[Congressional Record Volume 140, Number 40 (Thursday, April 14, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: April 14, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
 NOMINATION OF ROSEMARY BARKETT, OF FLORIDA, TO BE U.S. CIRCUIT JUDGE 
                        FOR THE ELEVENTH CIRCUIT

  The assistant legislative clerk read the nomination of Rosemary 
Barkett, of Florida, to be U.S. circuit judge for the eleventh circuit.
  The ACTING PRESIDENT pro tempore. Time for this nomination is limited 
to 6 hours, to be equally divided between the chairman and ranking 
member of the Judiciary Committee or their designees.
  The Chair recognizes Senator Biden.
  Mr. BIDEN. Mr. President, speaking of never complain and never 
explain, I think we should move to the nomination of Rosemary Barkett 
and confirm her. I think there is really no need for lengthy 
explanation as to the qualifications of this woman to be on the court.
  Mr. President, I rise in support of the nomination of Rosemary 
Barkett, chief justice of the Florida Supreme Court, to become a judge 
in the U.S. court of appeals for the eleventh circuit.
  I see my distinguished colleague from Florida, the main sponsor and 
supporter and friend of Rosemary Barkett, is here, Senator Graham, and 
my colleague, the ranking Republican on the Judiciary Committee, 
Senator Hatch. For purposes of allowing people to plan at least the 
initial scheduling, I intend on speaking at the outset here for about 
20, 25 minutes and then I will yield the floor.
  But I think it is important for me to lay out why I feel so strongly 
that Rosemary Barkett is supremely qualified to be on the U.S. court of 
appeals for the eleventh circuit. It seems to me there can be no doubt 
that she is qualified for the position for which she has been 
nominated. Her educational background and her career as a lawyer and a 
judge demonstrate a commitment to service, a depth of experience, and a 
strength and character that makes her an excellent choice for the 
Federal bench.
  Justice Barkett, as a young woman, joined the order of the Sisters of 
St. Joseph. I know something about the Sisters of St. Joseph as well 
since for 8 years they were my primary teachers, and I probably learned 
more from them than any other group of people with whom I have been 
associated my entire life.
  As a sister she maintained her vocation from 1956 until 1967. During 
this time, while she taught in the elementary and secondary schools, 
she earned her BS degree summa cum laude from Spring Hill College. The 
nominee then entered the law school at the University of Florida. She 
finished at the top of her law school class in 1970, earning the award 
for the outstanding graduate.
  After Justice Barkett had worked for 9 years as a lawyer in private 
practice, then Governor  Bob Graham, now U.S. Senator Bob Graham, 
appointed her to fill an unexpired term as a trial judge in 1979, and 
in 1984 elevated her to the State court of appeals. One year later, 
Governor Graham appointed Rosemary Barkett to the Florida Supreme 
Court, making her the first woman to sit on that court.
  Facing an election to retain her seat--and that is how they do it in 
Florida. You get appointed, as I understand it, but then after a set 
amount of time you stand before the people of Florida and say what do 
you think of the job I did and are you going to retain me or do you 
want me to move on. And facing her election to retain her seat on the 
supreme court in 1992, Justice Barkett garnered an impressive 61 
percent of the vote cast, I expect a percentage that any Member of this 
body would be overwhelmingly pleased with being able to generate in 
their home States, although I do know some of my colleagues do better 
than that on occasion and we all envy that ability.
  Following that election, her colleagues on the court named her chief 
justice. Justice Barkett has observed the practice of law from the 
perspective of a litigator and as a trial judge, ultimately undertaking 
the task of appellate review. Her more than 20 years in the legal 
profession, her thousands of cases on the courts, the supreme court, 
the court of appeals, the trial court, and in private practice, provide 
her with a wealth and breadth of experience that make her an excellent 
choice in my view for the eleventh circuit. This history must be 
considered. The laudatory comments of her peers in her profession, both 
practicing lawyers and her colleagues on the bench, as well as the 
overwhelming confidence placed in her by the people in Florida, I think 
should be taken into account by our colleagues as they vote today.
  The American Bar Association gave her its highest rating of well 
qualified by a unanimous vote. All these factors indicate that Rosemary 
Barkett is a woman possessing the outstanding character necessary for 
service as a Federal judge.
  I might add that State court judges in my State, a majority of whom 
are Republican because our judges are appointed; they do not stand for 
election, I have had a handful of them come up to me and ask me about 
Rosemary Barkett. And we are very proud, by the way, as all States are, 
we are very proud of the quality of our bench in the State of Delaware. 
It has been for 150 years viewed as one of the outstanding benches of 
all the State courts, and these are very, very solid Republicans who 
have come up to me who, in fact, are suggesting to me strongly, I hope 
there is no problem with Rosemary Barkett; she is such a fine judge. 
They have worked with her. They know her and they support her.
  Given her outstanding qualifications and commitment to service, some 
of my colleagues wonder why this nomination is commanding so much of 
the Senate's attention. The fact is that Justice Barkett's critics 
object to some of her decisions and therefore her confirmation on 
ideological grounds. Far be it for me to suggest that ideological 
grounds in certain circumstances are not appropriate things for 
Senators to consider. This ideological attack on the nominee for the 
court of appeals, though, in my view, is inappropriate for reasons I 
will explain in a moment.
  I am not suggesting it is malevolent. I am just suggesting it is 
inappropriate. It is not at all inappropriate, when the President of 
the United States nominates a Justice for the Supreme Court, which he 
will be doing in the coming months, for my Republican or Democratic 
colleagues to take issue with the ideology of whomever the President 
appoints because a Supreme Court Justice can, in fact, change the law.
  An appellate court judge and a trial court judge, though, are bound 
by Supreme Court precedent. I have long maintained that a nominee's 
judicial philosophy is an appropriate consideration for a person 
seeking a seat on the Supreme Court. The reason for this view is really 
quite simple. Supreme Court Justices cannot be reversed. Supreme Court 
Justices, other than by constitutional amendment, are the final 
arbiters of the law and the meaning of the Constitution. For this 
reason, their judicial philosophies are a proper focus for the Senate, 
I think a necessary focus for the Senate.
  (Mrs. FEINSTEIN assumed the chair.)
  Mr. BIDEN. By contrast, judges in the lower Federal courts are bound 
by precedents of the Supreme Court. Notwithstanding their personal 
views, their obligation is to follow and interpret the law in a manner 
consistent with the Supreme Court's precedents.
  Moreover, lower court justices can be reversed when they err. As a 
member, and for the last 7 years as chairman, of the Judiciary 
Committee, I have relied on a three-pronged standard that has 
traditionally guided the Senate in evaluating lower court nominees. 
Again, I do not presume that because this is my standard there is 
nothing in the Constitution that says that under the advise-and-consent 
clause any Senator has to adopt a particular standard. I want to make 
that very clear. But what I also want to make clear is that is a 
standard which I have adopted, which has been a standard which I 
believe and understand the vast majority of the Members of the Senate 
in the 22 years I have been here have adopted as well. It is a three-
pronged standard:
  First, that the nominee has the capacity, competence, and temperament 
to be on the court of appeals or a trial court.
  Second, is the nominee of good character and free of conflict of 
interest?
  Third, would the nominee faithfully apply the Constitution and the 
precedents of the Supreme Court?
  If they meet those three tests, assuming they are not on the 
ideological fringe and they are not someone who is so out of the 
mainstream that you either question their competence, you question 
their character, you question their temperament as a consequence of 
where they sit, then it seems to me they should be given the 
opportunity to fulfill the seat for which they have been named.
  Using this test through 12 years of Republican nominees, I voted to 
confirm numerous lower court judges who were far more conservative than 
I am. Because I view the Supreme Court and the lower courts 
differently, I supported the nominations of Robert Bork and Clarence 
Thomas for the court of appeals, while I opposed their nominations for 
the Supreme Court for the very reasons which I have stated. They swore 
that they would uphold the Constitution as interpreted by the Supreme 
Court. I took them at their word. They honored their word.
  So on the court of appeals, it did not matter to me that they had 
such divergent views on how to interpret the Constitution from what I 
thought was an appropriate way. But once they are going to be moved to 
the Supreme Court where they are no longer bound by stare decisis, 
where they are no longer bound by prior Supreme Court decisions, and 
the Constitution was in the eye of the beholder, the beholder being 
those two individuals in question, I disagreed with their philosophy. 
Therefore, I opposed them on that circumstance for the Supreme Court, 
but voted for them for the lower court.
  Justice Barkett's critics seem to apply to Justice Barkett a standard 
previously applied only to Supreme Court nominees. In my view, this 
effort is unwise, and I urge my colleagues to reject this ideological 
test for nominees for the lower court while again emphasizing that I do 
not criticize and I would suggest that it is appropriate and necessary 
for Senators to apply such an ideological test for the Supreme Court.
  I outlined, a moment ago, Justice Barkett's sterling personal history 
and professional background, including her reputation within the legal 
profession. Thus, it is clear that she satisfies the first two prongs 
of this inquiry. She unquestionably possesses the competence and 
character essential in a nominee for the court of appeals.
  Let me speak for a moment about the third prong, respect for 
precedent, or stated another way, respect for the role of a court of 
appeals judge and an understanding of what that role is.
  I am convinced that Justice Barkett understands the job for which she 
is nominated. At her hearing, I asked Justice Barkett about the 
differences between what she does now in the Florida Supreme Court and 
what she seeks to do; that is, sit on an intermediate Federal court of 
appeals.
  Justice Barkett currently sits on the court of last resort in the 
State of Florida. She and her colleagues are the final arbiters of 
questions arising under the Constitution and laws of the State of 
Florida. Because the Florida court is required to evaluate both State 
and Federal claims, some results that would not follow through if from 
Federal precedent are mandated by State law and the State constitution. 
In other words, as a State judge, Justice Barkett is bound to follow 
Federal precedent only to the extent that she is interpreting the 
Federal Constitution and Federal law. She is not required to adhere to 
the U.S. Supreme Court precedents when she interprets State law, in 
almost all instances.
  In fact, as a State court judge, she should not follow Federal 
precedent when the State constitution commands a result different from 
Federal law so long as the State result is not proscribed by Federal 
law. This principle flows from the fundamental notion of federalism 
based within our constitutional system.
  By contrast, a judge on the eleventh circuit is bound by Federal 
precedent. When interpreting questions arising under the Federal 
constitutional laws, the eleventh circuit judge must look for guidance 
to the decisional law of the U.S. Supreme Court. I am satisfied that 
Justice Barkett fully appreciates the distinction between the State 
supreme court and the Federal courts of appeal. She testified as 
follows and I quote:

