also 
     read his writing, what has greatly impressed me has been that 
     he has a quality that I regard as absolutely essential for a 
     scholar and that I regard as equally important for a judge. 
     This is the ability to put his own preferences aside and to 
     hunt objectively to see what answer the law provides.
       Too many scholars approach a new issue with preconceptions 
     of how it should come out and they then force the data that 
     their research uncovers to support the conclusion they had 
     formed before they did any research. I think that is 
     reprehensible for a scholar and it is dangerous for a judge.
       I am completely confident that when Fletcher finishes his 
     service on the Ninth Circuit we will say not that he has been 
     a liberal judge or a conservative judge but that he has been 
     an excellent judge, one who has brought a brilliant mind, 
     great powers of analysis, and total objectivity to the cases 
     that came before him.
       Although you do not know me well, I believe that our 
     acquaintance over a number of years has been enough for you 
     to know that I would not say this merely because I think of 
     Fletcher as a friend, I have spent a lifetime working for the 
     improvement of the federal courts. I believe that the 
     nomination of William Fletcher will add strength to the Ninth 
     Circuit and I hope very much that he is confirmed.
       It is wonderful to have you as Chairman of the Judiciary 
     Committee, I wish you well in that challenging task. Anytime 
     I can be of assistance to you or the Committee on the kinds 
     of matters on which I have some expertness, I would be 
     delighted to help.
           Sincerely,
     Charlie Wright.
                                                                    ____



                                           Harvard Law School,

                                  Cambridge, MA, October 18, 1995.
     Senator Orrin G. Hatch,
     Chairman, Senate Judiciary Committee,
     Dirksen Building, Washington, DC.
       Dear Senator Hatch: We understand that William A. Fletcher, 
     Professor of Law at the University of California, Berkeley, 
     has been nominated to the United States Court of Appeals for 
     the Ninth Circuit. We write to express our exceptionally high 
     regard for his abilities and our deep enthusiasm about the 
     prospect of his confirmation.
       One of us (Daniel Meltzer) has known Mr. Fletcher for more 
     than 19 years, since the time they served together as clerks 
     at the United States Supreme Court. Though they now reside on 
     different coasts, they have maintained their friendship, and 
     because they teach the same law school course (Federal 
     Courts), they have been professional colleagues, discussing 
     academic matters, reading each other's publications, 
     exchanging manuscripts, and engaging in other forms of 
     academic collaboration.
       Mr. Shapiro also knows Mr. Fletcher. Like Mr. Meltzer, he 
     too teaches Federal Courts and hence has long been familiar 
     with Mr. Fletcher's scholarship. Mr. Shapiro also served as 
     Deputy Solicitor General, from 1988-91, which gave him an 
     additional vantage point on both the work of the federal 
     courts and on Mr. Fletcher's contribution to scholarship in 
     that field.
       In our opinion, Mr. Fletcher is a scholar of the first-
     rank. His writing in the area of Federal Courts displays 
     intellectual rigor, mastery of the subject, and very sound 
     and balanced judgment about complex and controversial legal 
     matters. His voice is an important one that is broadly 
     respected by a wide range of scholars. His work reflects the 
     abilities not only of a creative scholar, but also of a 
     careful and thoughtful lawyer.
       Mr. Fletcher's scholarly work extends also to the fields of 
     federal civil procedure and federal constitutional law. Thus, 
     the sphere of his interests and achievements as a scholar 
     constitute ideal preparation for the work of a federal 
     circuit judge.
       Finally, Mr. Fletcher is a person of enormous integrity, 
     unfailing decency, and great personal warmth and good humor. 
     In light of those qualities, we believe that fellow judges of 
     all viewpoints would find him a congenial colleague, and 
     would develop for him the same professional admiration that 
     he has earned across the academic spectrum.
       We hope that his assessment is helpful. Please let us know 
     if we can be of any further assistance.
           Sincerely,
     Daniel J. Meltzer,
       Professor of Law.
     David L. Shapiro,
       William Nelson Cromwell Professor of Law.
                                                                    ____

                                       University of Pennsylvania,


                                               The Law School,

                               Philadelphia, PA, October 23, 1995.
     Hon. Orrin Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch: As you know, the President has 
     nominated Professor William A. Fletcher to be a judge on the 
     United States Court of Appeals for the Ninth Circuit. Because 
     I have known Willy since we were college classmates and 
     because I have such high regard for his character and 
     abilities, I write to urge that you support his confirmation 
     by the Senate.
       By way of background, I was a law clerk to the late Chief 
     Justice Burger in 1974-75 and have been on the faculty of the 
     University of Pennsylvania Law School since 1979. I teach and 
     write in the areas of civil procedure, conflict of laws and 
     judicial administration. I had the pleasure of meeting and 
     testifying before you and other members of the Subcommittee 
     on the Constitution of the Senate Judiciary Committee, 
     together with Chief Judge Clifford Wallace, in 1986. The 
     subject of that hearing, Senate Joint Resolutions that would 
     have altered in fundamental ways our arrangements for federal 
     judicial discipline, subsequently occupied my attention

