[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. HELMS. Mr. President, all my life I have heard, as the
distinguished occupant of the chair has heard, that everybody talks
about the weather but nobody does anything about it. I have been in the
Senate going on 22 years, and I think every year I have been here--
maybe minus 1 or 2--there has been a crime bill and there have been all
sorts of assurances that this is going to take care of the crime
problem once and for all. The crime bill is going to stop the crime in
the streets. It is going to put an end to drug trafficking. It is going
to stop the murders.
I know these statements were made by men and women in good faith. But
I have come to the conclusion--now that I am older than I have ever
been before and have thought much about the crime situation and crime
legislation--that we are not going to solve the crime problem in
America until we solve one or two other problems first.
Namely, we have to make up our minds, as Americans, that we are going
to restore some fundamental principles in this country, principles on
which and for which this country was founded.
I do not mean to sermonize, but as a society we have drifted so far
away from being a good Nation. Of course, I am referring implicitly to
Alexis de Tocqueville, the great French diplomat and scholar who came
to this country in the middle of the 19th century in search of the
genius of this relatively new country.
Every school boy knows that story. Alexis de Tocqueville went
everywhere in America. He went to the seaports and he went to the
cities and he went to the towns and he went to the farms, and he said:
They are not substantially different from what I have seen in my own
homeland of France.
And then he went to one other place. And when he got back to France
he recounted and recited all of the other trips he had made around
America and he said: It was not until I went into the churches of
America that I discovered the genius of America. Because there I found
that these Americans, they seek to be good. They are not perfect, but
they are trying to be good. And as long as America and Americans try to
be good, America is going to be great. But when America stops being
good, America will stop being great.
Mr. President, let us contrast that with the psychological attitude
that is so prevalent today. Look at what we see on television. And,
yes, there are some of us who have been ridiculed and mocked because we
contend that traditional values such as prayer in school ought to be
restored. School prayer, and the respect for morality that it
engenders, was taken away back in the 1960's by an unwise Supreme Court
that completely misinterpreted history and the U.S. Constitution. But
school prayer ought to be restored. And fundamental civil and personal
decency ought to be restored, as well as concern for one's fellow human
beings.
Mr. President, no crime bill can substitute for that.
I was struck by these thoughts 2 or 3 months ago when President
Clinton came up for his State of the Union Address. My soul, I have
heard few more eloquent human beings in my life. He can look you right
in the eye and tell you something that you know is not so, and you
halfway believe it. He is without question a charming man in the
podium. And he was certainly charming that night.
I remember his exhortation to the American people--and he held up his
hand--``Let us reclaim our streets from violent crime and drugs and
gangs.'' And they stood up as one in the House of Representatives and
cheered. And well they should, because we should reclaim our streets.
Then he said, ``While Americans are more secure from threats abroad,
I think we all know that in many ways we are less secure from threats
here at home. Every day the national peace is shattered by crime * *
*''
And at that point, Members stood up again and cheered. If you watched
it on television, you got sick and tired of people getting up and
sitting down, getting up and sitting down, every time the President
finished a sentence.
The President continued, ``Violent crime and the fear it provokes are
crippling our society, limiting personal freedom, and fraying the ties
that bind us.''
That is pretty good rhetoric, Mr. President. I wish I had thought of
it myself. As Ronald Reagan said afterward, ``Imitation is the
sincerest form of flattery, but this is wholesale robbery.''
And then Mr. Clinton said, ``The crime bill before Congress gives you
a chance to do something about it, a chance to be tough and smart. And
what does that mean? Let me begin by saying I care a lot about this
issue.''
Well, I remember thinking--knowing that Mr. Clinton had nominated the
chief justice of Florida's Supreme Court to sit on the U.S. Court of
Appeals for the Eleventh Circuit--I thought mercy, is he really going
to put this lady on the U.S. Court of Appeals feeling as he says he
does about crime?
Mr. Clinton continued his speech and said, ``My fellow Americans, the
problem of violence is an American problem. It has no partisan nor
philosophical element. Therefore, I urge you to find ways as quickly as
possible to set aside partisan differences and pass a strong, smart,
tough crime bill.''
Tough words. Tough words, I say to the distinguished occupant of the
chair. And this is what the American people heard from their President.
It was an impressive flow of rhetoric. That is what he said and
continues to say, and it is what the American people approve of.
But you have to look and see what actions he is really taking on the
issue of crime. For instance, today, the Senate is spending much of the
day considering Mr. Clinton's nominee to sit on the Eleventh Circuit
Court of Appeals the lady I just mentioned, namely, Rosemary Barkett.
If confirmed, she will have lifetime tenure and will henceforth be
accountable to no one. If she conducts herself as other liberal
activists have on the bench, she will allow her liberal philosophy to
permeate her decisions, using her judicial power to override the
actions of the elected representatives of the people.
That is why I am here. I am no lawyer, and I sometimes brag about it.
But I have the greatest faith and hope that the judicial system in this
country will return to its proper constitutional role of interpreting
and not rewriting the Constitution.
But let us examine Judge Rosemary Barkett's record.
During her tenure on the Supreme Court of Florida, she has tried to
prevent the enactment of laws to ban obscenity and preserve community
order and decency, laws which I think everybody should acknowledge are
important to community policing, which Mr. Clinton says he so strongly
supports.
She has issued a series of search and seizure decisions which if
implemented, would severely hamper the ability of the police to enforce
laws against drug trafficking and other crimes, the kind of crimes
about which the President says he is so concerned and he said so
eloquently a few short months ago in January.
This liberal lady judge has also endorsed a capital punishment theory
that would make it impossible to impose the death penalty unless it is
carried out according to racial quotas. She has attempted at every turn
to make excuses for the acts of brutal criminals based on the
fallacious liberal philosophy that criminals are the victims of
society--you know, the old society-is-to-blame game.
So I am inclined to say so much for Mr. Clinton's appeals regarding
crime and punishment when he sends this Senate a judicial nominee more
interested in making excuses for criminals than in having them held
responsible for their actions--a judge that believes that the criminals
are the victims.
Mr. President, I am not going to take up much more of the Senate's
time. I am shortly going to ask to have inserted in the Record an
analysis of the nominee's record and a number of her judicial opinions.
But before I do that, I do want to discuss a few of the cases which may
help reveal to those watching on C-SPAN the kind of nominee Mr. Clinton
has submitted to the Senate to sit on the U.S. Court of Appeals.
In the case of Stall v. State (570 So. 2d 257 (Fla. 1990), for
example, Chief Justice Barkett joined a dissent that called for
striking down a State obscenity statute. She stated, ``A basic legal
problem with the criminalization of obscenity is that it cannot be
defined.'' I say to the lady, with all respect, you are crazy as the
devil. It can and has been defined by the U.S. Supreme Court--I do not
know why she could not find the case. It is called Miller versus
California and was decided way back in 1973.
She went on to say in that opinion that the Florida obscenity law
violated ``every principle of notice and due process in our society.''
Senators may also be aware of Barkett's decision in Bostick v. State,
which is cited as 544 So.2d 1153 (Florida 1989). In that case, the
Broward County Sheriff's Department had tried to combat the flow of
illegal drugs by randomly boarding, at scheduled stops, buses traveling
interstate. Once on the buses, officers would ask the passengers for
permission to search their luggage for drugs.
Now, a fellow named Bostick was a passenger on such a bus. The
sheriffs boarded the bus. They announced they were narcotics agents.
They asked Bostick for permission to search his luggage. Bostick
consented to the search, and during the search, what do you know, the
sheriffs discovered illegal drugs.