       As a member of the court of last resort in the State, it is 
     the State supreme court's job to look and act in our State 
     (Florida) within the context of Florida's Constitution and 
     Florida's laws and Florida's precedent, which in some cases 
     may be different from that of Federal precedent or the 
     Federal Constitution. In the Federal system of courts, you 
     would not be looking at a case in front of you when in the 
     context or ambit of the Florida Constitution or Florida law. 
     You will, of course, be looking only to Federal laws and be 
     guided by the precedent that the U.S. Supreme Court has 
     established, and I, of course, would do that.

  Thus, Justice Barkett, under oath, quite clearly stated that she, in 
fact, understands the distinction and, from my perspective, satisfies 
my three-pronged inquiry into a nominee's competence, character, and 
respect for precedent. For this reason, I support her nomination 
enthusiastically.
  Let me repeat. Were Justice Barkett before us here today as the 
President's nominee for the Supreme Court vacancy that has just been 
announced, I think I would still support her because philosophically I 
do not have a problem with her position as a supreme court justice in 
Florida. But, it would be totally appropriate for Members of this body 
to stand before the Presiding Officer this morning and say, ``I oppose 
this nominee because of her ideology and her philosophy.'' It would be 
totally appropriate. It might be misguided. It may be in disagreement 
with me. But it would be constitutionally, I think, dictated if they 
had a different philosophy and a different point of view than Justice 
Barkett.
  But she is not here for the Supreme Court of the United States of 
America, although someday, who knows, maybe she would be. But she is 
here today for the eleventh circuit court of appeals.
  So let me repeat again: Justice Barkett enjoys the competence, 
character, and respect for precedent essential in any nominee for a 
Federal court of appeals. Justice Barkett has written some 3,000 
opinions and participated in more than 12,000 cases since her 
appointment to the Florida court. I am aware the critics have raised 
some questions about some of those opinions, and I wish to address just 
a few of those at the outset because I am sure my distinguished and 
learned colleague--and he is learned in the law --Senator Orrin Hatch 
will raise a number of cases with which he has disagreement as do 
others on the Republican side of the aisle.
  First, there is a suggestion that Justice Barkett is unwilling to 
uphold the death penalty. We do not know what Justice Barkett thinks 
about the death penalty as a personal, moral matter. In fact, her 
personal views at this point, for the job she is seeking, are 
irrelevant. Justice Barkett's record belies any notion that she is 
unwilling to uphold the State's ultimate punishment.
  Justice Barkett has voted to affirm the death sentence of well over 
100 separate defendants during her tenure on the Florida Supreme Court. 
I will say that again. You will hear about how she is not willing to 
uphold the death penalty, because they say she opposes it. We do not 
have it anywhere in the record where she has said that. But we do have 
a record, notwithstanding some individual cases--and the Presiding 
Officer, as a member of the Judiciary Committee has already heard what 
was presented by her.
  The Senate and the Presiding Officer will hear today, from our 
colleagues, individual cases where Justice Barkett did not uphold the 
death penalty. That will be read to the Senate as an unwillingness to 
uphold the death penalty. But there are 100 times, or more, that she 
has sat as a judge in the Florida Supreme Court and affirmed--
affirmed--the death penalty of the lower court. She said: Yes, if that 
is the will and the decision of the jury in the lower court, based on 
Florida law, it is appropriate.
  In the vast majority of cases in which she has voted to reverse a 
sentence of death, she has not, as some critics have suggested, voted 
to ``spare the killer.'' Instead, she has voted to lock up the killer 
for life. Of relevance here is the fact that Justice Barkett has 
demonstrated a willingness to apply the law. If the question is whether 
Justice Barkett has voted to affirm the death penalty in every case to 
come before her, the answer is clearly: No, she has not.
  I think this is fortunate, quite frankly. I am a supporter, as the 
Presiding Officer is--we both sit on the Judiciary Committee. I have, 
for 22 years, been involved in criminal justice matters. I am the 
primary author of the bill being considered in the U.S. Congress today 
called the crime bill. I am the original author of that bill; I sat 
down and wrote it. There are over 50 different death penalties in it. I 
am a supporter of the death penalty. I also think that when you apply 
the death penalty, you better darn certain be right, and all the 
procedures and safeguards that are reasonably necessary under our 
Constitution should be built in before you reach that decision.
  Well, I looked at Justice Barkett's record, and although I may have 
disagreed with her on some of her votes, the fact is that she, in some 
cases, has reversed the sentence of death and made it life in prison. I 
do not think it is an unhealthy thing to have a judge who discriminates 
between the imposition of the death penalty and the imposition of life 
in certain circumstances where it may be warranted.
  Again, I emphasize that what is relevant here is the fact that 
Justice Barkett demonstrated the willingness to apply the law. If the 
question is whether she voted to affirm the death penalty in every case 
before her, the answer is no. Again, I say that I think that is 
fortunate, for if she had, I would have serious questions about her 
capacity for judging, because I find it difficult to think that every 
single solitary death case that came before a justice in the entirety 
of his or her career with hundreds of them, there is not a single one 
where there was reversible error. That would make me worry a little 
bit.
  If the question is whether Justice Barkett applies the laws to the 
facts and circumstances of a particular case, giving due consideration 
to the fundamental fairness of the proceedings and weighing carefully 
those factors in aggravation and mitigation of the death sentence, the 
answer is clearly that she does.
  It is this exercise, carefully applied to the law of Florida, that 
allows the State of Florida to carry out its death penalty in 
accordance with the U.S. Constitution and the rulings of the U.S. 
Supreme Court.
  Keep in mind, as my learned colleague in the chair knows, the reason 
why the death penalty was, for a fair amount of time in our recent 
history, viewed by the Supreme Court as not reasonably able to be 
applied, was because States were not applying it fairly. The courts--
without going into them--in some famous landmark cases in the last 15 
years, have sent out guidelines for States and said: Look, it is OK to 
have the death penalty. It is constitutional to have the death penalty. 
But you have to go by certain rules, certain procedures, and there are 
certain ways to apply it.
  So quite frankly, the reason why Florida has been able to apply the 
death penalty as often as it has, in my view, is because of the 
discriminating judgment as applied by their supreme court, including 
Justice Barkett. It is this existence of carefully applying the law 
that allows the State of Florida to carry out its death penalty.
  In every murder case, the law requires consideration of the 
mitigating circumstances. Thus, even where heinous facts exist, 
mitigating evidence must be considered under the Florida law and, in 
some cases, may still outweigh the factors supporting the death 
penalty.
  Granted, this is a judgment call; but it is one that a judge is 
required to enter into. A judge cannot merely say: Under Florida law, 
by the way, this is a heinous crime. It is such a heinous crime that I 
am not considering what the law says I must consider, which are any 
mitigating factors. I am just not going to do that. It is just so bad--
death.
  If they did that, in all probability, the Supreme Court of the United 
States would say: Wrong, you cannot apply that death penalty. You have 
to show us you are applying the law.
  So, granted, it comes down to literally what judging is about; 
applying judgment.
  My friend from Utah and I may disagree with Judge Barkett in a 
handful of cases where we say our judgment would have concluded that 
the mitigating factors did not outweigh the nature and the heinous 
nature of the crime and, therefore, the death penalty should be 
applied. But to suggest that because Judge Barkett may have reached the 
conclusion that what she was required to consider, added up to a 
sufficient grounds to say, no, life in prison as opposed to death, does 
not go to whether or not she is willing to apply the death penalty. It 
is in those handful of cases where her judgment may be different from 
the judgment of Members of this body as to what constitutes sufficient 
mitigating evidence to, in effect, be required to withhold the death 
penalty and put the person in jail for life.
  Reasonable judges may, and do, differ about what is appropriate in 
particular cases. Thus, when a judge has heard literally hundreds of 
death penalty appeals, as Justice Barkett has, there is little value in 
looking at cases out of their context within her entire record.
  In all these cases, Justice Barkett has demonstrated the willingness 