[[Page S12161]]

     as a member of the National Commission on Judicial Discipline 
     and Removal. On the Commission I worked particularly closely 
     with the Vice-Chair, Judge S. Jay Plager of the United States 
     Court of Appeals for the Federal Circuit, and we co-authored 
     an article about the Commission's work.
       As I mentioned, I knew Professor Fletcher as a student at 
     Harvard College, where he had a distinguished record, 
     graduating magna cum laude in history and literature (then 
     perhaps the most difficult major at Harvard) in 1968. He 
     earned another degree at Oxford on a Rhodes Scholarship and 
     then served on active duty in the Navy. Following law school 
     at Yale and clerkships with Judge Weigel and Justice Brennan, 
     Willy joined the faculty at Boalt Hall (Berkeley), where he 
     has been ever since (with occasional visiting appointments at 
     other schools).
       Willy is a scholar of federal courts, constitutional law, 
     and civil procedure. Because our interests overlap to a 
     considerable extent, I have read almost everything he has 
     written. His work is both analytically acute and painstaking 
     in its regard for history. Indeed, love of and respect for 
     history shine through all of his work, as the history itself 
     illuminates the various corners of the law he enters. For 
     instance, Willy's article on the Rules of Decision Act is a 
     tour de force. He uses marine insurance cases from our early 
     days to show how differently the judges and other lawyers of 
     that period thought about law and hence to reveal current 
     interpretations of that very important statute as the product 
     of a philosophy (positivism) far removed from the minds of 
     the First Congress. Of greater current interest are his 
     writings on the Eleventh Amendment, which has attracted 
     volumes of teleological scholarship--what is sometimes 
     referred to as ``law office history.'' Willy's work is, by 
     contrast, scrupulous, balanced, and, I believe, persuasive.
       If only because Willy has been nominated by this President, 
     for whose campaign in Northern California he served as unpaid 
     codirector, I wish to stress that the qualities of care and 
     balance characterize all of Willy's scholarship. He is also a 
     lucid writer. As a result, his Yale article on the 
     ``Structure of Standing'' may well be the best treatment of 
     that confusing subject in the literature, as well as the most 
     faithful to the history of the doctrine. It is also far 
     removed from the expansive approach of Justice Douglas and 
     other members of the Warren Court.
       In sum, as to Willy's legal qualifications, I second the 
     views of Charles Alan Wright expressed in the enclosed 
     article from the Los Angeles Times. I would add only the 
     suggestion that, if you have any residual doubt, you solicit 
     the views of my colleague, Geoffrey Hazard. Geof recruited 
     Willy to work with him on his casebook in Civil Procedure, 
     the best evidence of the high regard of a demanding critic. 
     Of course you can make the judgment yourself.
       Finally, believing as I do--particularly after service on 
     the National Commission on Judicial Discipline and Removal--
     that character is of equal importance with intelligence as a 
     desideratum in a judge, I can testify from thirty years of 
     knowing Willy Fletcher that he will bring great distinction 
     to the federal judiciary. He is a man of integrity and 
     compassion but one who knows that the law cannot (and should 
     not) solve all of society's problems.
       Please let me know if I can provide any additional 
     information.
       I hope that you are well.
           Sincerely,
                                               Stephen B. Burbank,
         David Berger Professor for the Administration of Justice 
           and Acting Dean.
                                                                    ____


                 [From the New Republic, May 22, 1995]

       On the other hand: After two years of lamenting President 
     Clinton's failure to appoint scholars to the federal courts, 
     we're delighted to note that he last week nominated U.C.-
     Berkeley's William Fletcher to the United States Court of 
     Appeals for the Ninth Circuit.
       Fletcher is the most impressive scholar of federal 
     jurisdiction in the country. His path-breaking articles on 
     sovereign immunity and federal common law have transformed 
     the debates in those fields; and his work is marked by the 
     kind of careful historical and textual analysis that should 
     serve as a model for liberals and conservatives alike.
       If confirmed, Fletcher will join his mother, Betty, on the 
     Ninth Circuit but his judicial philosophy is more restrained 
     than hers. We hope he is confirmed as swiftly as possible.

  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.

                          ____________________