[Congressional Record Volume 140, Number 17 (Thursday, February 24, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: February 24, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                        JUSTICE ROSEMARY BARKETT

  Mr. DOLE. Mr. President, last November, Senate Republicans and 
Democrats put aside our partisan differences and passed one of the 
toughest crime bills we have ever considered.
  Will this bill put an end to the crime epidemic? Of course not, not 
by a long shot. But after years and years of congressional inaction, 
and after more chaos and slaughter on the streets of America, this 
bill--if adopted by the full Congress--would represent a good first 
step in the right direction. It would be progress.
  President Clinton is now on the rhetorical offensive, talking tough 
on crime as he tries to refashion himself as a new democrat. Although 
the President has not fully embraced every detail of the Senate-passed 
crime bill, including the $6.5 billion it devotes to incarcerating 
violent criminals, it appears that each day he is inching closer to an 
endorsement.


                    an opportunity for the president

  If President Clinton musters up enough political courage to say 
``No'' to the liberals in the House of Representatives and throws his 
unqualified support behind the Senate-passed crime bill, it will be a 
credit to his administration and a boon for the American people.
  When it comes to fighting crime, the American people do not indulge 
in muddled thinking: Criminals are not the victims of society, as the 
root-cause liberals would have us believe. On the contrary: Society is 
the victim of criminals. And the most effective antidote to violent 
crime, at least in the short-term, is to arrest the violent offenders, 
convict them, lock them up, and then slam-shut the revolving prison 
door. The simple truth is: A criminal kept behind bars will not 
terrorize a single law-abiding citizen. Not one.
  Of course, actions speak louder than words. We can toughen the 
criminal laws. We can put more police on the streets. We can give more 
resources to law enforcement. We can keep violent criminals behind bars 
through truth-in-sentencing and by building more prisons. But these 
efforts, no matter how worthwhile, will quickly unravel if the Federal 
bench is dominated by judges who seek to substitute their own liberal 
policy preferences for a neutral application of the criminal laws.
  Judges, and the rulings they make, can have an enormous impact on our 
criminal justice system. Like a hefty credit card bill, America is 
still paying the price for the Warren court years--and Warren happened 
to be a Republican--a period of unparalleled judicial activism during 
which the rights of criminal defendants were expanded and the ability 
of law enforcement to protect the public tragically diminished.


           barkett record does not match president's rhetoric

  One judicial nominee whose record of liberal activism is curiously at 
odds with the President's tough-on-crime rhetoric is Florida Supreme 
Court Chief Justice Rosemary Barkett. Justice Barkett has been 
nominated to fill a vacancy on the 11th Circuit Court of Appeals.
  Last year, when she was first nominated, I publicly expressed some 
reservations about Justice Barkett's record. During the past few 
months, I have had the opportunity to examine this record more fully.
  Justice Barkett is, no doubt, an intelligent and capable person. But, 
time after time during her tenure on the Florida Bench, Justice Barkett 
has shown a willingness to find excuses for criminal behavior and an 
eagerness to indulge in the criminal-as-the-victim-of-society approach 
that does so much to erode public confidence.
  First, the death penalty. The death penalty is one area in which 
Justice Barkett's liberal activism has flourished.
  Yes, it is true that Justice Barkett has, on numerous occasions, 
joined with her colleagues on the Florida Supreme Court in voting to 
uphold the imposition of the death penalty. But it is also true that 
she is the most antideath penalty member of the Florida court, having 
dissented more than 100 times--and often without explanation--from the 
court's decision to enforce a capital sentence. By contrast, Justice 
Barkett has never--not once--dissented from a majority decision of the 
Florida Supreme Court that granted relief to a convicted capital 
murderer.
  In one case involving a brutal, racially motivated killing--Dougan 
versus State--Justice Barkett joined a dissenting opinion that offered 
the following criminal-as-a-victim-of-society analysis. Criminal as 
victim--do not worry about the victim, worry about the criminal. ``This 
case is not simply a homicide case, it is also a social awareness case. 
Wrongly, but rightly in the eyes of the criminal defendant, this 
killing was effectuated to focus attention on a chronic and pervasive 
illness of racial discrimination and of hurt, sorrow, and rejection. 
His impatience for change, for understanding, for reconciliation 
matured to taking the illogical and drastic action for murder. The 
victim was a symbolic representation of the class causing the perceived 
injustices.''
  Although Dougan stabbed his victim repeatedly, shot him twice, 
laughed at the victim while he pleaded for his life, and sent several 
tape recordings bragging about the murder to the victim's mother, 
Justice Barkett and her colleagues insisted that the defendant had some 
positive qualities.

       In comparing what kind of person Dougan is with other 
     murderers in the scores of death cases that we have reviewed, 
     few of the killers approach having the socially redeeming 
     values of Dougan.

