[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 Senate continued with the consideration of the nomination.
  Mr. THURMOND. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. I yield such time as the distinguished Senator may need.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. THURMOND. Mr. President, I rise today to speak on the nomination 
of Justice Rosemary Barkett to serve on the U.S. Court of Appeals for 
the Eleventh Circuit.
  During her courtesy call to my office and her nomination hearing, I 
found Justice Barkett to be an engaging and talented individual. 
However, I cannot support her nomination to serve on the eleventh 
circuit.
  I have serious concerns with a number of her opinions as a Florida 
Supreme Court Justice. Her responses during the nomination hearing did 
not alleviate my concerns regarding her decision making process in 
constitutional law, particularly in capital cases, criminal law, and 
the equal protection clause.
  My concerns rise in a number of areas--in capital cases and others--
where she dissented from the majority and engaged in result-oriented 
jurisprudence. Her consistent pattern of judicial activism was 
influential in my decision to oppose her nomination to serve on the 
eleventh circuit.
  For example, she narrowly construed aggravating factors time and time 
again which would prohibit imposition of a death sentence if her 
opinion had been adopted. In Cruse versus State, the defendant went on 
a brutal and calculated shooting spree which left six people dead, 
including two police officers, and 10 wounded. By a 6-to-1 vote the 
Florida Supreme Court affirmed the convictions and death sentences 
given to the defendant, Cruse. In her lone dissent, Justice Barkett 
voted to reverse the convictions and believed in any event that the 
death sentence was not appropriate for Cruse. Justice Barkett did not 
believe that the brutal murder of the two police officers met the cold-
calculated-and-premeditated aggravator requirement. This was her view 
despite evidence that Cruse had loaded his car with a rifle, a shotgun, 
a pistol and 180 rounds of ammunition, and drove to a shopping center 
where he killed two shoppers and wounded a third. When approached by a 
police officer, Cruse inserted a new clip into his rifle and fired 
eight times into the car, killing Officer Grogan. Then Cruse wounded 
another police officer, searched out this wounded man in a parking lot, 
found him and killed him with several more shots. It was for the murder 
of these two gallant policemen that the trial court imposed the death 
penalty and that Justice Barkett would reverse for lack of aggravating 
factors.
  In another case Hodges versus State, Hodges was convicted of killing 
a 20-year-old clerk who had previously complained of indecent exposure 
by Hodges. The Florida Supreme Court affirmed Hodges conviction and 
death sentence by a 6-to-1 vote. In her lone dissent to overturn the 
death penalty, Justice Barkett again gave what I believe was a strained 
and narrow construction of the aggravating factors involved in the 
killing. At her nomination hearing, Justice Barkett claimed that her 
dissent followed Cherry versus State, even though she did not cite that 
case in her opinion in the Hodges case. In any event, the Cherry 
opinion also cited precedent which would be interpreted as favorable to 
the prosecution in the Hodges case concerning aggravating factors 
counted separately where they relate to ``separate analytical 
concepts.''
  These are but two examples of Justice Barkett's approach in a number 
of capital cases. It is my belief that Justice Barkett has broadly 
construed plain statutes and case law to avoid imposition of the death 
penalty.
  Also, Justice Barkett has invoked the Federal equal protection and 
Federal substantive due process clauses in cases where they need not be 
used. In fact, at her hearing, Justice Barkett conceded that she 
misused the Federal equal protection clause in her dissent in 
University of Miami versus Echarte. Senator Hatch has adequately 
addressed the cavalier manner in which the Federal equal protection and 
Federal substantive due process clauses have been used in Justice 
Barkett's opinions. I urge my colleagues to review Senator Hatch's 
remarks which are printed in the March 22, 1993 Congressional Record on 
page S3380.
  Mr. President, there are other areas where Justice Barkett's opinions 
give me concerns. Particularly in the area of criminal law where I see 
a pattern of opinions which would restrict law enforcement in their 
fight against drugs and violent crime. I believe that her 
interpretation of the fourth amendment would unnecessarily retard the 
legitimate and reasonable efforts by law enforcement as they work to 
rid our communities of drug dealing and violent crime.
  In conclusion, Mr. President, I give much deference to the President 
in choosing a nominee to fill vacancies in the Federal courts. However, 
I must rely on my own judgment as the Senate exercises its advice and 
consent responsibility under the Constitution when reviewing these 
nominees. Justice Barkett is a fine woman but I firmly believe that her 
record establishes a precedent of judicial activism which is not 
advisable on such an important court as the court of appeals for the 
eleventh circuit.
  President Clinton has denounced the growing wave of violent crime 
across the Nation and clearly the American people deserve our most 
sincere efforts in fighting crime. Federal judges have an important 
role in maintaining a peaceable society while ensuring that 
constitutional protections are not ignored in the process. Yet, I 
believe that this particular nominee submitted by President Clinton 
would be too soft on crime, hamper the efforts of law enforcement, and 
substitute her own policy views for the written law.