Now, in finding this search to be illegal--and how she arrived at
that conclusion baffles me--Barkett wrote an opinion completely
prohibiting the police from ever using this means of combatting drug
trafficking again.
And I say again, President Clinton was so eloquent in his address to
the Joint Session of Congress. Oh, he was so eloquent. And then he
sends up a nominee like this.
In her opinion in the Bostick case--which was subsequently overturned
by the U.S. Supreme Court (Florida v. Bostick, 111 S.Ct. 2382 (1991))--
Barkett wrote: ``This is not Hitler's Berlin, nor Stalin's Moscow, nor
is it white supremacist South Africa.''
How does this mesh, I ask the presiding officer, with President
Clinton's appeal to the American people to support the honorable and
difficult work of our law enforcement officers?
Mr. President, there is more. As Senator Hatch concluded after her
confirmation hearings: ``Judge Barkett exhibits a clear tendency to
strain for unconvincing escapes from the imposition of the death
penalty.''
One of Justice Barkett's dissenting opinions would render the death
penalty virtually unenforceable--unless imposed on the basis of racial
quotas. She laid out her theory in a dissent in Foster v. State (No.
76,639 (Florida, April 1, 1993)). This theory has been used in Senate
debate by Senator Kennedy and others opposed to the death penalty.
Before voting on this nomination, Senators may wish to review a 1992
Florida Supreme Court case, Dougan v. State (595 So. 2d 1 (Florida
1992)). Dougan was the leader of a group that called itself the Black
Liberation Army. According to the trial judge, its ``apparent sole
purpose * * * 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 went in search of victims. They picked up a white
hitchhiker, Steven Orlando, drove him to an isolated trash dump, and
stabbed him repeatedly. Dougan then put his foot on Orlando's head and
shot him twice. In one of several tape recordings he made bragging
about the murder, Dougan said: ``* * * it was beautiful. You should
have seen it. Ah, I enjoyed every minute of it. I loved watching the
blood gush from his eyes.''
Justice Barkett and one her colleagues joined in a dissent calling
for Dougan's death sentence to be reduced to life imprisonment, with
eligibility for parole in 25 years, which stated:
This case is not simply a homicide case, it is also a
social awareness case. 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 frustration, his anger, and his obsession of
injustice overcame reason. The victim was a symbolic
representation of the class causing the perceived injustices.
Mr. President, the dissent concluded that giving Dougan a life
sentence instead of the death penalty would be:
* * * 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.
Mr. President, is this what President Clinton meant 3 months ago,
when he told the American people that ``those who commit crimes should
be punished?''
Adds Tallahassee prosecutor Ray Markey: ``To say that this white
victim was a sacrifice and call it a social awareness case--that's
scary.''
Mr. President, the outrageous rationale Judge Barkett agreed with in
this opinion would justify killings by terrorists, and Mr. Clinton
wants to elevate this woman to the Federal Court of Appeals. Has she
not done enough damage in Florida already?
Mr. President, the bottom line is that Congress can--as called upon
by President Clinton--pass history's toughest crime bill--but that will
not make any difference in the world if the President turns around and
appoints to the Federal bench individuals such as Rosemary Barkett, the
pending nominee.
If this lady is confirmed and brings these points of view to the
Federal judgeship to which she has been nominated, she is not going to
help crime in the streets. She is going to help build up the incidence
of crime in the streets and everything else.
That is the reason I shall not and cannot support her nomination.
Mr. President, I ask unanimous consent that an analysis of this
nominee prepared by Mr. Thomas L. Jipping of the judicial selection
monitoring project and a copy of a column printed in the Washington
Times of October 15, 1993, and written by Sam Francis, titled
``Rosemary Barkett: Clinton Nominee,'' be printed in the Record at the
conclusion of my remarks.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Beyond Judicial Activism
(By Thomas L. Jipping, M.A., J.D.\1\)
President Bill Clinton has exercised his power under
Article II, Section 2 of the United States Constitution\2\
and nominated Rosemary Barkett to be a judge on the United
States Court of Appeals for the Eleventh Circuit, which
includes Florida, Alabama, and Georgia. The U.S. Senate
Judiciary Committee voted 11-7 to approve the nomination on
March 17, 1994, the narrowest approval margin of any Clinton
judicial nominee to date. This analysis is provided by the
Judicial Selection Monitoring Project\3\ to assist the U.S.
Senate in fulfilling its constitutional role of ``advice and
consent'' and in considering the Barkett nomination.
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Footnotes at end of article.
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i. personal information
Rosemary Barkett was born in Mexico in 1939 and moved with
her family to Miami in 1944. A former nun in the St. Joseph
order, Barkett graduated from Spring Hill College (Mobile,
AL) in 1967 and the University of Florida School of Law in
1970. She has experience as a trial lawyer (8 years) and
state circuit judge (6 years). Governor (now Senator) Bob
Graham appointed her to the Supreme Court of Florida in 1985.
Floridians voted to retain her in 1986 and 1992, when she was
named chief justice.
ii. the nominee's record
Rosemary Barkett has been a member of the Supreme Court of
Florida for nearly a decade and has amassed a sizable
judicial record. Perhaps the most striking thing about
Barkett's supporters, therefore, is that they simply refuse
to defend or even talk about that record. This is not an
overstatement. There exist in Barkett's record dozens and
dozens of very controversial opinions which demonstrate her
aggressively activist approach to judging and views on
important issues that are far outside the mainstream. Her
supporters never defend those decisions.
Instead, Barkett's supporters use two strategies. First,
they simply claim that these radical opinions are a small
fraction of the opinions Barkett has written and the cases in
which she has participated over the years. This observation,
of course, leaves these many controversial opinions entirely
undefended. Second, Barkett's supporters retreat behind a
smokescreen of statistical arguments and number-crunching.
This approach also ignores, much less defends or justifies,
the many decisions across a range of issues that clearly
identify Barkett as an aggressive judicial activist with
views far outside the mainstream.
This analysis, in contrast, will examine the actual
opinions that this nominee has written and for which she is
responsible. Neither the nominee nor her supporters can
avoid, run from, or ignore the public record she has
compiled. The real issue, after all, is judicial philosophy
and the best place to determine the nominee's judicial
philosophy is the nominee's judicial record.
A. Rule by empathy
As Senator Arlen Specter (R-PA) put it when voting against
Barkett's nomination in the Judiciary Committee on March 17,
1994, her record shows a ``result-oriented approach that goes
beyond judicial activism.'' One scholarly analysis of
Barkett's record concluded that she makes decisions on the
basis of personal ``empathy.'' The author observed that
``[c]riminal defendants, especially those on death row, are
often subjects of her empathy.''\4\ Her approach ``allows her
. . . to empathize with each capital defendant.''\5\ This
analysis concluded that ``Barkett has great empathy for
capital defendants.''\6\
The real issue is judicial philosophy. Judges are not
philosopher kings, cultural commentators, or social
therapists. Their sworn duty is to apply the law, not to rule
by empathy. It is possible that her supporters might again
tell the author of this scholarly analysis that the many
opinions she examined were merely a fraction of the total,
but the conclusion is the same nonetheless. The review that
follows will examine many of Barkett's decisions across a
range of issues to clearly identify this pattern.
B. Criminal law
Barkett's empathy for criminals and her aggressive judicial
activism is evident at every point in the process of our
society's attempt to address crime: the passage of criminal
laws, the enforcement of criminal laws, and the
implementation of criminal penalties. First, she tries to
prevent legislative bodies from enacting laws for preserving
community order and decency. Second, she tries to impose
Draconian rules that hamstring the police in their efforts to
enforce criminal laws that are enacted. Third, she goes out
of her way to excuse even the most heinous crimes and to keep
criminals from receiving the just punishment for their
crimes.