to apply the law meticulously. Such rigorous adherence to the law is, 
in my view, a qualification, not a disqualification, for service on the 
Federal Court of Appeals for the Eleventh Circuit.
  As a matter of fact, Madam President, it makes me realize that she is 
going to apply the precedents of the Supreme Court of the United 
States. She understands fully the requirements of a lower court judge, 
that they cannot wander the landscape even when philosophically they do 
not like a Supreme Court ruling. This should give my friends who worry 
she is going to go off on a toot of her own, they should be reading the 
opposite way. They should say: Here is a woman, here is a person, here 
is a judge who meticulously applies the law, as opposed to disregarding 
the law, because the murder was so heinous that every instinct in you 
says, death notwithstanding, the law says you must consider these other 
questions.
  Similar objections were raised in an effort to defeat Justice Barkett 
in a retention election for the Supreme Court of Florida. I am not 
expert on that election, but a man who is expert on that election, as 
expert as anyone, is sitting here. I suspect before the day is over our 
distinguished colleague, Senator Graham of Florida, will speak to this 
issue.
  My understanding is that those opponents of the retention of Justice 
Barkett in Florida raised all of the issues for all the people of 
Florida, and 61 percent of them said: Not only do we think that she 
applied the law, at least in a figurative sense, but we think her 
judgment was good.
  Who are we up here in the U.S. Senate, assuming we agree, as I think 
is inescapable--we must agree--with the fact that she applied the law, 
but maybe we disagree with her judgment, who are we to say that 61 
percent of the people of Florida are wrong about her judgment? They 
debated it. They campaigned on it. They discussed it. It was written 
about. And it was finally voted on. And 61 percent of the people of 
Florida said: Her judgment we do not disagree with.
  They may have said: We do not like the law. They may have said: We do 
not like the law that says you have to consider mitigating 
circumstances. But since that is the law, she did it, and we do not 
disagree with how she, in fact, did it.
  As I have noted earlier, she won the election overwhelmingly. And 
then after she won the election, her colleagues on the bench, some of 
whom voted against her on the particular cases that my friend from Utah 
is going to mention, where she ruled that the death penalty should not 
be applied, turned around and said: By the way, Rosemary, why not be 
our chief while you are at it? Why not be the chief justice?
  During that retention campaign, Justice Barkett was endorsed by the 
Florida Police Benevolent Association, not known for their opposition 
to the death penalty; the Fraternal Order of Police, both groups with 
which I work very closely, as does my friend from Utah, not known for 
their opposition to the death penalty; and the Florida Police Officers 
Association, not known as some radical liberal group running around the 
country deciding that the death penalty is the bane of freedom in 
America.
  I am not suggesting those who think it is the bane of freedom in 
America are radical. Decent, honorable people can disagree on whether 
or not the death penalty is moral or immoral.
  But here, police organizations endorsed her. Again, they know her 
well. And we are here going to second-guess a handful of cases that she 
decided on, and say we can draw a conclusion from that that this is a 
woman opposed to the death penalty and she will not apply the death 
penalty, will not apply the law.
  In addition, her retention was endorsed by Florida's attorney 
general, Bob Butterworth, with whom I have worked. Bob is a Democrat, 
but he is also, if I am not mistaken, a relatively strong supporter of 
the death penalty; and former Attorney General Jim Smith, a Republican. 
I might also add there are two Senators from Florida, as we all know, 
one a Republican and one a Democrat. Both of them endorse Judge 
Barkett, and I may be mistaken, but I think both of them are supporters 
of the death penalty.
  There is a man sitting here who has, as Governor, had to see executed 
the death penalty. I think it occurred during his tenure.
  So here we are going, all of sudden, to say: By the way, this person 
is not qualified because she is ideologically so far to the somewhere, 
and she is against the death penalty, and we should vote her down. That 
is one of the arguments you are going to hear. When you hear it, just 
put it in focus. A Republican Senator and Democratic Senator--I have 
never heard Bob Graham labeled a liberal on criminal justice issues. I 
have never heard Connie Mack labeled a liberal on criminal justice 
issues, or for that matter, on any other issues. I have never heard the 
Fraternal Order of Police, the Police Benevolent Association, nor the 
Florida Police Officers Association labeled a liberal anti-death-
penalty group.
  I imagine former Attorney General Republican Jim Smith will be 
surprised to learn that he was supporting someone who would not apply 
the death penalty and apply the law; and I know from my discussions 
with Bob Butterworth, the present attorney general, a Democrat, that he 
would be surprised, since he is such a strong supporter.
  So you are going to hear a lot of specifics, and it is relevant, it 
is not unimportant, and it is appropriate that we hear it. But when it 
is all said and done, as my old senior partner--he is not much older 
than I am, but my former senior partner, one of the best trial lawyers 
in the State of Delaware, Sidney Balick--used to say: Keep your eye on 
the ball. When he talked to the jury, he started his summation: You 
have heard all this from the prosecutor, but I want you to keep your 
eye on the ball. The issue is not would you want to invite this person 
home for dinner. The issue is did this person commit the crime. Keep 
your eye on the ball.
  Here I would like you all to keep your eye on the ball. Listen to 
what my friends have to say, but keep your eye on the ball. Is this a 
person who will not apply Federal precedent as it relates to the death 
penalty, in particular? Because the implication will be, the assertion 
will be, she did not do it in Florida and, therefore, she will not do 
it as a Federal appeals court judge. In fact, the police; former 
attorneys general, Republican and Democrat; a Republican Senator; a 
Democratic Senator--all of whom support the death penalty, along with 
61 percent of the people of the State of Florida who had this issue 
aired, among others, not too long ago--all concluded that she does, 
has, and will.
  It is difficult for me to believe that all these folks can be wrong. 
In my view, most of the remaining questions about Justice Barkett's 
record may be answered by reference to the distinction between State 
judges interpreting State constitution and Federal judges applying 
Federal law.
  Let me illustrate by discussing two areas of criticism--privacy 
analysis and equal protection analysis. Justice Barkett has been 
criticized for some of her opinions, or opinions in which she has 
joined, that construed the constitutionality requirement of privacy 
overly generously, from the perspective of my friends who will 
criticize her. Regardless of the merits of these opinions, as a matter 
of Federal constitutional law, these cases, I think, have to be 
understood in the proper and legal context.
  These were decisioned arising under both Federal and State law. 
Justice Barkett reached her conclusions by applying the State 
constitution and State law. The people of Florida approved a privacy 
amendment to the Florida Constitution in 1980. Even former Judge Bork 
could not deny the existence of the right to privacy in the Florida 
Constitution. It is expressly stated.
  I spend time with my students. I teach a course in constitutional law 
at Widener Law School on separation of powers issues, trying to explain 
the distinction between, when the Founding Fathers came up with a Bill 
of Rights, how it comported with or did not comport with State 
constitutions.
  And when you go back and try to interpret the second amendment or the 
first amendment or the fifth amendment, what you do in trying to 
determine the original intent of the Founders--and granted the Bill of 
Rights was not ratified at the same time the Constitution was 
originally ratified, it came along later--but you go back and look what 
the State constitutions did to try to give meaning to the intent of the 
Framers, and it is interesting.
  Students sometimes are perplexed and surprised to realize that States 
have gone further than the Federal Government in protecting individual 
rights.
  Under our form of Government, our separated powers, separated among 
the three branches at the Federal level, between the Federal and State 
level, and between Government and individuals, there is the ability of 
States, and always has been, to grant greater protection. They cannot 
grant less protection since the incorporation doctrine, they cannot 
apply less protection than the Federal Government does, but they can 
apply greater protection. And the State of Florida, in its wisdom, made 
a judgment about the right of privacy. The people of Florida approved a 
privacy amendment to the Constitution of Florida in 1980.
  Let me get my glasses out to make sure I absolutely read that date. 
Yes, 1980. I was able to read that date without my glasses. But the 
Florida amendment was amended in 1980.
  That amendment provides, and I will quote it:

       Every natural person has the right to be let alone and free 
     from governmental intrusion into his private life.

  Now, we have, and I predict my distinguished friend from Utah and I 
will debate the concept embodied in that amendment all through the 
month of August and September and maybe July, June, whenever we get an 
appointment, because that is always a central issue of debate and a 
difference between my distinguished friend and I, whether the Federal 
Constitution embodies by implication such a right, an unenumerated 
right of privacy.
  But here I want my colleagues to understand when they come to debate 
this issue, this is not a Scalia debate, this is not a Bork debate, 
this is not a Kennedy debate about privacy, which was raised in every 
recent Supreme Court nomination. This is a different debate. This is 
black and white.
  As I said, even Judge Bork would have to acknowledge that there is a 
constitutional right of privacy enumerated in the Florida Constitution. 
It is an important point to keep in mind, I think.
  Unlike the Federal Constitution, it includes this expressed privacy 
guarantee. The drafters of the amendment, Florida legal scholars, and 
the entire Florida Supreme Court agree that this amendment was designed 
to be more expansive than the Federal right to privacy, as recognized 
by, and to the extent it has been recognized by, the U.S. Supreme 
Court. Nobody disagrees with that that I am aware of, even those who 
may have opposed the inclusion of that right of privacy in the Florida 
Constitution.
  It was this State right of privacy upon which Justice Barkett relied 
in finding that Florida's Constitution protected behavior that would 
not be protected under the Federal Constitution.
  Likewise, she has been criticized for opinions in which the Florida 
Supreme Court struck down State laws on the grounds that those laws 
were violative of equal protection guarantees.
  Let me put these opinions in context. In these equal protection 
cases, the Florida court struck down the laws in question based upon 
Florida law, not Federal law. Although the court made references in the 
opinions to the Florida Constitution, the precedent cited to support 
the court's conclusions were all Florida cases.
  Before the Judiciary Committee, Justice Barkett testified that 
Florida law requires a stronger legislative rationale than does the 
Federal Constitution when the legislature makes distinctions among 
people.
  And I know my distinguished colleague knows but the public may not 
have focused on it as much, what we mean by ``equal protection,'' when 
we talk about the equal protection clause, we are almost always, in the 
Federal context, talking about whether or not the law is able to 
constitutionally, whether legislators like us can get together and 
discriminate between and among the treatment of women as opposed to 
men, or blacks as opposed to whites, or Hispanics, or any 
categorization of people. And the overwhelming notion adopted by the 
American people, I think embodied in the l4th amendment, but there is 
disagreement about this among us, is that the law is the law and it 
should not be applied in a discriminatory manner. It should be applied 
equally.
  Now, in Florida, whatever disagreements my friend and I and others 
who will come and speak on this issue might have about how expansive 
the 14th amendment is, how expansive the equal protection clause of the 
U.S. Constitution is, there seems to be little doubt that the Florida 
Constitution is more expansive; that is, under Florida law and the 
Florida decisions, at least, Justice Barkett believes that the Florida 
court was applying a more stringent Florida standard.
  As this review of privacy cases and equal protection cases reveals, 
Justice Barkett, in some of these cases joined by a large majority of 
the Florida Supreme Court and, I might add, never alone, applied the 
law as called for in each case. When litigants raised both Federal and 
State constitutional claims, she resolved the cases under State law, 
where appropriate.
  Reasonable judges might disagree with her conclusions in one case or 
another, but it seems clear that she performed the job of judging with 
due prudence and respect for the applicable law, and the most 
controversial cases that is Florida law.
  For all these reasons, her high integrity, her unquestionable 
competence, her respect for precedent, I am pleased to support Rosemary 
Barkett's nomination for the eleventh circuit. Based on the standards 
this body has long applied to the court of appeals nominees, she 
deserves to be confirmed.
  Let me conclude this portion of my remarks, Madam President, by 
saying that someone's personal journey to this point of being 
considered is, in my opinion, often used as a cover to keep us from 
looking at their competence and how good they are. So I have not dwelt 
at all on what I will at a later time, the extraordinary character of 
this woman, the extraordinary gains she has made, the absolutely 
admirable and almost enviable familial ties she has with numerous 
brothers and sisters, having been born in Mexico, emigrating to the 
United States, having made her way through her first language to her 
new language to her present language, to all the impediments that were 
in her way, never having lost for a moment this incredible optimism she 
has; absolutely incredible optimism.
  I know it is overused and so I even hesitate to say it here, but talk 
about the American dream, talk about the personal qualities that 
Americans admire, talk about the story that says anything can be 
overcome, you have it all written in the journey of this woman's life 
to this point.
  But I have not gone into that because I think we need not even look 
at that to go by every objection as to why she should not be in the 
court. It is flatout integrity, commitment to your job, superior 
intellectual and educational credentials that qualify this woman to sit 
on this court at this moment in our history--or, I might add, any 
moment in our history.
  But I will return to speak to some of these issues later. I thank my 
colleagues for their indulgence and I now yield the floor to my 
distinguished friend and ranking member of the committee.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Madam President, I have really enjoyed listening to the 
distinguished Senator from Delaware, the chairman of the Judiciary 
Committee, explain his reasons for supporting this rather extraordinary 
woman.
  I want to say at the outset I do not think anybody would find fault 
with her as a person. She is a lovely person, a good person. I have a 
great deal of admiration for her life and what she has done with it. I 
like her personally very much. I have expressed that both in committee 
and outside of committee. So it is not a question of her 
individuality--she is a good person and she has proven that throughout 
all these years. I like her family. I have met many members of her 
family. I feel badly, in a sense, having to oppose this nomination 
because I do like her so much and I like her family so much.
  But let me just mention a few things. Senator Biden mentioned the 61 
percent vote down there in Florida, where she ran unopposed. That is an 
important issue. He mentioned the support of various people in Florida, 
including police organizations. There were plenty who were opposed to 
her, too. Those may be good points, but this is not an election we are 
talking about. This is not a forum for voting, in the sense of 
rubberstamping whatever the people of Florida did. More important, the 
argument that her 61 percent vote in Florida proves that she is very 
well qualified to be on the Federal Circuit Court of Appeals for the 
Eleventh Circuit, I think, is faulty. Let me begin by noting that 
success in a retention election, where a person is unopposed, may say 
something about a judge's skills as a politician but it often says 
little or nothing about a judge's ability as a judge.
  In addition, the standard for retaining a judge may understandably be 
much lower than the standard for elevating a judge to the Federal 
appellate bench. That is, the standard for retaining a judge in any 