  I encourage my colleagues to review the hearing transcript and study 
the opinions of Justice Barkett for themselves. In the end, I believe 
we will reach the same conclusion.
  I yield the floor.
  Mr. President, I yield the floor.
  Mr. HEFLIN addressed the Chair.
  The PRESIDING OFFICER (Mr. Dorgan). The Chair recognizes Senator 
Heflin.
  Mr. HEFLIN. Mr. President, I will vote to confirm the nomination of 
Florida Chief Justice Rosemary Barkett for a seat on the U.S. Court of 
Appeals for the Eleventh Circuit. Having reviewed Justice Barkett's 
overall record--I emphasize ``overall record''--as well as her 
responses to questions asked of her at her confirmation hearing before 
this committee, I believe that Justice Barkett possesses all of the 
necessary qualities to warrant her confirmation to this distinguished 
appellate court which comprises the States of Florida, Georgia, and 
Alabama.
  I am convinced that she possesses the intelligence, integrity, and 
temperament necessary to be a fair and impartial judge. It appears to 
me that her overall record demonstrates that the vast majority of her 
judicial decisions are within the judicial mainstream and reflect that 
she will attempt to faithfully apply precedent established by the U.S. 
Supreme Court.
  Justice Barkett has been a trial judge and an appellate judge for 
over 15 years in the State of Florida, and she has the full support of 
both Florida Senators, as well as its distinguished Governor Lawton 
Childs who was a former member of this body. Furthermore, she has been 
endorsed by a vast number of newspapers and organizations within her 
State and throughout the Nation. Most of these State newspapers have 
even gone so far as to say that Justice Barkett is ``hardly soft on 
crime.'' In a retention election in the State of Florida in 1992, she 
won reelection to her post by over 60 percent of the total vote from 
the people of the State of Florida. The American Bar Association has 
given Justice Barkett its highest rating of being well qualified.

  I do acknowledge that there are some philosophical matters in which 
Justice Barkett and I may differ. The confirmation hearing record 
before the committee demonstrates a troubling aspect that State courts 
can often encounter when following Supreme Court requirements in death 
penalty cases regarding the weighing of mitigating versus aggravating 
factors. While I might have taken a different position on some of the 
individual cases discussed at her hearing, I respect her judgment in 
these specific cases as she attempted to apply Supreme Court precedent 
as faithfully as possible.
  I agree that fine philosophical lines can often be drawn when trying 
to balance the legal rights of a defendant with the Government's 
interest in punishing an individual for a particular crime. The key to 
being a good judge, in my opinion, is the ability of that judge not to 
let his or her personal opinions outweigh his or her diligence in 
seeking a correct interpretation of precedent handed down by a higher 
court. Justice Barkett's record has displayed this ability.
  In reviewing her hearing record, I particularly noted a statement 
that she made to Chairman Biden in this regard in which she said, and I 
quote, ``And I neither flinch from applying it when the death penalty 
is called for, nor do I flinch from vacating it when I think the law 
requires it.'' Justice Barkett has voted to enforce the death penalty 
in cases that involved at least 125 individuals, and while I know there 
may be some disagreement on that figure I do not think it really makes 
any difference what the figure is, if it has been applied in a manner 
of say, 60, 70, 80, or 100.
  I think it does demonstrate that she will not flinch from her duties 
to make decisions in these difficult areas of the law when necessary. I 
will, therefore, vote in favor of Justice Barkett's nomination for a 
seat on the U.S. court of appeals for the eleventh circuit.
  Mr. President, I yield the floor.
  Mr. GRAHAM addressed the Chair.
  The PRESIDING OFFICER. The Senator from Florida is recognized.
  Mr. GRAHAM. Mr. President, I also rise to support the nomination of 
Rosemary Barkett as a member of the eleventh circuit court of appeals. 
I do so for a variety of reasons. First, I do so from personal 
knowledge.
  I have known Ms. Barkett for the better part of 15 years. She is an 
outstanding human being. She would bring to this court a unique and 
valuable personal set of life experiences and the values formed from 
those life experiences.
  I believe that in a collegial court, a court of multiple judges, it 
is valuable to have a diversity of backgrounds so that the full 
experience of the American people can be brought to bear in rendering 
judicial opinions.
  Rosemary Barkett has a unique personal background. Her parents were 
immigrants from the area of Syria and Lebanon. They sought to come to 
the United States of America, but at the same time, they were unable to 
secure the legal right to enter this country because of limitations in 
our immigration law. So they migrated to Mexico, and it was in Mexico 
that Rosemary Barkett was born. While still a child, her family was 
able to realize its ambition and come to the United States. She and her 
parents and siblings migrated to the United States, eventually settling 
in the State of Florida.
