Magazine article Insight on the News
Clinton Makes Illegal Pick for Appeals Court
The Senate has an unusually clear opportunity to place principle ahead of politics, something all too rare and therefore particularly revealing in Washington.
President Clinton has nominated Willy Fletcher, a University of California at Berkeley law professor, to a seat on the U.S. Court of Appeals for the 9th Circuit. Fletcher lacks both judicial and courtroom experience. He is, however, a close friend of the president. Fletcher was a Clinton classmate at Oxford, defended him when the news of his marijuana use sur-faced and was codirector for Northern California of the Clinton/Gore campaign in 1992.
While the president was free to nominate Fletcher, federal law prohibits the Senate from consenting to his appointment. Title 28 of the U.S. Code states in section 458: "No person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity within the degree of first cousin to any justice or judge of such court." Betty Fletcher, the nominee's mother, has been a judge on the 9th Circuit since 1979. As such, Fletcher's appointment to the 9th Circuit is unlawful. The clear choice facing the Senate is whether it will obey the law.
Clinton already has made his choice. In a letter dated April 25, 1995, Assistant Attorney General Walter Dellinger insisted that this statute does not apply to presidential appointments. This conclusion should confuse anyone able to read the English language. Judges are appointed to the most important office in a court. Article II, section 2, of the Constitution gives the president the power to appoint judges. On its face, this statute applies to federal judicial appointees in general and to Fletcher's appointment in particular.
When first enacted in 1887, this statute's language covered only people appointed by a judge or court. This clearly did not apply to the judges themselves. Congress repealed the statute in 1911 and enacted the current language, which clearly does cover the judges themselves. Who else is appointed to a court? So not only does this statute clearly prohibit Fletcher's appointment, but that clarity also results from legislative changes that make alternative readings impossible.
That did not stop the creative lawyers in the Clinton Justice Department. …