State may be much lower than the standards for elevating a judge to the 
Federal bench. I will note that Chief Justice Barkett's supporters in 
the retention election emphasized that there should be a strong 
presumption in favor of retaining a sitting justice.
  Justice Barkett's supporters speak as though this 61 percent vote was 
a ringing endorsement. In fact, it was the second-lowest vote ever in a 
retention election in the State of Florida, for retaining a Florida 
Supreme Court Justice, even though, according to press reports, Chief 
Justice Barkett outspent those opposing her retention by a factor of 3 
to 1. Let me note that a justice in a retention election is not running 
against anybody. Yet she only got 61 percent of the vote and outspent 
her opponents 3 to 1. Let me say, voters vote only on whether or not to 
retain that justice in that Florida election.
  So what is remarkable is that 2 out of 5 Florida voters have 
sufficiently strong dislike for Justice Barkett's record that they, in 
effect, regarded any replacement for her as an improvement over her 
tenure on the court. That point has to be made because it is important.
  Somehow, when 2 out of 5 Americans voted for him, President Clinton 
claimed that he had a mandate. When 2 out of 5 Floridians voted against 
Justice Barkett, the White House considers their opposition 
insignificant. It was not insignificant, nor should that point be made 
as though we should rubberstamp this appointment because 61 percent, 
the second-lowest number in the history of Florida, voted to retain her 
in an election where she had no opponent other than people who were 
upset with her standards of judging.
  The Senate has an obligation under the Constitution to provide its 
independent advice and consent on this nomination. That means that we 
have to examine the nominee's record. Although she is a very fine 
person and a good person and a person I like, if you look at the 
record--I do not care who you are--you have to be concerned. To defer 
instead to the 1992 retention election would be nothing less than a 
dereliction of our constitutional duty. So do not raise that with me as 
though that is what we should do just because of that.
  Another argument the distinguished Senator from Delaware made, 
basically, is that Justice Barkett's role as a Federal appellate judge 
would be fundamentally different from her role as a State supreme court 
judge and that you cannot make judgments on the latter based on the 
former.
  That just is not true. This argument cannot be taken seriously. In 
the first place, the role of a State supreme court justice and the role 
of a Federal appellate court judge are identical, absolutely identical, 
in terms of their obligation to follow the U.S. Supreme Court precedent 
on issues involving Federal constitutional law. As I have discussed and 
shown at length in prior speeches on the floor, Justice Barkett has not 
been faithful to U.S. Supreme Court precedent while on the Florida 
supreme court. There is no reason to believe that she will be any more 
faithful to Supreme Court precedent once she reaches the Federal bench.
  Second, State court judging and Federal judging have a common core. 
At bottom, they turn on legal reasoning. A judge who shows excessive 
sympathy for criminals, as Justice Barkett does, or who engages in 
sloppy reasoning in one court, can be expected to display the same 
flaws on any other court. And that is one of the problems.
  Finally, Justice Barkett's supporters cannot have it both ways. They 
cannot claim on the one hand that her record as a State supreme court 
justice somehow shows that she would make a good Federal appellate 
judge, yet contend on the other that her record as a State supreme 
court justice cannot be used to show that she would be a poor Federal 
judge.
  I noticed in the discussion of the distinguished Senator from 
Delaware on this issue he did not cite many of her cases. In fact, I do 
not recall him citing one of her cases.
  On this matter of softness on crime, which pervades Justice Barkett's 
opinions, her opinions are filled with soft versions of judging. It 
should be noted President Clinton is meeting today with hundreds of 
police officers. This may make good public relations, but if the 
President continues to appoint judges who handcuff the police, then all 
of the President's anticrime rhetoric is just empty talk--just plain 
empty talk. Unfortunately, I am coming to the conclusion that most of 
his rhetoric on the issue is empty talk, especially when you notice he 
has cut prisons again. The last budget cut them $500 million plus. This 
budget cuts them $73 million. He has cut 1,500 positions--almost 1,600 
positions out of the FBI, Drug Enforcement Administration, Drug Task 
Force, prosecutors down at Justice; he has cut basic grants to the 
States--all at a time he is saying, ``I want my crime bill passed 
through the Senate and through the House,'' and meeting with all these 
police people today, very ironically while we are debating Justice 
Barkett's record.
  For those who think this is a debate over capital punishment, or who 
believe we are only raising the death penalty issue--they are important 
in her decisions, because you are going to find her death penalty 
approaches, or at least one, would completely outlaw the death penalty. 
It would completely make it impossible to ever implement it or enforce 
it. She would have to be a pretty poor justice not to go along with an 
awful lot of the opinions that upheld the death penalty--it used to be 
250, now it is down to 100, according to the Senator from Delaware; I 
am sure it is between 100 and 150--but you almost have to. Most of the 
decisions made by these people are decisions that are matter of course 
decisions. But it is where she gets down to the nitty-gritty and 
expresses her own opinion or opinions with regard to the death penalty 
that you will find that she is wanting.
  But it is not just the death penalty, which the media tends to make 
these debates turn on.
  That is important, and that is an important part of the opposition, 
but it is not the most important part.
  Upon review of her judicial record and of her testimony before the 
Judiciary Committee, I have to oppose this nomination, even though I 
like her, even though I would like to put her on the bench and even 
though I wish her well and even though I recognize the travails of her 
lifetime.
  I just do not think she should be a judge on the U.S. Court of 
Appeals for the Eleventh Circuit, and I do this with regret, as I say, 
because I like her and I consider her to be a fine person, and her 
family as well. But I do so with a firm view that her record 
establishes that she will substitute her own policy views for the 
written law and take too soft an approach to criminal law enforcement. 
At a time when we are awash in drugs, awash in crime, awash in all 
kinds of difficulties, I do not think we should be putting people on 
the bench who do not hold fealty to the law and who are not going to be 
tough on crime.
  In reaching this conclusion, I stress that no judicial nominee needs 
to agree with my reading of the law or any other Senator's reading in 
all or nearly all cases. But there just are too many cases, across too 
wide a range of subjects, where I believe that this nominee stepped 
well past the line of responsible judging. I and other Senators 
inquired about many of these cases at her hearing before the Senate 
Judiciary Committee. Incidentally, I notified Chief Justice Barkett in 
advance of the cases that would be the subject of inquiry that I 
intended to raise with her. I gave her time to look at them. I was not 
reassured by her testimony even though she had adequate time to look at 
them. Indeed, Chief Justice Barkett ultimately admitted that she 
overreached or was careless in a number of important opinions.
  For example, in her dissent in the University of Miami versus 
Echarte, Chief Justice Barkett voted to strike down statutory caps on 
noneconomic damages in medical malpractice cases. In addition to a 
variety of State law grounds, her dissent also relied on the Federal 
equal protection clause, and without citing any legal precedent or any 
Federal precedent, she asserted:

       I fail to see how singling out the most seriously injured 
     medical malpractice victims for less than full recovery bears 
     any rational relationship to the legislature's stated goal of 
     alleviating the financial crisis in the medical liability 
     insurance industry.

  In fact, the rational relationship between the means and the goal is 
self-evident and was clearly spelled out by the legislature. One might 
well disagree with caps on noneconomic damages as a policy matter. But 
Chief Justice Barkett's purported application of rational-basis review 
is a stark overreach and a flagrant misuse of the Federal equal 
protection clause. At her hearing, she acknowledged that she should not 
have relied on that clause.
  In another case, Shriner's Hospital versus Zrillic, the nominee again 
relied on the rational basis standard under the Federal equal 
protection clause--as well as on a variety of State law grounds--in 
again striking down a statute. In her opinion, she took the remarkable 
position that ``underinclusive or overinclusive classifications fail to 
meet even the minimal standards of the rational basis test.'' This 
distortion of rational basis review into something akin to strict 
scrutiny clearly flies in the face of equal protection principles set 
forth in nearly 50 years of U.S. Supreme Court precedent.
  Now, neither of these cases, though extremely important cases, are 
death penalty cases, and I hope the media understands that, because 
this type of judging is pervasive and could cross all kinds of 
constitutional lines.
  Justice Barkett's misreliance on the Federal equal protection clause 
in those two cases is all the more striking to me in light of her 
partial dissent in Foster versus State. There, in seeking to rely on a 
theory of statistical racial discrimination in a challenge to the death 
penalty, she expressly acknowledged that the Federal equal protection 
clause was unavailable to her in light of a Supreme Court decision, 
McCleskey versus Kemp, which rejected her view under the Constitution.
  McCleskey versus Kemp squarely rejected her position and her view 
under the U.S. Constitution. She admits that. Accordingly, in her 
Foster opinion, she only relied on the Florida equal protection clause. 
Yet she did not recognize the error of relying on the Federal 
Constitution when she wrote her opinions in Echarte and Zrillic. Her 
failure to appreciate in these two opinions that a Supreme Court 
precedent foreclosed her reliance on the U.S. Constitution deeply 
troubles me. Supreme Court precedent governs lower courts not only when 
the claim presented is identical to that previously rejected by the 
Supreme Court but also when the basic doctrinal principles enunciated 
by the Supreme Court are applicable to a case.
  The failure to appreciate this opens the door to judicial activism--a 
door, I regret to add, I believe this nominee has repeatedly walked 
through.
  I do not think anybody doubts that I have been as fair to judicial 
nominees through my history in the Senate of 18 years as anybody could 
be. I have certainly bent over backwards to try to help any judge and 
certainly any President who has appointed a judge. So I reluctantly 
oppose this person for this particular position but not because I am 
unsure of what I am talking about.
  I also find Chief Justice Barkett's reliance on Federal substantive 
due process very troubling. In State versus Saiez, she wrote an opinion 
holding that a State law criminalizing the possession of embossing 
machines capable of counterfeiting credit cards ``violated substantive 
due process under the 14th amendment to the U.S. Constitution.''
  Briefly, let me just say here this expansive, substantive use of the 
due process clause is insupportable under Supreme Court precedent. The 
nominee testified that she was really relying on State due process 
grounds and her inclusion of the Federal due process clause was, to put 
it in her words, ``careless.''
  Now, I can accept that, on occasion, a sitting judge may wish to 
phrase an opinion differently, in hindsight, or even believe that he or 
she got an opinion wrong. But tossing into her opinion the Federal 
equal protection clause and the Federal due process clause, on 
occasions where they very clearly do not belong, raises concerns that I 
do not find assuaged by testimony acknowledging this was erroneous. 
These two clauses are among the most powerful tools a judge can use, if 
so inclined, to legislate from the bench--or put it another way, to be 
a ``superlegislator'' in black robe on the bench.
  In the case of the equal protection clause, virtually every law 
classifies people into at least two classes on some basis. Congress 
might enact limits on medical or product liability, which are subject 
to equal protection analysis as a component of the due process clause 
of the fifth amendment. States or Congress may seek to remove 
recipients from welfare rolls after a time limit of 2 years. A 
misreliance of Federal equal protection in reviewing these laws would 
lead to their erroneous invalidation. In the case of the due process 
clause, there is a tendency by some judges and commentators to read 
almost anything into it. This it all the more troubling because the 
misuse of these two clauses is not subject to limiting principles of 
judging but only to the whim of the judge. So they can really be 
misused.
  There will be many cases of first impression before the eleventh 
circuit court of appeals, the court to which she aspires. There will 
also be many times when precedents must be construed, and they may be 
construed broadly or narrowly. Most appellate decisions are not 
reviewed by the Supreme Court. These errors then are not merely 
technical or academic. They could be errors that could stand for years 
and hurt an awful lot of people because of the misjudging by people who 
use the logic that this judge has.
  My concern about the nominee's approach to judging is heightened by 
other cases. For example, in a redistricting case [In re 
Constitutionality of Senate Joint Resolution 2G], the Florida Supreme 
Court selected from among six different modifications to a state 
legislative redistricting plan. Writing ``dubitante,'' Justice Barkett 
stated that she was--

     loath to agree to any of the convoluted plans submitted under 
     these hurried circumstances * * * If I had to choose only 
     among those presented, however, I would choose the plan 
     submitted by the NAACP simply because this is the 
     organization that has traditionally represented and promoted 
     the position that advances all minority interests.