  Ms. Barkett grew up in a very religious family and decided at an 
early age to commit her life to one of religious service and thus 
became a nun in the Roman Catholic Church. As such, she served in a 
variety of positions, particularly as teacher. As a person in her late 
twenties, she decided that there were other areas in which she could 
render service to the people, particularly through the law. And so as 
an adult, she left her religious order and went to the University of 
Florida to attend law school. She graduated at the top of her class in 
law school and returned to her home in West Palm Beach, FL to engage in 
the private practice of law.
  While I was Governor, a vacancy occurred in the circuit court, the 
basic trial court, in her community. Under Florida law, there is a 
rigorous process by which judicial vacancies are filled. A judicial 
nominating commission made up of three persons appointed by the Florida 
bar among the legal profession, three persons appointed by the 
Governor, and three persons selected by those six, who have the 
responsibility of reviewing and interviewing candidates for vacancies 
in the court and making a recommendation of three persons to the 
Governor.
  Rosemary Barkett went through that process, was recommended, and I 
had the privilege of appointing her to the circuit court.
  A few years thereafter, a vacancy occurred in the intermediate 
appellate court in our State that had jurisdiction over the area of her 
home community. Again, there was the same process of judicial 
nomination and screening by a carefully selected group of individuals, 
and a recommendation to the Governor, which gave me the opportunity to 
appoint her a second time to the intermediate court of appeals.
  Then, in 1985, a vacancy occurred on the Florida Supreme Court. A 
special judicial nominating committee has singular responsibility for 
recommending those persons who are considered to be most qualified to 
sit on Florida's highest court.
  I provide this background because it indicates that Justice Barkett 
was not casually appointed to any of the judicial positions that she 
held. She was analyzed by persons from the community, from the State, 
persons both trained in the law, and concerned lay people.
  For a third time, she was recommended--this time for the highest 
position in Florida's judiciary--as a member of the Florida Supreme 
Court. And for a third time, applying the procedures that I did, which 
included rigorous analysis of background and a personal interview, I 
recommended and appointed Justice Barkett to the Florida Supreme Court.
  She is a person who has been consistently analyzed in terms of her 
intellect, her judicial quality, her demeanor, her capacity for 
personal growth, and the qualities that she would bring, whether it was 
judging at the trial level, at the intermediate trial level, or at the 
highest level in our State judicial system.
  She has been subjected to other analyses. Under our system, after a 
judge has served a period of years, they are subject to a retention 
election at which they stand on their record before the people of 
Florida. Justice Barkett was subject to that retention election in 
1992. She faced virtually the same arguments against her retention by 
the people of Florida as had been made on the floor today, and in 
previous forums, against her record. She rallied to her support a wide 
array of concerned Floridians, including the major law enforcement 
agencies, the Benevolent Association and the Fraternal Order of Police, 
who both supported her retention as a member of the Florida Supreme 
Court.
  I suggest, Mr. President, that if those organizations, who are 
closest to the criminal justice system and its proper enforcement, had 
felt that she had the characteristics described about her, they would 
hardly have recommended to the people of Florida that she be retained 
in her position. But they did, as did virtually every other legal 
organization and major opinion commentator in our State.
  The result of that retention election--probably the most contested 
retention election for a Supreme Court justice in our State's history--
was that Justice Barkett received 61 percent of the vote of the people 
of Florida. I believe that is a strong statement of the people's 
attitude as to whether she has properly enforced the law, applied the 
law as a judge is called upon to do, and it has reflected what the 
people of Florida expect from a member of their highest court.
  She has had another election since that. She was elected by her 
colleagues on the Florida Supreme Court to be its chief justice, the 
position that she currently holds.
  So in a whole variety of forums--judicial nomination on three 
occasions, by the people of Florida, and by her colleagues on the 
Florida Supreme Court--she has received the strongest commendation for 
her judicial qualities.
  She brings all of this background to her current nomination to serve 
on the eleventh circuit court of appeals. I believe that she will be an 
outstanding justice there as she has been in the Florida judicial 
system.
  Mr. President, I would like to comment on a few of the criticisms 
that have been made about Rosemary Barkett and reserve time to comment 
further as this debate proceeds.
  It has been suggested that she is unwilling to uphold the death 
penalty. Again, I submit the fact that she has had the strong support 
of law enforcement in our State for her continued service on the 
Florida Supreme Court and how she has the support of national law 
enforcement organizations for her confirmation to serve on the eleventh 
circuit is evidence that those who are closest to the enforcement of 
the law place their confidence in Rosemary Barkett. As a member of the 
Florida Supreme Court, she has participated in some 500 to 600 opinions 
which relate to the imposition of the death penalty. Many of those 
opinions related to multiple defendants or defendants who had multiple 
cases before the Florida Supreme Court.