  Is that not a great statement? There are a lot of murderers out 
there, but this is a good murderer so we should not do anything to him.
  In another case, Foster versus State, Justice Barkett adopts the 
statistical-evidence defense that was explicitly rejected by the U.S. 
Supreme Court in McCleskey versus Kemp. In Foster, a white defendant 
brutally murdered a white victim. After his conviction, the defendant 
sought to overturn his capital sentence by claiming that the death 
penalty was unconstitutional since it was imposed more often on 
defendants whose victims were white than on defendants whose victims 
were black. The Florida Supreme Court rejected this argument, insisting 
that the defendant had to show actual, purposeful discrimination for 
his claim to succeed.
  In a dissenting opinion Justice Barkett concluded that statistical 
evidence showing a discriminatory impact in capital sentencing that can 
not be traced to ``purposeful and deliberate discrimination'' could, 
nonetheless, establish a violation of Florida's equal protection 
clause. In other words, if the numbers don't add up--and that is all--
Justice Barkett could see a constitutional violation, justifying the 
rejection of a capital sentence.
  Justice Barkett's fuzzy reasoning is almost identical to the theory 
behind the so-called Racial Justice Act, which the Senate has 
considered--and repeatedly rejected. Like the Racial Justice Act, 
Justice Barkett's view that statistical evidence alone subjects a 
capital sentence to constitutional challenge would paralyze the 
enforcement of the death penalty. As my colleague from Florida, Senator 
Graham, has explained: ``The very nature of the criminal justice 
[system] does not lend itself to statistical precision--the 
constitution requires an individualized determination as to the 
appropriateness of the death penalty, taking into account the character 
and record of the murderer and the circumstances of the offenses.''
  In other words, individual justice is what matters--not justice-by-
the-numbers.
  There are other examples of Justice Barkett's activism: In Hodges 
versus State, Justice Barkett dissented, using sloppy reasoning to 
oppose the imposition of a capital sentence on a person who had 
committed a premeditated murder of a 20-year-old witness at a criminal 
trial. And in another case--Porter versus State--Justice Barkett 
appears to argue that a spurned lover who stalks and kills his former 
mate almost never merits a capital sentence.
  Mr. President these cases are not decided in a legal vacuum. They 
have real-world consequences: For if Justice Barkett's views had 
prevailed, convicted cold-blooded murderers would have been spared the 
punishment the citizens of Florida believed they deserved.
  Second, search-and-seizure. A distrust of the police also runs 
through some of Justice Barkett's opinions.
  For example, she has written a number of unduly restrictive fourth 
amendment search-and-seizure opinions that would hamstring the police. 
Two of these opinions have been reversed by the U.S. Supreme Court, and 
one has been criticized by it.
  For example, in Bostick versus State, Justice Barkett ignored 
established Supreme Court precedent and ruled categorically that a 
police drug search of a passenger on a commercial bus violated the 
fourth amendment, even though the passenger had consented to the 
search. In her opinion, Justice Barkett compares the search to the 
``roving patrols and arbitrary searches conducted in Nazi Germany, 
Soviet Russia, and Communist Cuba.'' Even Florida Attorney General Bob 
Butterworth, a supporter of Justice Barkett, criticized her 
inflammatory rhetoric, saying that ``such language is simply not 
appropriate, and we should expect more from--[Florida's] highest 
court.'' Not surprisingly, the Bostick ruling was later overturned by 
the U.S. Supreme Court.
  Another area, obscenity and antiloitering laws. Justice Barkett has 
also demonstrated a hostility to criminal obscenity and antiloitering 
laws, even when these laws are narrowly drawn. Local communities often 
depend upon these laws to maintain basic standards of decency and to 
enhance the personal safety of their residents.
  In Justice Barkett's view, criminal obscenity laws violate due 
process. As she explained in one of her opinions, and I quote:

       A basic legal problem with the criminalization of obscenity 
     is that it cannot be defined * * *. Thus, this crime, unlike 
     all other crimes, depends, not on an objective definition 
     obvious to all, but on the subjective definition, first, of 
     those who happen to be enforcing the law at the time, and 
     second, of the particular jury or judges reviewing the case. 
     Such a principle runs counter to every principle of notice 
     and due process in our society.

  In this sweeping denunciation, Justice Barkett did not even 
acknowledge the Supreme Court's 1973 decision, Miller versus 
California, which defined criminal obscenity. This definition has been 
approving by cited by lower Federal and State courts on hundreds of 
occasions.
  Justice Barkett has also written opinions striking down local 
ordinances prohibiting loitering for the purpose of prostitution and 
engaging in drug-related activity. In both instances, she resorted to 
legal analyses that appear designed to advance her own policy 
preferences rather than neutrally apply existing law.
  Mr. President, as Americans everywhere fear they will become the next 
crime statistic, it is vital that the President nominate judges to the 
Federal bench who view ``law-and-order'' as something more than just a 
slogan.
  Slogans, of course, do not stop crime; tough law enforcement and 
credible punishment do. The citizens of Florida have certainly learned 
this lesson the hard way: Florida has one of the highest crime rates in 
the country. Yet, according to one analysis, 95 percent of the 
criminals sentenced to prison in Florida serve less than 15 percent of 
their sentences. So 95 percent of the criminals sentenced serve about 
15 percent of their sentences.
  Unfortunately, Justice Barkett too often has found excuses for 
criminal behavior and has substituted sociology for the neutral 
application of the law. Although I don't question Justice Barkett's 
intellect or integrity, I will vote against her confirmation. I urge my 
colleagues on both sides of the aisle to do the same.
  Mr. President, I thank you for this time, and I suggest the absence 
of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. MITCHELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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