1. Striking down laws for preserving community order and decency
Barkett's aggressive judicial activism is evident at each
stage of society's attempt to maintain order and protect its
citizens. She attempts to prevent legislative bodies from
passing laws or ordinances to combat community problems.
Wyche v. State (1993).\7\ Wyche was convicted of violating
a Tampa ordinance prohibiting loitering by a street or public
place ``in a manner and under circumstances manifesting the
purpose of'' prostitution or other sexual acts. The ordinance
lists specific circumstances ``which may be considered in
determining whether this purpose is manifested.'' These
include specific actions by persons known to be prostitutes
or pimps. The Supreme Court of Florida voted 4-3 to strike
down the statute.
Barkett wrote the court's principal opinion, though it was
joined in part or in full by only two other justices. She
found three basic flaws with the ordinance. First, she
considered the ordinance ``overbroad'' because it could
potentially be used to punish innocent conduct by known
prostitutes such as ``chatting on a public street, and simply
strolling aimlessly.'' There are a least two fundamental
problems with this position.
The correct standard is not merely whether the language of
a statute is ``overbroad.'' Rather, to avoid mistaking an
over-active imagination for a sound constitutional argument,
the U.S. Supreme Court requires showing ``substantial''
overbreadth.\8\ Barkett provided little that even arguably
meets this correct standard.
In addition, Barkett refused to interpret the statute in a
way that will avoid finding a constitutional defect. Justice
McDonald's dissent emphasized this point and, citing U.S.
Supreme Court precedent, argued that the overbreadth doctrine
``is to be employed as a last resort, and it is not to be
applied when a limiting construction can be placed on the
statute or ordinance to narrow it.'' The Supreme Court of
Florida has explicitly held that courts ``have a duty to
avoid a holding of unconstitutionality if a fair construction
of the legislation will so allow.''\9\ Barkett ignored this
duty.
Barkett's second problem with the Tampa ordinance was that
it was vague, failing to give ``adequate notice of what is
prohibited'' and inviting ``arbitrary and discriminatory
enforcement.'' She said that it did not require a finding
that the defendant intended to engage in prostitution.
Arriving at this conclusion required completely ignoring the
plain language of the ordinance, which plainly states that
conviction requires providing loitering ``in a manner and
under circumstances manifesting the purpose of'' prostitution
or other sexual acts. How can any judge read a statute that
requires showing a specific purpose and claim that the
statute does not require showing intent? Justice McDonald
also cited numerous court decisions from other states
offering the same conclusion about similar ordinances.
Barkett's third problem was that the ordinance violated
``substantive due process'' because it intruded upon
``individual rights and liberties.'' She made this amazing
constitutional assertion with no hint of what rights and
liberties were supposedly involved. As discussed more fully
below, this use of the due process clause is a favorite tool
of judicial activists for striking down legislation they do
not personally support.
Barkett's position would probably invalidate any regulation
of public behavior, including disorderly conduct. Indeed, in
cases decided along with Wyche, Barkett struck down as
facially unconstitutional ordinances prohibiting loitering
for the purpose of engaging in drug-related activity.\10\ The
Supreme Court of Florida previously had upheld a general
anti-loitering statute\11\ and Barkett's opinion, though
never citing her own court's perhaps most relevant precedent,
appears to overrule this previous holding.
Stall v. State (1990).\12\ Stall was convicted of violating
Florida's anti-obscenity law and challenged the
constitutionality of the statute. The trial court concluded
that the statute violated the Florida Constitution. The
appeals court reversed. The Supreme Court of Florida voted 5-
2 to uphold the statute.
Even though this case involved the state constitution, it
is very important to accurately describe Barkett's position.
In voting to strike down Florida's anti-obscenity law,
Barkett focused not on any constitutional provision, but on
obscenity itself. In so doing, she took a much broader
position that would apply if the U.S. Constitution were also
involved. She wrote: ``A basic legal problem with the
criminalization of obscenity is that it cannot be defined . .
. . [T]his crime, unlike all other crime, depends, not on an
objective definition obvious to all, but on the subjective
definition.''\13\
Barkett's dissent appears to rest on the Florida
Constitution, though she insisted that the anti-obscenity
statute violated ``every principle of notice and due process
in our society.''\14\ Since the statute's definition of
obscenity tracks the U.S. Supreme Court's definition of
Miller v. California,\15\ Barkett's position appears to apply
in the federal context as well. The U.S. Supreme Court has
never held that some subjectivity in defining obscenity
creates a constitutional barrier to state's attempts at
regulating it. Curiously, Barkett never even cited Miller.
Barkett insisted that operation of the Florida anti-
obscenity statute required a completely subjective individual
judgment ``first, of those who happen to be enforcing the law
at the time, and, second, of the particular jury or judges
reviewing the case.''\16\ This characterization may help
create the feeling of subjectivity that is central to
Barkett's argument, but it is flatly false and is
contradicted by the plain language of the statute itself. The
statute, again tracking the U.S. Supreme Court's decision in
Miller, required determination and application of
contemporary community standards, not the subjective
individual judgment of prosecutors, jurors, or judges. In a
recent celebrated case, for example, the U.S. Court of
Appeals for the 11th Circuit--the very court to which Barkett
has been nominated--reversed a decision that the rap group 2
Live Crew had violated the state's anti-obscenity statute
because the trial judge had relied on his personal judgment
rather than on objective evidence of community standards.\17\
Barkett also specifically joined what she called the
``correct legal analysis''\18\ in Justice Kogan's dissent
which focused on the right to privacy in the Florida
Constitution. That opinion recognized a constitutional
``right of discreet access to entertainment.''\19\ Barkett
also agreed with Kogan's statement that anti-obscenity laws
are merely vehicles ``for restricting individual
autonomy.''\20\
``At her confirmation hearing, Barkett insisted that Stall
involved `the very same statute' as another case in which she
voted to uphold a conviction under Florida's child
pornography statute.\21\ She repeatedly said that `in both
those cases, the same statute was being decided, the same
statute was being considered.'''
``This is not true. Stall involved the definition of
obscenity\22\ while Schmitt v. State involved the definition
of child pornography.\23\ The definitions are different and
the breadth of Barkett's position in Stall makes it even more
surprising that she did not take the same approach in
Schmitt.''
2. Hobbling law enforcement
Barkett goes out of her way to strike down legitimate
legislative efforts to preserve community order and decency.
Her activism goes further, however, and includes efforts to
impose onerous and unwarranted restraints on effective law
enforcement. She seeks to impose per se rules restricting the
tools available to the police, particularly in the war on
drugs. A few examples follow.
Cross v. State (1990).\24\ Detectives saw Cross in the
Miami Amtrak station boarding an interstate train with only a
small tote bag. They asked permission to search her bag,
advising her that she need not consent to the search. She
consented and they observed a round object wrapped in brown
tape. The officers later testified at trial that they had
seen cocaine packaged this way in literally hundreds of
cases. They arrested Cross and later found cocaine in the
package. A divided court of appeals concluded that there was
no probable cause for the arrest. The Supreme Court of
Florida reversed, voting 5-2 that the officers had probable
cause. Past decisions by the court make clear that police
officers' training and experience must be considered in
deciding whether probable cause exists for an arrest.\25\
Barkett dissented for the reasons expressed by the author
of the appellate court's decision.\26\ That judge argued that
the object observed by the officers was ``not an inherently
suspect item.''\27\ This kind of per se rule completely
ignores judicial precedent mandating consideration of police
officers' experience and neither the appellate judge nor
Barkett offered any legal authority for this radical new
rule. Would Barkett have found probably cause if the object
had been wrapped in clear plastic rather than brown tape?