  At her hearing, Justice Barkett recognized that this opinion gave a 
clear appearance of partiality, as it expressed a preference for a 
party based on who the party was rather than the merits of that party's 
argument. She stated that she wished she had written her opinion 
differently.
  In any case, I am willing to give the benefit of the doubt to a 
nominee. But there are just too many instances in Justice Barkett's 
judicial record--the principal basis for evaluating her nomination--of 
overreaching, and on very significant issues, to leave me comfortable 
with elevating her to the Eleventh circuit.
  There are many other cases that concern me. For example, in Stall 
versus State, Chief Justice Barkett joined a dissent striking down a 
state obscenity statute on State law grounds. She also wrote separately 
in an opinion that, again, is sweeping and overbroad.
  There are several problems with this dissent.
  First, her statement that, ``A basic legal problem with the 
criminalization of obscenity is that it cannot be defined'' is flatly 
contradicted by the U.S. Supreme Court's landmark opinion in Miller v. 
California [413 U.S. 15 (1973)], which Chief Justice Barkett does not 
even acknowledge, much less discuss.
  The fact is that obscenity can be defined, and it has been defined by 
the court.
  Second, she sweepingly claims that an obscenity law such as the one 
in Florida violates ``every principle of notice and due process in our 
society''--not, I might add, a statement limited to State law 
principles, and, again, contradicted by the Miller decision.
  Third, Chief Justice Barkett's opinion mischaracterizes the Florida 
law in the case: that law does not turn on the ``subjective'' view of a 
handful of law enforcement people and jurors or judges, as she 
incorrectly suggests. The Florida law incorporates the standard set 
forth by the U.S. Supreme Court in Miller. The law bans materials that, 
judged by contemporary community standards, appeal to the prurient 
interest, that depict or describe, in a patently offensive way, 
specifically defined sexual conduct, and that lack serious literary, 
artistic, political, or scientific value. Thus, the role of jurors or 
judges under this law would not be to make their own ``subjective 
definition'' of what is obscene, but rather to discern and apply 
existing community standards.
  Incidentally, while I am pleased that she voted to uphold a Florida 
child pornography statute in a different case, I make two observations. 
First, this does not mitigate her sweeping views about the more general 
subject of obscenity. Second, contrary to her testimony, the child 
pornography statute is a different statute from the one she voted to 
strike down in Stall.
  I have all of these concerns, and have yet to reach the issue of 
criminal law enforcement generally and the issue of the death penalty 
specifically. There is much to say on these subjects.
  With respect to criminal law issues aside from the death penalty, I 
believe that the nominee has too often erroneously come down on the 
side of lawbreakers and against police officers and law enforcement. 
She has exhibited an unduly restrictive view of the fourth amendment 
that would handcuff the police, especially with regard to controlling 
drugs. [See, e.g., Bostick v. State, 554 So.2d 1153 (Fla. 1989), rev'd, 
111 S.Ct. 2382 (1991), on remand, 593 So.2d 494 (Fa. 1992); State v. 
Riley, 511 So.2d 282 (Fla. 1987), rev'd, 488 U.S. 445 (1989), on 
remand, 549 So.2d 673 (Fla. 1989); Cross v. State, 560 So.2d 228 (Fla. 
1990); Sarantopoulos v. State (Fla. Dec 9, 1993)].
  For example, in Bostick, a case involving cocaine trafficking, 
Justice Barkett adopted an across-the-board, per se ban on passenger 
searches on intercity buses even though Supreme Court precedent clearly 
called for an analysis of a search's legality based on all of the 
particular circumstances of the search. Justice Barkett even saw fit to 
compare the police search method at issue to methods used by ``Nazi 
Germany, Soviet Russia, and Communist Cuba.'' The U.S. Supreme Court 
reversed her.
  The U.S. Supreme Court also reversed her in the Riley case, where her 
misapplication of precedent would have led to dismissal of charges 
against criminals growing marijuana. In yet another drug case, the 
Court criticized her overbroad reading of precedent.
  In her dissent in a case called Cross, Justice Barkett refused to 
credit the testimony of police officers that they had seen cocaine 
packaged in the same peculiar way on hundreds of occasions in their 
combined 20 years of law enforcement. In so doing, she ignored Florida 
precedent cited by the majority that provided that the observation of 
an experienced policeman of circumstances associated with drugs could 
provide probable cause for an arrest.
  In another dissent, she ignored settled principles enunciated in U.S. 
Supreme Court precedent in finding that someone who was growing 
marijuana in his backyard had his Fourth Amendment rights violated when 
police, acting on a tip, looked over a six-foot fence, spotted the 
marijuana plants and then obtained a search warrant. Rather than 
inquiring whether the defendant had an expectation of privacy that was 
objectively reasonable, Chief Justice Barkett simply displayed her 
personal opposition toward what she regarded as overly intrusive law 
enforcement.
  That is amazing because we just heard the distinguished Senator from 
Delaware talk about how important this law of privacy is that is not 
enumerated right in the Constitution, he claims. Normally, when 
liberals talk about privacy, they are talking about abortion, they are 
talking about homosexual rights, they are talking about obscenity and 
pornography and the rights to them, and any number of other things, 
mainly dealing with sexual aberrations.
  (Mr. GRAHAM assumed the chair.)
  Mr. HATCH. But in this case, she held that the privacy right to stop 
the police operating on a tip from looking over a fence making sure 
there was marijuana there and then going and getting a lawful search 
warrant. That bothers me quite a bit.
  Justice Barkett has also written opinions striking down narrowly 
drawn laws that ban loitering for the purpose of prostitution and drug 
dealing. Think about that. These opinions are badly flawed and misapply 
precedent. Moreover, they seriously disable communities from preventing 
harmful crime.
  Keep in mind as I am discussing these matters that she is appointed 
by a President who is claiming that he is going to be as tough on crime 
as anybody in history while at the same time his Office of Management 
and Budget is cutting criminal law enforcement by leaps and bounds and 
at the same time he is appointing judges like this one to higher 
positions in the Federal court system where they can decide opinions 
that may never be decided by the Supreme Court to become followed by 
other circuits and by other people who at least in this case--and I 
believe we will find others--are really soft on crime. This bothers me 
a lot.
  In my view, there are too many other instances where she 
unjustifiably construed criminal statutes in favor of criminals. [See, 
e.g., State v. Bivona, 460 So.2d 469 (Fla. DCA 1984), rev'd, 496 So.2d 
130 (Fla. 1986); Gayman v. State, 616 So.2d 17 (Fla. 1993).]
  With regard to the death penalty, I appreciate that the nominee has 
voted to uphold the death penalty a number of times. And as the 
distinguished Senator from Delaware has said, I would expect as much in 
a state with a lawful death penalty and, unfortunately, a great deal of 
violent crime. But as I stated at Justice Barkett's hearing, a proper 
inquiry into a nominee's judicial outlook on the death penalty is not 
ended merely by noting that the nominee has upheld the death penalty in 
a number of cases, where even the most activist of judges cannot avoid 
its imposition.
  If a nominee exhibits a clear tendency to strain for unconvincing 
escapes from the imposition of the death penalty, as this one does, in 
cases where that penalty is appropriate, then that raises concerns in 
my mind about the nominee's fidelity to the law, no matter how many 
times the nominee may have upheld the death penalty in other cases.
  From my review of Justice Barkett's record, I have concluded that 
Justice Barkett clearly exhibits such a tendency.
  Let me further note at this point that one of Justice Barkett's 
dissenting opinions would render the death penalty virtually 
unenforceable, unless imposed on the basis of racial quotas. Her 
partial dissent in Foster versus State, had it been the law in Florida 
when she joined the Florida Supreme Court, would likely have led to a 
different outcome in many, if not virtually all, of the cases where she 
voted to uphold the death penalty. Indeed, the theory she embraced in 
Foster, until its rejection by the Supreme Court in 1987, had become a 
principal weapon in the anti-death-penalty movement's arsenal and will 
be a principal weapon in the anti-death-penalty arsenal of those 
arguing against the death penalty in the House of Representatives this 
week, and probably next week, as they discuss the crime bill.
  It is all right to differ on whether you believe or disbelieve in the 
death penalty. People have sincerely held beliefs there, I understand, 
and I do not have any problem with people in the legislative bodies 
debating whether or not we should impose the death penalty in American 
constitutional and criminal law. But I do have problems where it is 
imposed and is currently the state of the law of the land, where judges 
like Justice Barkett find every excuse they can to try not to impose it 
and, in this particular case, would impose it only by racial quotas. 
That bothers me.
  Overall, I believe Justice Barkett, in reviewing death penalty 
sentences, views aggravating circumstances much too narrowly; construes 
mitigating circumstances much too broadly; creates unjustified 
categorical exclusions from death penalty eligibility; subjects the 
death penalty to racial statistical analysis that would paralyze its 
implementation, as I have just discussed; and creates various 
procedural anomalies.
  Let me mention two of the many cases that concern me. They were 
mentioned in the hearings.
  Dougan versus State was a 1992 Florida Supreme Court case. Dougan was 
the leader of a group that called itself the ``Black Liberation Army,'' 
which, according to the trial judge, had as its ``apparent sole 
purpose''--this is the trial judge speaking--``to indiscriminately kill 
white people and thus start a revolution and a race war.''
  One evening in 1974, Dougan and four other members of his group, 
armed with a pistol and a knife, went in search of victims. They picked 
up a white hitchhiker, Steven Orlando.
  I am quoting:

       They picked up a white hitchhiker, Steve Orlando, drove him 
     to an isolated trash dump, stabbed him repeatedly, and threw 
     him to the ground.

  Continuing:

       As Orlando writhed in pain and begged for his life, Dougan 
     put his foot on Orlando's head and shot him twice--once in 
     the chest and once in the ear--killing him instantly. 
     Subsequent to the murder, Dougan made several tape recordings 
     bragging about the murder, and mailed them to the victim's 
     mother, as well as to the media.
       The following excerpt from one of the tapes aptly 
     illustrates the content:
       ``He was stabbed in the back, in the chest and the stomach; 
     ah, it was beautiful. You should have seen it. Ah, I enjoyed 
     every minute of it. I loved watching the blood gush from his 
     eyes.''

  The Florida Supreme Court upheld the death penalty for Dougan, as it 
should have. Justice Barkett and another justice joined a remarkable 
and very disturbing dissent by Justice McDonald in which she voted to 
reduce the death penalty to life imprisonment, with eligibility for 
parole in 25 years.
  I rarely fault a nominee about an opinion the nominee has joined 
rather than written. I do not hold a nominee to every word or phrase in 
an opinion he or she joins. There is an outlook which pervades this 
dissenting opinion, however, which is so striking and disturbing that I 
believe it is appropriate to consider that outlook in evaluating this 
nomination. This is especially so in light of the fact that in many 
other cases Justice Barkett has written separately, or merely stated 
that she concurred in, or dissented from, the result, when another 
opinion had not suited her.
  Normally, I would summarize this dissent, but I do not want anyone 
listening to think that I am distorting it. Accordingly, I am going to 
read verbatim excerpts from the dissent in which she joined:

       This case is not simply a homicide case, it is also a 
     social awareness case. Wrongly, but rightly in the eyes of 
     Dougan, this killing was effectuated to focus attention on a 
     chronic and pervasive illness of racial discrimination and of 
     hurt, sorrow, and rejection.

  I am sorry, but I have to interpolate here for a minute. Tell that to 
the victim's mother to whom he sent that tape, saying how much he 
enjoyed seeing the blood gush from her son's eyes.
  Continuing on in the direct quote from the dissent, and that is 
remarkable language:

       This case is not simply a homicide case, it is also a 
     social awareness case. Wrongly, but rightly in the eyes of 
     Dougan--

  That is the murderer--

     this killing was effectuated to focus attention on a chronic 
     and pervasive illness of racial discrimination and of hurt, 
     sorrow, and rejection. Throughout Dougan's life, his 
     resentment to bias and prejudice festered. His impatience for 
     change, for understanding, for reconciliation, matured--

  Note the word ``matured''--

     to taking the illogical and drastic action of murder. His 
     frustrations, his anger, and--

  Get this--

     his obsession of injustice overcame reason. The victim was a 
     symbolic representation of the class causing the perceived 
     injustices.

  Let me go on:

       To some extent, Dougan's emotions were parallel to that of 
     a spouse disenchanted with marriage, full of discord and 
     disharmony which, because of frustration or rejection, 
     culminates in homicide. We seldom uphold a death penalty 
     involving husbands and wives, or lovers, yet the emotions of 
     that hate-love circumstance are somewhat akin to those which 
     existed in this case.
       Such a sentence reduction should aid in an understanding 
     and at least a partial reconciliation of the wounds arising 
     from discordant racial relations that have permeated our 
     society. To a large extent, it was this disease of racial 
     bias and discrimination that infected an otherwise honorable 
     person and contributed to the perpetration of the most 
     horrible of crimes. An approval of the death penalty would 
     exacerbate rather than heal those wounds still affecting a 
     large segment of our society.