  Approximately 125 to 150 individuals have had their death penalty 
affirmed in an opinion in which Rosemary Barkett concurred in that 
affirmance. She is not a judge who by demonstrated record has been 
unwilling where appropriate to enforce the death penalty. She has been 
admittedly a rigorous judge in terms of assuring that the law was 
properly applied in death penalty cases.
  As one who supports the death penalty, as a member of the State 
legislature who voted for its reimposition in Florida in the 1970's, as 
a Governor who signed over 100 death warrants, as a Member of the 
Senate today who supports expanded Federal use of the death penalty, I 
believe it is critical that we have judges of Rosemary Barkett's temper 
who are willing to rigorously review cases and are willing to see that 
the law is applied. None of us want to see the death penalty utilized 
against an innocent person. None of us want to see the death penalty 
utilized where it does not fulfill its legal purposes. There would be 
no greater attack against the continuation of the death penalty than 
its casual application.
  I believe that Justice Barkett has served the ends of justice and 
specifically served the ends of justice appropriate to the death 
penalty by the rigorous way in which she has conducted her office.
  A second criticism of Justice Barkett has been that she has 
inappropriately enforced due process and equal protection standards in 
the U.S. Constitution. Mr. President, I would point out the obvious. 
The United States is a Federal system. Part of that Federal system is a 
dual system of justice. We have State laws; we have Federal laws. 
Federal laws are supreme, but States have the authority to adopt State 
standards that go beyond the protections of the Federal Constitution. 
No State can fall below those standards, but States can augment the 
protection of individuals.
  We have done so in Florida in a number of instances. I would cite as 
illustrative a provision that was adopted to our State constitution in 
1980 by a very strong majority of the people of Florida voting to amend 
our Constitution to insert this provision. It is article 1, section 23 
of the Florida Constitution entitled ``Right of Privacy.'' And that 
provision reads:

       Every natural person has the right to be let alone and free 
     from governmental intrusion into his private life except as 
     otherwise provided herein. This section shall not be 
     construed to limit the public's right of access to public 
     records and meetings as provided by law.

  That is the Florida constitutional provision that ensures the right 
of privacy, the right to be left alone, to be free from governmental 
intrusion.
  That goes beyond the right of privacy as has been found not in its 
words but by its meaning to be in the U.S. Constitution. That provision 
was in the Florida Constitution some 5 years before Rosemary Barkett 
became a member of the Supreme Court of Florida. That provision had 
been interpreted by Supreme Courts of the State of Florida prior to her 
service. She has been a faithful member of the Florida Supreme Court in 
terms of carrying out that as well as the other provisions of our State 
Constitution.
  In doing so, yes, she has provided protections for privacy that go 
beyond the U.S. Constitution but for her now to be criticized as having 
done so because of fidelity to her oath of office to enforce the 
Constitution both of the United States of America and of the State of 
Florida I think is to turn one of her great assets, her fidelity to the 
law, to become an apparent weakness.
  She also understands that in the area of due process and equal 
protection of the law there are areas in which the State constitution 
as interpreted by this and previous Florida Supreme Courts provides 
protections to Floridians that go beyond those that are provided under 
the U.S. Constitution as Americans. She has been rigorous in the 
enforcement of those State due process provisions.
  One of the cases that was cited to her detriment is the case of 
Foster versus State. I might say, parenthetically, Mr. President, I 
know this case well. I signed the death warrant that led in part to 
this opinion.
  In this case, the defendant had raised the issue that he had been 
denied due process not under the Federal Constitution, but under the 
State of Florida's Constitution. It was the opinion of Justice Barkett 
in a dissent in which she was joined by two of the other members of a 
seven-person Florida Supreme Court that that claim of denial of due 
process under the Florida Constitution had not been adequately 
adjudicated. Her disposition in the dissent of this was to the effect 
that there had been a charge that a particular judicial officer had 
applied the death penalty in a racially discriminatory way. She did not 
resolve whether that allegation had a factual basis or not but rather 
said that it was a legitimate claim under the Florida due process 
provision of our State constitution and deserved to have an appropriate 
judicial resolution.
  Whether you agree or do not agree with her dissent, it is not an 
unreasonable position that she was advocating. It was not a position 
which indicates that she was soft on crime or unwilling to enforce the 
death penalty.
  Third, Mr. President, it has been suggested that she will not enforce 
the law and, therefore, will hamstring the criminal justice system. The 
very criticisms that have been made against her is the fact that she is 
so faithful in enforcing the law in applying the precedents and the 
special provisions of the Florida Constitution and she has said, 
including on numerous occasions during her appearance before the 
Judiciary Committee, that she understands that as a member of the 
Federal eleventh circuit court of appeals that she will have a 
different set of responsibilities than she has had as a justice and now 
chief justice of the Florida Supreme Court. She understands the 
significance of a judge's responsibility to enforce the law and to 
follow the precedents, particularly the precedents of the United States 
Supreme Court.