Does that make it an ``inherently suspect item'' or could it
still be a container of sugar or a white ball? Must the
package literally be labeled ``COCAINE'' for it to be
inherently suspect as the Barkett rule would require?
Bostick v. State (1989).\28\ To battle the flood of drugs
through Florida, the Broward County sheriff's department
began a practice of randomly boarding interstate buses at
scheduled stops and asking passengers for permission to
search their luggage for drugs. In this case, police boarded
a bus bound from Miami to Atlanta, announced they were
narcotics agents, asked Bostick for permission to search his
luggage, and advised him of his right to refuse permission.
Bostick consented to the search and the officers found drugs.
Bostick was convicted of drug trafficking and appealed,
claiming the cocaine had been illegally seized in violation
of the Fourth Amendment to the U.S. Constitution. The Supreme
Court of Florida voted 4-3 that the search was illegal.
Barkett wrote the majority opinion and created an automatic
per se rule against police boarding buses to search for
drugs, even with the travelers' permission. She wrote: ``This
is not Hitler's Berlin, nor Stalin's Moscow, nor is it white
supremacist South Africa.''\29\ After Barkett wrote these
words, the St. Petersburg Times (1/23/90) reported that
Florida Attorney General Robert Butterworth gave a speech to
the Florida Sheriffs Association and said that in this
opinion Barkett ``compared the searches conducted by
Broward County sheriff's deputies on commercial buses with
the roving patrols and arbitrary searches conducted in
Nazi Germany, Soviet Russia and communist Cuba. It is an
insult to the 36,000 police officers in our state to be
likened to Nazis.''
``At her confirmation hearing, Barkett denied ever writing
these words: `I would never compare the conduct of any of our
police officers in this country to those of Nazi Germany or
Soviet Russia.'''
The U.S. Supreme Court reversed Barkett by a 6-3
margin.\30\ The Court criticized Barkett's ``per se rule''
that essentially prohibited police officers from utilizing
exactly the same kind of search-with-permission approach on
buses that they may legitimately use in public places.\31\
3. Empathy for criminals
In addition to her attempts to block passage of criminal
laws and to limit enforcement of those laws, Barkett also
attempts to prevent convicted criminals from receiving the
due penalty for their crimes. Her record is full of examples
of her ``rule by empathy'' approach justifying the conclusion
offered by the University of Miami Law Review. There is no
better way of understanding this nominee's judicial
philosophy than by examining this nominee's judicial
decisions. Examination immediately reveals a clear pattern.
Here are just some of the decisions that Barkett's supporters
refuse to defend or even discuss. A few cases will receive
more extensive review because they particularly reflect
Barkett's judicial philosophy.
Dougan v. State (1992).\32\ Dougan was the ``unquestioned
leader'' of the Black Liberation Army (BLA), a group ``whose
apparent sole purpose was to indiscriminately kill white
people and thus start a revolution and racial war.''\33\ In
1974, he and three other BLA members set out armed to kill a
``devil'' (any white person) they could find. They picked up
a hitchhiking teenager and drove him to a trash dump, where
they first stabbed and then shot him. Dougan made several
tape recordings describing and bragging about the killing\34\
and sent them to the victim's mother and the media. One
tape included the following: ``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.''\35\
Dougan was convicted of murder. The jury found three
aggravating factors and no mitigating factors\36\ and Dougan
was sentenced to death. He repeatedly appealed, and the
Supreme Court of Florida repeatedly affirmed his conviction
and sentence. On this latest visit, the court voted 4-3 to
affirm the death sentence.
Barkett voted to spare Dougan. She joined Justice
McDonald's dissent in its entirety. Her supporters repeatedly
try to avoid attributing the very disturbing views in that
opinion to Barkett. They know, however, that Barkett could
have voted and written her own opinion. She could have voted
without joining any opinion. She could have joined a portion
of an opinion. In fact, she is regularly very deliberate
about these choices. If she disagreed with anything in
McDonald's opinion, she could and should have said so. By
concurring fully in that opinion, she claims those views as
her own.
Barkett admitted that ``[t]here is evidence to support the
conclusions of the trial judge on the aggravating
factors''\37\ yet she still voted against the death penalty.
The evidence did not matter. Her ``great empathy for capital
defendants''\38\ led her to focus instead on ``the
environment in which the events'' took place as well as on
``Dougan's mind-set'' during ``tumultuous times'' in race
relations across America.\39\ She chose to look at the
facts through ``the eyes of the defendant, his friends,
and most of those situated in [his] circumstances.''\40\
The opinion she joined stated:
``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. Throughout Dougan's life his
resentment to bias and prejudice festered. His impatience for
change, for understanding, for reconciliation matured to
taking the illogical and drastic step of murder. His
frustration, his anger, and his obsession of injustice
overcame reason. The victim was a symbolic representation of
the class causing the perceived injustices.''\41\
The choice was clear: ``Understandably, in the eyes of the
victim, or potential victims, the aggravating factors clearly
outweigh the mitigating; in the eyes of the defendant, his
friends, and most of those situated in the circumstances of
Dougan, the death penalty is not warranted.''\42\ Barkett's
``great empathy for capital defendants'' led her to reject
the evidence and to side with the killer rather than the
victim and the potential victims (society).
Barkett believed Dougan did not deserve the death penalty
because he had ``redeeming values'' such as education and
leadership in the black community.\43\ Never mind that Dougan
manifested these values by leading others to kill people
whose only crime is being white. Barkett believed that this
was a ``racially caused homicide'' not because Dougan and his
fellow BLA thugs went about ``indiscriminately kill[ing]
white people'' but because ``it was this disease of racial
bias and discrimination [throughout society] that . . .
contributed to the . . . crime[].''\44\
In Barkett's view, Dougan's punishment should be determined
by what will ``aid in an understanding of the wounds arising
from discordant racial relations which have permeated our
society. . . . An approval of the death penalty would
exacerbate rather than heal those wounds.''\45\
Wickham v. State (1991).\46\ When a woman companion flagged
down a passing motorist, Wickham shot him in the back, chest,
and head and robbed his corpse of $4.05. The trial court
found six aggravators and no mitigators and sentenced Wickham
to death. The Supreme Court of Florida voted 4-2 to affirm
the death sentence.
In Dougan, Barkett had said the death penalty was
inappropriate because the killer was intelligent and a
community leader. In this case, Barkett agreed that Wickham
was guilty, but insisted that the death penalty was
inappropriate because Wickham was ``mentally deficient'' and
``socially maladjusted.''\47\ She voted to spare the killer,
blaming this murder on the ``milieu of violence'' in which he
grew up\48\ and the fact that inadequate provision of social
services had left him ``unable to function in an appropriate
manner.''\49\
LeCroy v. State (1988).\50\ LeCroy was 17 years and 10
months old when he killed a man, robbed him and killed the
man's wife to silence her as a witness. The trial court found
three aggravators and two mitigators, including the killer's
age. ``The trial court gave great weight to [this] mitigating
factor but found that the evidence showed that [LeCroy] was
mentally and emotionally mature and that he understood the
distinction between right and wrong and the nature and
consequences of this actions.''\51\ Noting this finding and
that Florida law ``mandates that a child of any age charged
with a capital crime `shall be tried and handled in every
respect as if he were an adult,'''\52\ the Supreme Court of
Florida voted 6-1 to affirm the death sentence.
