The names Jose Padilla and John Yoo are perhaps more closely associated with former President Bush’s War on Terror than with Judge Raymond C. Fisher ’66 and the United States Court of Appeals for the Ninth Circuit. Padilla, arrested in 2002 and designated an enemy combatant, was held in a military prison on suspicion of plotting an attack on the United States—until that charge was dropped and he was convicted by a federal jury of conspiracy to commit murder and acts of terrorism and in 2008 sentenced to 17 years in prison. He is appealing the sentence, but he is also attempting to sue one of the leading lawyers of the Bush administration—alleging that memos drafted by former Department of Justice lawyer John Yoo regarding the treatment of enemy combatants led to interrogation and isolation akin to torture. Judge Fisher is part of a three-judge panel currently debating whether to allow Padilla’s case to go forward.
That a case with potentially far-reaching implications such as this one would find its way to Judge Fisher and the Ninth Circuit is no surprise. The court is the largest of the nation’s 13 courts of appeals—with 29 active judgeships it hears more cases than any of the circuit courts. And Fisher adds a breadth of experience to the court that spans almost half a century in law. Fisher has spent his entire career—from prestigious clerkships to high-profile litigation and top-level government service—wrestling with challenging legal and social issues that forged his judicial philosophy and contribute to the considerable wisdom he brings to the bench.
Born in 1939 and raised in southern California in an academic family (his father was a Russian history professor at UCLA), Fisher began his undergraduate education at Stanford University, but soon transferred.
“I’d been in the Army on active duty at Fort Ord for six months before college and I didn’t appreciate being isolated in the freshman dorm in Wilbur Hall. I thought I could get as good an education for less money at UC Santa Barbara,” he recalls. He met his wife, Nancy, at UCSB and upon graduation they started a family. Thereafter he spent more than two years working in management for the telephone company—but eventually decided to pursue a career in law. “I seriously considered business, but law fit more comfortably with the academic culture I knew growing up and promised me more control over my own destiny,” he says.
Fisher was all set to attend Berkeley Law in the fall of 1963, when he got a call out of the blue. “You don’t know me,” said the caller, “but my name is Warren Christopher. I’m a partner at O’Melveny & Myers and I’d like to talk to you about attending Stanford Law School.” According to Christopher ’49, the admissions office had identified Fisher as an outstanding candidate and asked for recruiting assistance.
Christopher’s personal touch, combined with Stanford’s offer of a full scholarship and access to married student housing, convinced Fisher to give Stanford another try. He said “yes” to Christopher and to Stanford and serendipitously began both a friendship and an educational experience that would profoundly influence his future.
At Stanford, Fisher found an outlet for his scholarly interests as a member and then president of the Stanford Law Review, and he considered a career as either a law professor or a litigator. That decision was put on hold, however, when J. Keith Mann, then the associate dean for academic affairs, helped him find a clerkship with U.S. Circuit Court Judge J. Skelly Wright in Washington, D.C. Mann and Christopher then nominated Fisher for a clerkship with U.S. Supreme Court Justice William J. Brennan, Jr., a position Fisher assumed a year later, in 1967.
“It was the Warren Court era, and they both were liberal judges who were very intent on making the law relevant to people who could be unfairly affected by the tyranny of the majority,” Fisher says. This was particularly evident in the school desegregation cases, which flooded the courts at that time and impressed him with the judiciary’s critical role in protecting minority rights.
After his clerkship with Brennan, and by then with two young children, Fisher joined the Los Angeles firm of Tuttle & Taylor at the urging of SLS alum and law firm partner William Norris ’54. Fisher had been a litigator with the firm for just three years when he found himself at the center of one of the most highly charged controversies in Stanford’s history.
In 1971-1972, Stanford University President Richard Lyman sought to fire H. Bruce Franklin (PhD ’61), a tenured English professor and self-described revolutionary, on charges of inciting students to commit acts of violence in protest against the Vietnam War. There was little precedent for a proceeding; few tenured professors anywhere had been terminated from their positions for any reason, let alone for actions arguably implicating academic freedom and free speech.
The case was to be heard by the advisory board, a group of seven professors chaired by then Professor Donald Kennedy. The university asked Norris, known for his own commitment to the First Amendment, to prosecute the case on its behalf. But Norris had other trial commitments and after opening statements Fisher, as Norris’s second chair, was left in charge.
Today, Kennedy recalls Fisher’s performance: “His professionalism and cool were remarkable amid guerrilla theater, audience demonstrations, and a guy in work clothes and heavy boots in the front row who kept saying ‘class warfare.’ Ray responded to all sorts of proposals, some outlandish, with a calm and professional manner that kept the proceedings on track. I admired and respected him.”
One hundred witnesses and 1 million words of testimony later, the university and Fisher prevailed (and Stanford would later secure a court victory after eight additional years of litigation). Fisher describes the Franklin case as “one of the most challenging experiences of my career and a great education in ‘trial by fire.’ ”
Tuttle & Taylor provided other litigation highlights too—Fisher once represented Clint Eastwood—but the firm also instilled in its attorneys the importance of public service, something Fisher was eager to embrace. When former fellow associate Jerry Brown ran for governor of California, Fisher volunteered in his campaign. And following Brown’s election, Fisher worked in his administration for 10 months on public employee collective bargaining legislation and afterwards returned to practice with a better understanding of state government and civil service systems.
That experience led to his appointment by L.A. Mayor Tom Bradley to the city’s Civil Service Commission, an oversight body that reviewed personnel decisions. Fisher then moved to center stage once again as a member of the Christopher Commission, serving as deputy general counsel in the investigation of the LAPD that followed the Rodney King beating. Fisher helped author recommendations for drastically reforming the role of the police commission and the rules governing appointment and tenure of the chief of police. He wound up responsible for implementing the commission’s recommendations when L.A. Mayor Richard Riordan subsequently appointed Fisher to be president of the police commission—a sometimes contentious and difficult process that garnered him extensive publicity.
The publicity brought Fisher to the attention of the Clinton administration, and in 1997 he was appointed associate attorney general of the United States, “a dream job,” he says. He relished the exposure to and responsibility for a variety of areas, including civil litigation, civil rights, antitrust, tax, and the environment.
“It was an intensive and wonderful two years,” says Fisher. And, he notes, nothing could have prepared him better for his appointment in 1999 to the U.S. Court of Appeals for the Ninth Circuit, whose docket covers much of the same subject matter.
Since becoming a judge, Fisher has attempted to emulate both the mentorship and the values of the judicial giants for whom he clerked. He is revered by his clerks, nearly all of whom gathered last year to celebrate his 10th anniversary on the bench.
“It was an honor and privilege to clerk for Judge Fisher, truly one of the greats,” says Elizabeth Pollman ’05 (BA ’99), who clerked for Fisher in 2007-2008 and is now a Stanford Law School Fellow. “I’m amazed by how much he taught me in the clerkship and by his wonderful continued mentorship. He’s simply the best—we all have so much love and respect for him.”
Philosophically, Fisher does not fully share Chief Justice John Roberts’s view of a judge’s role. Fisher believes that judges do more than just call balls and strikes: “Frequently, we also have to define the strike zone.” Thus, he feels a judge must “bring to bear an objective, principled evaluation of each case,” while recognizing that his own background and values inevitably will influence his judgment.
“Ray melds a lifelong commitment to fairness and justice with an understanding of the role of precedent,” says Christopher. “If you look at his opinions, you can always count on the highest standards of craftsmanship and clarity no matter how you might feel about the outcome.” SL
Categories: Legal Profession