  I believe, Mr. President, that her demonstrated extended career, a 
career of distinction and faithfulness to the law, qualifies her to be 
a member of the Eleventh Circuit Court of Appeals. She will bring to 
that court a very special and valuable personal background. The people 
of America and the system of justice in America have been enriched by 
her service to date and will be further enriched by her elevation to 
this important Federal judicial post.
  I thank the Chair.
  The PRESIDING OFFICER. Who seeks recognition?
  Mr. HATCH. Mr. President, how much time does the Senator need?
  Mr. SMITH. Ten minutes.
  Mr. HATCH. I yield 10 minutes to the distinguished Senator from New 
Hampshire.
  The PRESIDING OFFICER. The Senator is recognized for 10 minutes.
  Mr. SMITH. Thank you, Mr. President. And I thank my colleague from 
Utah for his leadership in regard to the opposition to Judge Barkett.
  I rise to oppose this nomination of Rosemary Barkett to be the 
circuit judge of the U.S. court of appeals for the eleventh circuit.
  The President of the United States has used a great deal of rhetoric 
in the last several days, several weeks, several months, since he has 
been President. He used it also in the campaign about his being a tough 
anticrime candidate, and later as President. He even favors the death 
penalty, he says.
  Well, as a President of the United States, one has a great 
opportunity to back up that rhetoric with action by the judicial 
nominations that he makes. Talking tough on crime is one thing, but 
appointing tough judges against crime is another. And in this case, the 
action does not equate in any way with the rhetoric. In fact, there is 
the trite expression ``actions speak louder than words,'' and this 
action of making this nomination speaks very loudly, a lot louder than 
the words.
  The nomination of judges is one of the most important actions that 
any President can take on anything. But in this case, especially in the 
area of fighting crime, the President's nomination of Judge Barkett 
speaks volumes. Long after a President leaves office, long, long after 
a President leaves office, that judge continues in that position to 
make decisions which affect all of our lives.
  I ask my colleagues, if they are tough against crime, to take that 
into consideration as they evaluate this nomination.
  Judge Barkett has a long record as a judge on the Florida Supreme 
Court. On a wide range of criminal law issues, she established a record 
of unabashed liberalism--opposite, directly opposite, of the 
President's tough-on-crime rhetoric.
  On the Florida Supreme Court, Judge Barkett has voted in favor of 
series of unduly restrictive fourth amendment search-and-seizure 
decisions that would hamstring police fight against crime. In fact, two 
of her opinions have been reversed by U.S. Supreme Court.
  Likewise, Barkett was voted to strike down carefully crafted 
antiloitering laws--including laws proscribing loitering for purpose of 
drug dealing and loitering for purpose of prostitution. Once again, 
this judge's liberal view of constitutional law hinders police in fight 
against crime.
  Judge Barkett believes criminal obscentiy laws ``run counter to every 
principle of notice and due process in our society.'' she argues that 
obscenity ``cannot be defined,'' even though the U.S. Supreme Court has 
set forth how it can be defined. Barkett's soft-on-obscenity view is 
sadly consistent with the Clinton Justice Department's notorious soft-
on-child-pornography position that Senate denounced by 100 to 0 vote 
last fall.
  But by far most disturbing aspect of this judge's criminal law record 
is with respect to the death penalty--again, the death penalty that 
this President says he supports, that this Congress says it supports, 
that the American people support. And yet, we get a judge who is by far 
the most militantly anti-death-penalty member of the Florida Supreme 
Court, maybe in the whole country let alone the Florida Supreme Court.
  In case after case, this judge has strained--strained--to find a way, 
anyway she can, to avoid voting to uphold the death penalty, even in 
the most outrageous and violent murder cases, the most outrageous. We 
are not talking about marginal murder cases here with marginal 
evidence. We are talking about the most violent.
  Let me give you an example, the Dougan case, We heard a lot about it 
today, but we ought to hear more about it. We ought to hear it again 
and again and again. Our colleagues should understand what kind of a 
judge we are talking about here. It is no wonder. It is a case that 
illustrates most clearly Judge Barkett's antideath penalty, criminal-
as-victim-of-society philosophy.
  Murderer Dougan was leader of group called ``Black Liberation Army.'' 
The group's avowed goal, said trial judge in case, was ``to 
indiscriminately kill white people and thus start a revolution and a 
race war.'' That was the stated goal.
  One evening in 1974, Dougan and four other members of group picked up 
white hitchhiker, drove him to trash dump, stabbed him repeatedly, and 
threw him to ground. As youth writhed in pain and pleaded for his life, 
Dougan put his foot on youth's head and shot him twice--once in chest 
and once in ear.
  After brutal murder, Dougan made several tape recordings bragging 
about murder and mailed them to victim's mother. In the tape, Dougan 
made this unspeakably grotesque and disgusting statement--

       He [the youth] 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.