Barkett again agreed that the killer was guilty but voted
to spare him. She insisted that executing anyone under the
age of 18 violates the U.S. and Florida Constitutions,
something the U.S. Supreme Court has never done. She blamed
all youth crime on ``a failure of family, school, and the
social system.''\53\
Hall v. State (1993).\54\ Hall and a companion raped, beat,
and shot to death a woman who was seven months pregnant. The
trial court found seven aggravating factors and sentenced
Hall to death. The Supreme Court of Florida voted 5-2 to
affirm the death sentence, concluding that ``this cruel,
cold-blooded murder clearly falls within the class of
killings for which the death penalty is properly
imposed.''\55\
Barkett voted to spare the killer because he had an IQ of
60, a learning disability, and a speech impediment and had
experienced ``emotional deprivation'' during his life.\56\
She had no choice but to admit the holding of the U.S.
Supreme Court that the U.S. Constitution's ban on cruel and
unusual punishment ``does not categorically prohibit
execution of the mentally retarded.''\57\ While ``evolving
standards of decency'' have not forged a national consensus
on this subject, ``Floridians' attitudes'' have indeed
``evolved significantly'' so that execution of even the
mildly retarded is both ``cruel'' and ``unusual'' under
Article I of the Florida Constitution.
It remains virtually impossible to extract Barkett's theory
of constitutional interpretation. Here, she felt confident
articulating something as subjective as ``evolving standards
of decency.'' Yet in Stall v. State,\58\ discussed above, she
believed that Florida's anti-obscenity statute was
unconstitutional because defining obscenity involves a
subjective judgment!
Porter v. State (1990).\59\ Porter left his live-in-lover
but returned three months later, stalked her for two days,
stole a gun, and murdered her and her new boyfriend. The
trial court found five aggravators and no mitigators and
sentenced Porter to death. The Supreme Court of Florida voted
5-2 to affirm the death sentence.
Barkett again agreed that the killer was guilty but voted
to spare him. Even though Porter's relationship with the
victim had ended three months earlier, Barkett said that
this case arose from ``a lovers' quarrel'' and that Porter
was not capable of premeditation because of his
``emotionally charged, desperate, frustrated desire to
meet with his former lover.''\60\
Hudson v. State (1989).\61\ Hudson left his girlfriend but
returned two months later and broke into her house. He was
surprised by her roommate and stabbed her to death, stuffed
her body in the trunk of her car, and dumped her in a tomato
field drainage ditch. The trail court convicted Hudson of
first-degree murder and sentenced him to death. The Supreme
Court of Florida voted 6-1 to affirm the death sentence.
Barkett cast the lone vote to spare the killer. She
believed that since Hudson ``was apparently surprised by the
victim during [his] burglarizing of the home,'' he was
``unable . . . to conform his behavior to the requirements of
the law.''\62\ She offered nothing to explain this amazing
conclusion, that ``surprise'' by the rightful occupant of a
home should warrant a more lenient punishment for a murdering
intruder.
Adams v. State (1989).\63\ Adams was convicted in 1978 of
murdering an 8-year-old girl with whom he tried,
unsuccessfully, to have sexual relations. State and federal
courts ruled nearly a dozen times against his attempts to
avoid the death penalty. The Supreme Court of Florida finally
voted 5-2 to again affirm the sentence. Barkett voted to
spare the killer and thought he should have had even more
opportunity to present evidence of ``learning problems''
while growing up.
Cruse v. State (1991).\64\ Cruse loaded his car with guns
and ammunition and headed for a shopping center. On the way,
he attempted to kill a 14-year-old boy, as well as the boy's
parents and brother, with a shotgun. At the shopping center,
he killed two shoppers and wounded a third while they were
leaving a grocery store. He then killed another customer,
wounded another, killed two police officers, killed one more
shopper, wounded several more, and held two women hostage for
several hours. The Supreme Court of Florida voted 6-1 to
affirm Cruse's multiple convictions of first-degree murder
and his death sentence.
Barkett cast the lone vote to spare the killer, insisting
that this was not a cold, calculated, or premeditated killing
spree. She said Cruse was ``acting in response to his
delusions that people were trying to harm him.'' The
consensus of expert testimony did not support this
conclusion.
Hayes v. State (1991).\65\ Hays and two of his drinking and
drugging friends decided to rob a taxi driver for more money
to buy cocaine. Hayes shot a driver in the back of the neck
and robbed the corpse of $40.00. The Supreme Court of Florida
voted 5-2 to affirm his conviction for first-degree murder as
well as his death sentence. Barkett voted to spare the killer
because of evidence that he had a neglectful, abusive, and
deprived upbringing.
4. Reflexive activism
The cases reviewed above are but a few in which Barkett
goes out of her way to construe aggravating factors narrowly
and mitigating factors expansively. Her ``great empathy for
capital defendants'' leads her to make excuses for heinous
crimes and to treat criminals as the victims of society.
These decisions are often reflexive, without any explanation
or analysis, even when Barkett is alone in dissent.
White v. State (1990).\66\ The Supreme Court of Florida
affirmed White's conviction for murder as well as his death
sentence and voted 5-2 to deny his petition, claiming
ineffective assistance of counsel, for post-conviction
relief. Barkett voted to spare the killer.
``Barkett's dissent read in its entirety: `I cannot concur
in the majority's conclusion that appellant received a fair
trial with effective assistance of counsel.'
``At her confirmation hearing, Barkett was asked why she
did not provide any further explanation or analysis for
disputing a sentence rendered after trial and reviewed and
upheld on appeal. She responded that `our court is an
extremely busy court . . I would have liked to have had, I
am sure, the opportunity to have expanded here. But time
constraints sometimes preclude you from amplifying any
further than that.'''
Engle v. Florida (1987).\67\ Engle and another man robbed a
convenience store and killed the female cashier. The interior
of her vagina was severely lacerated, probably by a fist. The
trial judge rejected the jury's recommendation of life in
prison and, finding four aggravators and no mitigators,
sentenced Engle to death. The Supreme Court of Florida voted
6-1 to affirm the death sentence. Barkett cast the lone vote
to spare the killer. Her dissent stated, without any
explanation, her conclusion that ``the record adequately
supports the jury's recommendation of life imprisonment.''
C. Constitutional law
The power of judicial review, of literally invalidating the
actions of the elected political branches, is an awesome
power indeed. As such, it is vital to determine whether a
judicial nominee is properly respectful of the political
process by faithfully and dispassionately applying the
Constitution as written and intended or shows a willingness
to substitute her own policy preferences or ideas in place of
the law. Just as Barkett's ``great empathy for criminal
defendants'' drives her jurisprudence in the criminal
context, her aggressive activism leads her to use
constitutional provisions to legislate from the bench.
Two constitutional provisions, the due process clause and
the equal protection clause, have proven to be favorites of
those judges seeking an activist vehicle for legislating from
the bench. Barkett's record puts her squarely in this
category.
1. Due process clause\68\
One of the most powerful weapons at an activist judge's
disposal is the due process clause, which requires ``due
process'' when a state deprives persons of life, liberty, or
property. This provision allows a judge both to determine
substantive ends (especially by defining the word
``liberty'') and to assess the means for achieving those ends
(whether the process was ``due''). Particularly when a judge
engages in ``substantive due process,'' she can literally
declare constitutional rights to exist when no such rights
exist in the text, history, or intended meaning of the
Constitution. By so doing, she creates her own mechanism for
eliminating policies she does not support.