  This is a man who was trying to foment revolution by going out and 
finding whites and killing them. And she went along with this dissent. 
This opinion reeks of moral relativism and excuse-making that I find 
shocking and unacceptable.
  Again, as much as I personally like Chief Justice Barkett, I find it 
disturbing that President Clinton would nominate someone to a judgeship 
who would apply these views to judicial decisions.
  In the October 11, 1992, Sunshine magazine, the following reactions 
to this Dougan dissent are quoted:

       ``How can they compare a cold-blooded, premeditated, 
     torturous crime that's motivated by racial hate and equate 
     that to the emotional circumstances in domestic murders?'' 
     asks prosecutor Chuck Morton, himself a black man, after 
     rereading the Dougan case.
       Adds Tallahassee prosecutor Ray Markey: ``To say that this 
     white victim was a sacrificial lamb and call it a social 
     awareness case--that's scary.''

  The Dougan majority had this to say in response to the dissent that 
Justice Barkett joined:

       We disagree with the dissent that this pitiless murder 
     should be equated with the emotional circumstances often 
     existent in homicides among spouses. While Dougan may have 
     deluded himself into thinking murder justified, there are 
     certain rules by which every civilized society must live. One 
     of these rules must be that no one may take the life of 
     another indiscriminately, regardless of what that person may 
     perceive as a justification.
       Our review must be neutral and objective. This Court 
     recently upheld the death penalty in the indiscriminate 
     killing of two blacks by a white defendant. The circumstances 
     of this case merit equal punishment. To hold that death is 
     disproportionate here would lead to the conclusion that the 
     person who put the bomb in the airplane that exploded over 
     Lockerbie, Scotland, or any other terrorist killer should not 
     be sentenced to death if the crimes were motivated by 
     deepseated philosophical or religious justifications.

  Let me explain why the general attitude and outlook adopted by 
Justice Barkett in that dissent concern me so much. The approach taken 
in that dissent is certainly applicable to others besides Dougan, 
including criminals of all races. Let me note that we have many cases 
in our country of racially motivated, disgusting, violent crimes 
against racial minorities. I do not view the perpetrators of such 
violence as worthy of a lesser penalty on account of their backgrounds 
or personal histories either.
  If a person of any race, ethnic background, or social class 
considering violent or other crimes comes to believe that the judicial 
system views past mistreatment or discrimination against them as 
mitigating the seriousness of the crimes they commit or the penalties 
they face, I believe you undermine the principle of neutral justice and 
seriously reduce the deterrent value of the law. You create, frankly, 
an environment or atmosphere of permissiveness if these kinds of 
reasons can be used to justify lesser sentences. And I am not only 
talking about murder cases, such as the recent Colin Ferguson case on a 
Long Island commuter train. I mean other crimes as well, assault, 
robbery, carjackings. Do not view this as just a murder case or just a 
capital punishment matter or a death penalty matter. It is a lot more 
than that.
  Before Senators cast their votes on this nominee, they should read 
the opinions in this Dougan case, along with any other opinions they 
deem relevant.
  In another case, LeCroy v. State [533 So.2d 750 (Fla. 1988)], the 
Florida Supreme Court, by a vote of six to one, affirmed a death 
sentence for two brutal first-degree murders by LeCroy, who was 17 
years and ten months old when he committed the murders. The court 
noted, among other things, that the sentencing judge gave great weight 
to LeCroy's youth but found him mentally and emotionally mature. It 
also noted that Florida statutes clearly provided for some decades that 
17-year-olds charged with capital crimes should be punished as adults. 
Construing U.S. Supreme Court precedent, it ruled that there was no 
constitutional bar to the imposition of the death penalty on those who 
were 17 at the time of the capital offense.
  In her lone dissent, Justice Barkett concluded that the eighth 
amendment of the Federal Constitution prohibited Florida from executing 
those who were under 18 at the time of the crime. Reaching out to 
overturn this death sentence seems to be another clear instance of the 
nominee injecting her own policy preferences for the law because that 
is not what the Florida law was. It is an unfortunate fact that 16 and 
17-year-olds are committing the most vicious of adult crimes, including 
much-noted murders of tourists in Florida and elsewhere around this 
country. If a State wishes to treat them as adults when they commit 
such crimes, then the substitution of a judge's personal views for the 
legislature's enactment under Supreme Court precedent is clearly wrong. 
Not surprisingly, the U.S. Supreme Court later confirmed that it was 
the majority in LeCroy, rather than Justice Barkett, who had correctly 
read the Federal Constitution. That is in the Stanford versus Kentucky 
case.
  I have many other concerns about this nominee--including, for 
example, her openness to pervasive quotas--and many other opinions of 
hers that trouble me. These concerns are outlined in some detail in 
three memoranda on Justice Barkett's cases that I attached to my March 
22 floor statement on this nomination. I urge my colleagues to review 
those memoranda.
  Some may claim that those of us who have concerns over this 
nomination have focused on a relatively small number of cases and that 
this is not an appropriate way to evaluate the nominee. I have a three-
part response to this concern.
  First, a large number of cases of any appellate court are, frankly, 
routine, and I would expect that virtually all judges would rule 
unobjectionably in most cases before them.
  Second, and more importantly, if a small number of cases gives rise 
to large concerns, it is appropriate to base a vote on those cases. For 
example, the flagrant misuse of the Federal equal protection clause and 
the Federal due process clause may have occurred in just a handful of 
cases. But these two constitutional provisions are far too powerful, 
far too open to picking and choosing among democratically enacted 
statutes based on the policy preferences of a judge, for me to be much 
comforted by unobjectionable decisions in numerous other, routine 
cases. A single dissent that would sweepingly invalidate obscenity 
laws, notwithstanding clear U.S. Supreme Court precedent to the 
contrary, is tremendously significant for what it says about a 
nominee's legal outlook in a very important area of law. And it gives 
rise to doubts about whether the nominee will properly apply that 
Supreme Court precedent, especially in light of other opinions that 
give cause for the same concern in other contexts. A series of search 
and seizure opinions, improperly hamstringing the police in significant 
ways--especially in the war on drugs--has an importance beyond the mere 
number of these cases. An opinion, like her partial dissent in Foster, 
that would paralyze enforcement of the death penalty counts more than 
scores of routine death penalty cases. Joinder in an opinion like the 
Dougan dissent speaks volumes about a nominee's outlook on crime and 
personal responsibility, and you cannot just limit it to the death 
penalty.
  I could go on and on, but this leads me to my third point:
  The concerns about this nominee arise from more than a handful of 
cases, and they arise across numerous areas of the law, not just the 
death penalty, although that is important as well.
  I therefore have concluded with regret that I cannot in good 
conscience support this nomination.
  I will close by noting that all of the tough-on-crime rhetoric the 
President is serving up these days means less than his actions, 
including selection of judges. Placing more police officers on the 
street will avail us little if judges hamstring them in their work and 
hamstring them in their constitutional duties; if these judges construe 
our criminal laws in an unduly narrow fashion that will hamstring 
criminal law enforcement; or if they sentence criminals they do convict 
with unwarranted sympathy for the criminal, which will hamstring 
Federal criminal law enforcement and frankly law enforcement across the 
country. And in this judge's case that is what she has done and has a 
propensity to do and I believe will do if she is placed on the eleventh 
circuit court of appeals.
  So I am extremely concerned about putting judges like this on the 
higher courts of the Federal courts of this land where they have 
lifetime tenure, where they can do whatever they want to, where they 
can allow all the emotional predilections to take over and where most 
of their cases are not going to be heard by the Supreme Court because 
the Supreme Court can only hear about 100 or 200 cases a year and where 
other judges can start to follow this type of soft-headed, soft-on-
crime judicial analysis. So I am very concerned about it.
  Again, I will close by saying that I like this person as a human 
being. She is a good person. She came up the hard way. She has a good 
family. I like them. I grieve having to make these points, but I have 
to place my responsibilities as a person who loves and upholds the 
Constitution above my personal likes or predilections and frankly ahead 
of my likes or dislikes.
  In this case, I like this person, but I do not believe that she has 
exhibited the type of judicial analysis that justifies appointing her 
for this lifetime position in this very, very important circuit court 
of appeals under these circumstances.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The absence of a quorum having been suggested, 
the clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________