  That is the quote from this person. This person deserves the death 
penalty and this country deserves a judge and judges who have the guts 
to administer it, not the opposite.
  Although the Florida Supreme Court commendably and understandably 
upheld the death penalty in Dougan's case, Barkett dissented. She 
joined a dissent written by one of her fellow anti-death-penalty 
justices. That dissent made the following remarkable statement, which I 
will quote at length because it so clearly illustrates Barkett's blame-
society-first, not-the-criminal's-fault, coddle-the-criminals 
philosophy of judging: Here is what they said:

       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 pervasic illness of racial discrimination and of 
     hurt, sorrow, and rejection. Throughout Dougan's life his 
     resentment turned to bias and prejudice festered. His 
     impatience for change, for understanding, for reconciliation 
     matured to taking the illogical and drastic action of murder. 
     His frustrations, his anger, and his obsession of injustice 
     overcame reason. The victim was a symbolic representation of 
     the class causing the perceived injustices.

  This is the person this President wants to put on this court, this 
anticrime President? Actions speak louder than words.
  The Dougan case says it all, Mr. President. Barkett is soft on crime, 
to say it nicely. She has a right to her opinion; absolutely. This is 
America. But we have a right to ours. And if you are an anticrime 
President, you have no business putting her on the circuit court. If 
you are pro-death penalty, you have no business appointing this judge, 
Mr. President, with all due respect. Back up your rhetoric with action.
  Barkett subscribes to the blame-society, blame-anybody-but-the-
criminal philosophy of criminal law. She epitomizes the kind of judge 
the American people do not want. But we are going to get her. Do not 
kid yourself. The votes are here. We are going to get her. The American 
people do not want her, but we are going to get her. The American 
people are sick and tired of these liberal judges who coddle the 
criminals and find any way they can to allow the most vicious killers, 
the most vicious, despicable people to escape the consequences of their 
acts and blame everybody else.
  We have societal problems. That is another issue. But when you break 
the code and you do what Dougan did, and people like Dougan did, you 
deserve to pay the price. No other victim, no other person in our 
society should ever have to face this animal again.
  Poll after poll after poll shows that the American people have grave 
doubts about this President and some of his policies. The Barkett 
nomination is a prime nomination of why. As I said earlier, actions do 
speak louder than words. The President is talking tough on crime and 
then serves up an endless parade of these liberal judicial nominees who 
are soft on crime.
  It is more than being soft on crime. As I said, any judge has a right 
to her position. Many judges oppose the death penalty. That is their 
right.
  But again, when you are the President and you say you are for the 
death penalty, why do you appoint judges who are not? Why? Maybe the 
American people would have some explanation for this. I think it is 
pretty obvious. You do not mean what you say.
  The American people are not going to be fooled by this. They are not 
going to be fooled. No President who would nominate a person like this 
to the circuit court, like Rosemary Barkett, means a word he says when 
he claims he is tough on crime. That is the conclusion. He does not 
mean what he says.
  I urge the people who might be looking at this debate, or hearing 
this debate, frankly--and I do not do this often on the floor of the 
Senate--but I urge you to call your Senators and urge them to vote 
``no'' on the nomination. I will give you the number. It is 202-224-
3121. That is how important I feel this is. Call your Senators.
   While you are at it give the White House a call. Say, ``Mr. 
President, I do not understand. I do not understand how you can be 
anticrime and be in favor of the death penalty and give us a judge like 
this. I do not understand, Mr. President.'' Let me give you that 
number: 202-456-1414. Let him know how you feel.
  I hope and I pray--and my colleague from Utah may know more about 
this than I do at this point--we are not going to see this type of 
nomination appear on the Supreme Court of the United States with the 
pending Blackmun vacancy.
  Let me conclude. I think I have made my point. My colleague has been 
very generous with his time. I commend Senator Hatch for his 
leadership. He has done this so many times. I know how he feels. He 
feels a President does have a right to make his appointments, but he 
feels very strongly, as I do, that this is just simply inconsistent 
with the stated policies of this President, it is inconsistent with 
what is in the best interests of the anticrime feeling of this country 
right now and the disgust with it. He has had the courage to stand up 
and lead opposition to this nomination.
  I have seen him also on the floor of this Senate stand up and support 
strongly the nomination of other judicial appointments by this 
President. So it is not political. This is a moral issue with him, one 
he feels very strongly about. I say to my colleague from Utah, he has 
performed a great service to his country in exposing the true nature of 
this nomination, and I know he will continue to keep up the good fight.
  Again, I compliment the Senator for making this known to the American 
people. I hope the American people will express those views as I have 
outlined to their Senators and to the President, and somehow by the 
grace of God, we could stop this very, very bad nomination.
  I thank my colleague.
  The PRESIDING OFFICER. Time of the Senator has expired.