The U.S. Supreme Court has rejected the substantive due
process approach. Justice Hugo Black once wrote that ``we
refuse to sit as a `superlegislature' to weight the wisdom
of legislation.''\69\ Legislative judgments are
presumptively valid and assumed to rest upon a rational
basis unless proved otherwise.\70\ As long as government
regulation not violating a separate constitutional
provision is rationally related to a legitimate state
interest, it is valid under the due process clause.\71\
Barkett has repeatedly demonstrated her willingness to sit
as a superlegislature. Her aggressive judicial activism,
evidenced through her use of the due process clause, is a way
for her to achieve her preferred policy goals.
State v. Saiez (1986).\72\ In an attempt to combat trade in
counterfeit credit cards, Florida law criminalizes possession
of the kind of embossing machine capable of manufacturing
fake cards. Barkett's opinion in this case held that the
statute ``violate[d] substantive due process under the
fourteenth amendment to the United States Constitution''\73\
because it was not ``reasonably related to achieving [the]
legitimate legislative purpose'' of combatting credit card
fraud. Without citing a single authority, she simply declared
that ``[i]t is unreasonable to criminalize the mere
possession of embossing machines when such a prohibition
clearly interferes with the legitimate personal and property
rights of a number of individuals who use embossing machines
in their businesses and for other non-criminal activities.''
Observing that criminalizing possession interferes with
personal liberty is merely to state the obvious. Barkett
turns this observation into her conclusion. Yet the question
for the court is whether this interference with personal
liberty is nonetheless reasonable because it is related to a
permissible state goal. Barkett fails to answer this question
with such irrational circularity.
Simply because an object (or controlled substance, for that
matter) can conceivably be used for non-criminal purposes
does not mean that the state is constitutionally prohibited
from regulating or prohibiting its possession. No legitimate
constitutional principle disables society from weighing
benefits and costs and determining that possession of some
objects must be prohibited. This, indeed, is the point--
Barkett's aggressive judicial activism operates on the basis
of her personal policy choices and cites manipulable
constitutional theories such as substantive due process to
create the impression that there is some sound legal basis
for her decisions.
Wyche v. State (1993).\74\ The case is discussed more fully
above. Barkett wrote the opinion for a narrow majority of the
Supreme Court of Florida striking down a Tampa ordinance
prohibiting loitering for the purpose of prostitution. One of
her three fundamental problems with the ordinance was that it
violated ``substantive due process'' because it intruded upon
``individual rights and liberties.'' Barkett completely
ignored the proper standard courts should follow, gave no
hint of what ``rights and liberties'' were supposedly
involved, and simply struck down a legislative enactment she
did not think wise or desirable.
``At her confirmation hearing, Barkett was asked why she
invoked the due process clause of the U.S. Constitution
rather than simply relying on the Florida Constitution. She
replied that `I can accept that in a body of law there are
going to be occasions when you are going to be careless.'''
2. Equal protection clause\75\
Another favorite tool for judicial activism is the equal
protection clause. Every statute or ordinance imaginable uses
classification, categories, or distinctions. It does not
treat everything or everyone in exactly the same way. Sound
and clear guidelines are, therefore, essential to avoid
invalidating virtually all legislative actions and choices.
Fortunately, those guidelines are well-established. Justice
Clarence Thomas, writing for a nearly unanimous U.S. Supreme
Court, succinctly described it this way:
``[E]qual protection is not a license for courts to judge
the wisdom, fairness, or logic of legislative choices. In
areas of social and economic policy, a statutory
classification that neither proceeds along suspect lines nor
infringes fundamental constitutional rights must be upheld
against equal protection challenge if there is a reasonably
conceivable state of facts that could provide a rational
basis for the classification . . . This standard of review is
a paradigm of judicial restraint.''\76\
Justice Harry Blackmun also wrote for the Court that unless
a statutory classification ``jeopardizes exercise of a
fundamental right to categorize on the basis of an
inherently suspect characteristic, the Equal Protection
Clause requires only that the classification rationally
further a legitimate state interest.''\77\ There only
needs to be a ``plausible policy reason for the
classification'' and the statute need only be
``rationally'' related to that reason.\78\ This standard,
in most cases, is very deferential to legislative
judgments.
The real test is whether a judge who personally disapproves
of a legislative scheme equates ``rational'' or ``plausible''
with ``to my liking.'' Barkett's record shows that she has
succumbed to this approach. She has not been content with
upholding legislative enactments using classifications that,
while rational, she does not like. She has instead attempted
to use the equal protection clause to eliminate legislative
actions she thinks unwise or undesirable.
University of Miami v. Echarte (1993).\79\ Florida law
provides for an investigation process prior to filing
malpractice claims,\80\ a voluntary arbitration process to
encourage settlement of claims,\81\ and a cap on noneconomic
damages in medical malpractice cases.\82\ Noneconomic damages
include pain and suffering, inconvenience, mental anguish,
and loss of capacity for enjoying life. Those damages are
capped at $250,000 when the parties opt for arbitration and
at $350,000 when they refuse arbitration and go to trial. In
this case, parents suing for allegedly negligent treatment of
their child challenged the constitutionality of this
statutory scheme.
The Supreme Court of Florida voted 4-2\83\ to uphold the
statutory scheme, finding that the statute provided
``commensurate benefits'' to offset the limitation on
damages, as required by relevant judicial precedents. Barkett
dissented and did not even address the basis for the
majority's decision. She instead addressed the equal
protection question.
That task seems simple. A judge evaluating an equal
protection challenge to this statutory scheme must decide
whether it is a ``rational'' means of addressing a
``legitimate'' end. In this case, Barkett herself saw the
statute's goal as addressing the ``financial crisis in the
medical liability insurance industry.'' Addressing this
crisis is certainly a ``legitimate'' end. A legislative task
force had found that ``the dramatic increase in the size or
amounts of paid claims'' was at the root of the liability
insurance crisis. The statute, which limits the ``size or
amount of paid claims,'' appears self-evidently to be more
than ``rationally'' related to its purpose.
Barkett, however, concluded that the statutory scheme
violates ``the equal protection clauses of the Florida and
United States Constitutions'' by ``creating two classes of
medical malpractice victims, those with serious injuries
whose recovery is limited by the caps and those with minor
injuries who receive full compensation.'' She wrote: ``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.''
It is Barkett's opinion that is irrational. The statutory
scheme is not based on some distinction between those with
``serious'' or ``minor'' injuries. While it is true that the
more serious injury will likely be accompanied by a higher
claim for damages, this is not always the case. In any event,
actual or compensatory damages--which will certainly be
higher in cases of more serious injury--are not capped.
Barkett's deliberate choice of this dichotomy to describe the
statutory scheme clearly signals her personal distaste for
the policy but is entirely irrelevant to proper analysis of
the legal question before her.
Just as she had in Saiez above, Barkett invoked the U.S.
Constitution, yet cited no federal judicial precedents for
her bizarre conclusion and did not even attempt to explain
its obvious conflict with settled U.S. Supreme Court doctrine
in this area.
``At her confirmation hearing, Barkett was again asked
about her invocation of the U.S. Constitution when state
constitutional grounds were sufficient for her conclusion.
She again admitted this was error, saying `I should not have
done that.'''
Shriners Hospitals v. Zrillic (1990).\84\ Barkett wrote the
opinion for the Supreme Court of Florida striking down a
state law allowing an heir to cancel a charitable
contribution made in a will that was executed less than six
months before the testator's death. The obvious purpose of
the law was to prevent undue pressure to make such
contributions in a will.
Barkett held that the state law in this case was both
underinclusive and overinclusive and again cited the equal
protection clause of the U.S. Constitution, claiming that
``underinclusive or overinclusive classifications fail to
meet even the minimal standards of the rational basis test.''