  The Chair recognizes the Senator from Utah.
  Mr. HATCH. I thank my dear colleague from New Hampshire for his kind 
remarks, but also for his remarks about the nominee. No one here wants 
to find fault with the nominee as a human being. But if you look at 
these opinions and you read them, you really have to be concerned. 
Especially at the time when we are awash in drugs, awash in crime, 
awash with all kinds of difficulties in this society, we do not need 
another person who ignores the laws and starts to put his or her own 
emotional predilections into the law instead of interpreting the laws 
made by elected representatives, who are elected to make them. Judges 
are not elected. If she gets this position she will be confirmed for 
life. If she continues to operate in the way she has on the Florida 
Supreme Court, I can predict a lot of difficulties in the fight against 
crime, not only in Florida, now, but throughout the country.
  I thank my colleague 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. SIMON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SIMON. Mr. President, I just want to put in a word or two.
  Judge Barkett, from every evidence I have seen--and I have gone 
through the record, I was there for part of the hearing--is eminently 
well qualified. The charge that she is soft on crime, or does not favor 
the death penalty--that really should not be a consideration. The 
reality is the soft on crime stuff just does not hold up under 
examination. And if someone happens to be opposed to the death penalty 
and is a judge, or favors some change, other change in the law, that 
judge is not there to make the law. That judge is there to enforce the 
law.
  She has indicated that she will do that.
  I think it is interesting the Orlando Sentinel concluded that the 
``soft on crime'' attacks by Justice Barkett's opponents are, 
``reckless and unfair.'' The Sun-Sentinel called the charges false.
  The Miami Herald concluded that the President, ``could not have found 
anyone better prepared.''
  The Orlando Sentinel called it a ``top notch choice.''
  The reality is this is a good nominee. I am pleased our colleagues, 
Senator Graham and Senator Mack, are supporting the nomination. I think 
we are making a mountain out of a molehill here. I think she ought to 
be approved, and approved quickly, and I hope we get on about our other 
business.
  If no one else seeks the floor, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I oppose the confirmation of Chief 
Justice Rosemary Barkett of the Florida Supreme Court to the court of 
appeals for the eleventh circuit. I do so with some reluctance because 
I know that both of our colleagues from Florida, Senator Mack and 
Senator Graham, support this nomination.
  I have also received very strong words of support from constituents 
of mine in Pennsylvania and from the people whom I know in Florida.
  In opposing Chief Justice Barkett's nomination, I am not unmindful of 
the fact that her confirmation is virtually assured. But I want to 
register my vote in opposition perhaps more as a protest vote on the 
nominee's judicial philosophy and reasoning, which I believe go beyond 
the appropriate bounds of judicial activism, which I think ought to be 
minimized, to a judicial philosophy which is very strongly result 
oriented.
  In casting this vote, which I plainly denominate as a protest vote, I 
think to the extent that the activities of the Judiciary Committee on 
which I serve or the Senate which has the ultimate responsibility for 
confirmation can provide a forum for our views for whatever guidance 
they might be for the State judges and lawyers of America who aspire to 
be on the Federal bench, that it does have some value. Of course, 
people will take it for what it is worth. I am glad for what they think 
it is worth.
  I am glad to see that this issue is coming before the full Senate for 
a vote on the merits without a filibuster requiring 60 votes for 
cloture to bring the nomination to a vote. Had there been a filibuster 
or an effort to stop this issue--Chief Justice Barkett's nomination--
from coming to a vote, I would have opposed a filibuster. I think that 
a filibuster--that is where Senators refuse to conclude the debate 
until at least 60 Senators vote in favor of concluding the debate--is a 
procedure which ought to be used very, very sparingly, and not in this 
sort of a case.
  I will refer to some of the nominee's decisions somewhat briefly, as 
I made a full statement in the Judiciary Committee, which is a matter 
of record. Some of the cases which illustrate Chief Justice Barkett's 
result orientation are found, illustratively, in her dissenting opinion 
in the case of Foster versus Florida. This case challenged the 
constitutionality of a death penalty under the equal protection clause 
where there is an effort, through a statistical analysis, to show that 
there is unfairness in the imposition of the death penalty.
  At the outset on my analysis of this case, I wish to be as emphatic 
as I can that while I favor the death penalty--and have done so 
consistently since my days as an assistant district attorney and then 
as district attorney of Philadelphia many years ago--I believe it has 
to be very carefully applied. I believe that the essence of justice is 
individualized justice. I believe that we have moved too far in the 
direction of mandatory sentencing, generally, which takes away 
discretion from judges to apply justice on an individualized basis.
  I think that in following the decision of the Supreme Court of the 
United States, in Furman versus Georgia in 1972, prohibiting the 
imposition of the death penalty unless imposed by juries after very 
careful consideration and analysis of the aggravating circumstances and 
the mitigating circumstances of each particular case, we have moved a 
long way in terms of seeing to it that there is individualized justice 
in death penalty cases.
  During my tenure as district attorney of Philadelphia, where my city 
had some 500 homicides a year, the death penalty was requested in the 
very limited number of cases which I, as the district attorney, 
approved personally. I believe that the death penalty is going to have 
to be very carefully applied if we are to keep it in our society. While 
the vast majority of the American people favor the death penalty--
something in excess of 70 percent--and while I believe there is very 
strong evidence that the death penalty is a deterrent, it is not being 
applied in America today.
  Thirty-seven States have the death penalty. There are approximately 
2,800 men and women on death row, and last year there were 38 cases 
where the death penalty was carried out. So, as a society, I think we 
have failed to utilize the death penalty as a deterrent and as an 
effective weapon in the fight against violent crime. But it is very 
necessary to apply it in a very careful and in a very precise way. The 
lengthy appeals process which goes on in the Federal courts--some 
taking as long as 17 years, the average between 8 and 9 years--has very 
substantially reduced the impact of the death penalty. I think each 
case has to be individually analyzed, and the kind of statistical 
analysis that some seek to apply--that is, to show that there is, on a 
statistical equation, more application of the death penalty for 
minorities than for others--is unsound as a matter of legal principle.
  The Supreme Court of the United States took up this issue at some 
length in a landmark decision called McCleskey versus Kemp, and ruled 
that statistical analysis was not a fair or an appropriate basis to 
challenge the imposition of a particular death sentence. This issue has 
been considered in the Senate in our 1990 crime legislation. The Senate 
voted to follow the rule set out in McCleskey versus Kemp--where the 
Supreme Court rejected this statistical analysis.
  In the dissenting opinion in Foster versus Florida, Chief Justice 
Barkett says the following:

       Accordingly, because the majority has applied a Federal 
     constitutional standard in Foster's case that is impossible 
     to me, and has missed the opportunity to craft a State 
     constitutional standard, such as that discussed above, I 
     dissent.

  It may be that the Constitution of the State of Florida differs from 
the Constitution of the United States. On its face, I do not think that 
is so. But as I read this opinion in its totality, there is very 
definitely an effort by Chief Justice Barkett to reach a result in a 
line of reasoning that is result oriented and is not based--at least in 
my opinion--on a sound analysis of the cases.
  Another case which draws the same sort of an inference, as I see it, 
is the case of University of Miami versus Echarte, where Chief Justice 
Barkett again dissented, saying that the equal protection clauses of 
the Florida and U.S. Constitutions were violated. When Chief Justice 
Barkett had her hearing in the Judiciary Committee, under questioning--
not by this Senator, but by others--she backed away from her assertion 
that a violation of the U.S. Constitution on equal protection grounds 
had occurred, but she continued to assert that there was a violation of 
the Florida Constitution on equal protection grounds. She cited as 
authority Kluger versus White. Without going into a detailed analysis 
of that case, it simply does not stand for that proposition and does 
not govern University of Miami versus Echarte on an interpretation of 
the equal protection clause of the Florida Constitution. Again, I 
submit that her decision in this case is a reflection of the nominee's 
result-oriented jurisprudence.
  Perhaps the most troubling opinion of Chief Justice Barkett was a 
reapportionment case in which she wrote that she would support a 
reapportionment plan simply because it was submitted by the NAACP, ``an 
organization that has always had the best interests of minorities at 
heart.'' I firmly reject using any categorization, of whatever group it 
may be, as a basis for accepting their judgment. You can listen to and 
you can analyze what a party has to say, but I think that it is a 
judicial responsibility not to rely on labels, reputations, or the 
identity of the parties before the court, but to go to the underlying 
legal issues. I thought this case was especially problemsome, because 
there were very substantial other interests, such as Hispanic 
interests, involved in that case.
  Mr. President, I do know that Chief Justice Barkett has a commendable 
academic record, a commendable record as a practicing lawyer, and many 
recommend her as a jurist. I have not read all of her cases on the 
death penalty, and without having done so I will not quarrel with any 
of her decisions, which others say have been too lenient. I believe 
that a very careful analysis in death penalty cases is warranted. There 
is substantial latitude for judicial discretion in applying and 
weighing the standards of aggravating circumstances and mitigating 
circumstances in each case.
  As I survey Chief Justice Barkett's record, I believe that it shows 
more than judicial activism; there is a very heavy tilt in her 
decisions toward result orientation. For this reason I will cast a vote 
against her nomination. As I say, knowing the tenor of the Senate and 
the support she has from her home State Senators, I recognize that her 
confirmation is a virtual certainty. This, in effect, is just a protest 
vote.
  I thank the Chair.
  I see no other Senator on the floor, so I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BYRD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is no ordered.
  The Senator from West Virginia is recognized.

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