She cited no federal authority for this proposition. Indeed,
the U.S. Supreme Court has held exactly the opposite, namely,
that a classification does not violate the equal protection
clause simply because it ``is to some extent underinclusive
and overinclusive.''\85\ She faulted the statute for drawing
a line at six months when some gift provisions added to a
will earlier might be coerced, while others added later
might be made knowingly and willingly.
``At her confirmation hearing, Barkett was again asked
about her citing the U.S. Constitution when state
constitutional grounds were sufficient for her conclusion.
She actually denied that equal protection was `at all the
focus of what concerned me in Zrillic.' Even though she
explicitly cited the federal equal protection clause in
Zrillic, she claimed at her hearing that `when I am thinking
equal protection, generally I am thinking in terms of the
prior case law of my own court in my own State.'''
Barkett's opinion fails the rationality test and is another
example of her cloaking her own policy preferences in legal-
sounding language. Very little legislation could survive the
kind of test that Barkett created in this case, since most
statutes draw lines (many involving specific time limits).
Again, she chose to invoke the U.S. Constitution when state
law grounds were fully sufficient to reach her desired
result.
D. Civil rights and quotas
Barkett served on the Florida Commission on the Status of
Women. This group's February 1993 report recommended
legislation mandating that 50% of the members on all state
boards, commissions, and other decisionmaking bodies be
women. Most rational people would identify this as a quota.
Black's Law Dictionary similarly defines ``quota'' as ``a
proportional part or share. . . . An assigned goal . . . a
limiting number of percentage.''\86\ Barkett was quoted in
the St. Petersburg Times as insisting this was ``not in the
context of a quota system. It is simply an acknowledgement
that women make up one-half of the population of this
state.'' This is utter nonsense. The percentage of women in
the Florida population may be the way the commission arrived
as its quota, but its recommendation was for a quota system
nonetheless. The Orlando Sentinel Tribune reported that even
Democratic Governor Lawton Chiles opposed the commission's
proposal because he said it would indeed create a quota
system.
Foster v. State (1993).\87\ Foster killed a white man by
slitting his throat, dragging him into some bushes, and
slitting his spine. He then robbed the corpse. Foster's
lawyers delayed his execution for nearly two decades, finally
arguing that killers of white victims were more likely to
receive the death penalty than killers of black victims. The
U.S. Supreme Court had already rejected this statistically
manipulative way of avoiding the merits of individual cases,
saying that convicted killers claiming racial discrimination
must actually prove racial discrimination in their own
case.\88\ In Foster, the Supreme Court of Florida followed
this common sense course.
Barkett dissented. Referring repeatedly to ``unconscious
racism'' pervading the criminal justice system, Barkett
opposed any ``standard that requires showing . . . purposeful
discrimination'' and would recognize a constitutional equal
protection claim by convicted murderers based on statistical
evidence alone. This includes evidence about the disposition
of murder cases--the extent of the theory rejected by the
U.S. Supreme Court--but ``also other information that could
suggest discrimination, such as the resources devoted to the
prosecution of cases . . . and the general conduct of a
[prosecutor]'s office, including hiring practices and the use
of racial epithets and jokes.''
D. Partiality
Pursuing an aggressively activist approach to judging,
Barkett often turns from judge to legislator. She also turns
from judge to advocate. This raises very disturbing questions
about her ability to render impartial justice.
Burr v. State (1987).\89\ Barkett's activism goes even
beyond reaching out to construe a case as it is brought to
her in any way that will treat a killer with empathy. Her
empathy also leads her to decide cases on grounds not even
raised by a killer appearing before her. In this case, Burr
was convicted of first degree murder and robbery with a
firearm. The Supreme Court of Florida affirmed his death
sentence and Burr filed a motion for post-conviction relief,
claiming ineffective assistance of counsel. The court voted
6-1 to reject this argument.
Barkett again cast the lone vote to void the death
sentence, but for a reason the killer never even raised! She
wrote that ``I am deeply troubled . . . and cannot see the
sense in waiting for a formal petition for writ of habeas
corpus to argue a point I believe should have been argued on
direct appeal.''\90\ This clearly crosses the line between
judge and advocate; because Barkett thinks an argument
``should have'' been raised but was not by the lawyer
actually representing the convicted killer, Barkett sees
no problem taking up his cause and doing the work herself.
It is one thing to display the kind of empathy and
aggressive activism, as Barkett clearly does, regarding
the cases that are actually brought before the court. It
is something even more egregious to attempt literally to
create a case that does not actually exist because it
would be more favorable to the convicted killer!
In re Constitutionality of Senate Joint Resolution 2G
(1992).\91\ The Supreme Court of Florida approved a
legislative resolution re-apportioning the state for
electoral purposes. The U.S. Department of Justice objected
to the plan regarding one county because ``there are no
districts in which minority persons constitute a majority of
the voting age population.'' The legislature refused to
modify the plan so the court invited interested parties to
submit proposals, choosing a plan that ``gives minority
voters in the [county] the greatest opportunity to elect a
senator of their choice.''
The entire substance of Barkett's separate opinion reads:
``I am 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 had traditionally represented and promoted
the position that advances all minority interests.'' In so
doing, Barkett chose to decide this case not on the basis of
the arguments and evidence presented on the legal questions
involved, but by the identity of the parties before her. This
is the antithesis of equal justice under law.
``At her confirmation hearing, Barkett admitted that her
words were `very inartful.'''
University of Miami v. Echarte (1993). This case is
reviewed more thoroughly above. In October 1991, the Academy
of Florida Trial Lawyers submitted an amicus brief in this
case arguing that statutory caps on noneconomic damages in
medical malpractice cases are unconstitutional. In 1992, the
Academy established the Rosemary Barkett Award end, in
November 1992, Barkett agreed to present the first award at
the organization's annual convention. That gathering took
place one week after Barkett won her retention election,
after significant contributions of time and money from the
state's trial lawyers. In May 1993, Barkett wrote her dissent
in Echarte arguing that statutory caps on noneconomic damages
in medical malpractice cases are unconstitutional.
This kind of involvement with an organization then involved
in litigation before her raises a serious question of
impropriety.
iii. the defenders' arguments
Perhaps the most significant thing about Barkett's
supporters is that they never defend her actual record, the
dozens and dozens of very controversial opinions that express
the substance of the nominee's real views. They prefer
instead to make three statistical arguments. They remind us,
first, that Barkett won her last retention election in 1992;
second, that she votes with the majority on her court a
majority of times; and third, that she has voted for the
death in a number of cases.
A. She won her retention election
First, Barkett's supporters note that she was retained by a
61% vote in 1992. They never mention that this is the second-
lowest level of support of any justice ever sitting for
retention. They also never mention that no justice in Florida
history has ever failed to win retention for an obvious
reason. Political scientist Stuart Rothenberg, Ph.D. says:
``Retention elections aren't like other elections. Voters are
far less likely to vote out an incumbent when the alternative
is a vacancy than when they have competing candidates to
choose from.''
Neither Barkett nor her supporters mention the
unprecedented level of opposition to her retention,
reflecting deep dissatisfaction about the Supreme Court of
Florida in general and Justice Barkett in particular.
Complaints about the Supreme Court of Florida's leniency in
death penalty cases also came from the judiciary itself.
Circuit Judge Richard Eade said last year that ``if I
sentenced Adolf Hitler and imposed the death penalty, the
Supreme Court would say there is some mitigating factor.
They'd probably overturn the death penalty because he made
sure the trains ran on time and he wasn't lazy.''\92\
State Attorney General Robert Butterworth publicly
supported Barkett during her 1992 retention election. Yet
just two years before, he said that ``the Florida Supreme
Court has begun to show itself substantially more liberal on
crime issues than the U.S. Supreme Court.''\93\ Two of three
cases Butterworth singled out for particular criticism were
authored by Barkett. Both were later reversed by the U.S.
Supreme Court.
Other expressions of opposition to retaining Justice
Barkett in 1992 include:
28 assistant state attorneys in the First Judicial Circuit
signed a letter dated October 20, 1992 ``strongly opposed to
Rosemary Barkett's retention. . . . [O]ur opposition stems as
much from her judicial activism as it does from our
dissatisfaction with her judicial opinions. She has
repeatedly sided with criminals and defense lawyers on issues
ranging from the death penalty, double jeopardy, statutory
constructions, to search and seizure. . . . Simply stated,
Justice Barkett is a judicial activist whose beliefs and
agenda are not consistent with those of main stream
citizens.''
The Fraternal Order of Police Lodge #69 in Vero Beach voted
to oppose Barkett's retention because of ``her preferential
treatment being given to criminals and the lack of concern
shown for victims.'' They noted that in more than 150
criminal cases, Barkett voted in favor of law enforcement
just five times.
The Polk County Chiefs Association voted unanimously to
oppose Barkett's retention, stating that ``[h]er record as it
relates to criminal justice matters and the manner in which
she has undermined an already troubled system were cause for
shock and concern to all present.'' The Dade County
Association of Chiefs of Police also voted to oppose
Barkett.\94\
Writing in the Orlando Sentinel, the state attorney for the
Ninth Judicial Circuit, stated that ``I do not stand alone in
my opposition to Barkett. A number of other state attorneys
have publicly stated their opposition, as well as at least 16
sheriffs, dozens of police chiefs and hundreds of police
officers.''\95\
A full 21 percent of Florida lawyers opposed her, the
highest negative tally of the four state supreme court
justices considered for retention in 1992\96\ and ``the
second-lowest in the 18 Supreme Court retention elections
since they began in 1980.''\97\ The only supreme court
justice who received a lower rating ``was tainted by scandal
and nearly impeached.''\98\
A newspaper ad listed 49 chiefs of police, 18 country
sheriffs, and six state attorneys opposing Barkett's
retention. By letter dated October 29, 1992, Jerry Blair,
state attorney for the Third Judicial Circuit, confirmed that
five more country sheriffs in his jurisdiction had formally
announced their opposition as well. By letter of the same
date, Tom Tramel, Sheriff of Columbia County, announced a
list of 21 county sheriffs opposed to Barkett.
Announcing his opposition to Barkett's retention on October
29, 1992, Bruce Colton, state attorney for the Nineteenth
Judicial Circuit, stated that she ``has demonstrated that she
will not follow precedent, and has led the charge to change
the law in several areas so that it provides a greater
benefit to those convicted of crimes. The truth is that her
rulings have adversely affected the ability of the officer on
the street and the prosecutor in the trenches to do their job
effectively, and she has never demonstrated a care for
victims of crimes. . . . Barkett has a judicial philosophy
that embraces a social agenda that is clearly out of touch
with the legitimate needs of all law abiding citizens in this
state.''
William Meggs, state attorney for the Second Judicial
Circuit, announced his opposition to Barkett's retention by a
letter dated August 11, 1992, which stated that ``the
decisions of Justice Barkett hinder and defeat the efforts of
our law enforcement officers on the front lines of [the drug]
war . . . Those of us who labor in the criminal justice arena
are very concerned with protecting the rights of those
accused of crimes. However, the pendulum has swung so far
protecting the accused that our streets are not safe for law
abiding citizens.''
B. She votes with the majority most of the time
Second, Barkett's supporters claim that she votes with the
majority the majority of times. Yes, and on the U.S. Supreme
Court, conservative Justice William Rehnquist and liberal
Justice William Brennan often voted together as well. In
April 1987, the Washington Post speculated that Justice
Antonin Scalia, the Court's most conservative member, would
actually strengthen the liberal wing of the Court because he
was voting with Justice Brennan so often.
The Supreme Court of Florida decides two-thirds of its
cases by unanimous votes, meaning only that liberal activists
vote with their more restrained colleagues on relatively easy
cases. Senator Orrin Hatch, ranking member of the Judiciary
Committee, stated in a Senate floor speech on March 22, 1994,
that ``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.''\99\ This also means most judges will vote the same
way in most of those cases.
Just as Barkett's supporters ignore her actual record, they
also exalt form over substance. Where it counts, Barkett
stakes out clearly activist positions placing her outside the
mainstream of what is required for the federal courts.
Looking at the easy cases, where Barkett or any other judge
would vote with the majority, still ignores--as Barkett's
supporters routinely do--the many controversial opinions she
has written.
C. She has voted for the death penalty
The heart of the case for this nomination is a single
number. In an attempt to overcome the nominee's activist
record, Barkett's supporters claim that she has ``voted for
the death penalty'' in 275 cases. This number comes from
Professor Stephen Gey of Florida State University School of
Law and is offered by the White House as supposed proof that
Barkett is ``tough on crime.'' The media outlets which
quickly repeated--but did not examine--this statistical
claim, make similar statements. Responding to a column in the
Wall Street Journal,\100\ Professor Gey wrote that Barkett
``has voted to uphold the death penalty more than 200
times.''\101\ A reporter for the St. Petersburg Times wrote
that ``she has voted to uphold the death penalty many
times.''\102\ The Wall Street Journal reported that Barkett
``has voted more than 200 times to affirm capital
sentences.''\103\
None of these statements is true. The list of cases in
which Barkett's supporters claim she has ``voted for the
death penalty''' is so full of misrepresentation as to
constitute an attempt deliberately to mislead the U.S.
Senate.
This analysis offers a brief overview of how deceptive and
unreliable this list is. Each case discussed below is on the
Gey/White House list and represented by Barkett's supporters
as a ``vote for the death penalty.'' Even this cursory review
shows that the foundation for the most critical argument in
favor of the Barkett nomination is fundamentally flawed and
inaccurate. As such, the case for her nomination collapses
and the Senate is left with the many controversial
opinions reflecting aggressive activism and views far
outside the mainstream that remain undefended because they
are indefensible.
1. Cases not properly counted as ``votes for the death penalty''
The claim that Barkett has ``voted for the death penalty''
in 275 cases leaves the impression that the vote in each of
these cases was actually on the death penalty. This is not
true at all. In fact, the list includes many cases where
Barkett actually voted against the death penalty. Many of the
cases on the list should not be there at all. Barkett's
supporters, for example, count the following as ``votes for
the death penalty'':
Cases in which Barkett voted for the conviction but
explicitly voted against the death sentence.\104\
Cases in which the court refused, but Barkett would grant,
a stay of execution.\105\
Cases in which the court refused, but Barkett would grant,
some post-conviction relief for the killer.\106\
Cases in which the court refused, but Barkett would grant,
a stay of execution and other post-conviction relief for the
killer.\107\
Cases in which Barkett joined the court in granting a stay
of execution.\108\
Cases in which Barkett joined the court in vacating a death
sentence.\109\
Cases in which Barkett joined the court in granting post-
conviction relief for the killer.\110\
Cases in which Barkett would grant more post-conviction
relief for the killer than the court.\111\
Cases in which Barkett joined the court in reducing a
sentence from death to life.\112\
Cases in which Barkett dissented from the court's denial of
post-conviction relief and a stay of execution for the
killer.\113\
None of these cases, or many others like them, properly
belongs on any list of ``votes for the death penalty.''
Believe it or not, Barkett's supporters are attempting to
persuade the U.S. Senate, the media, and the American people
that a vote to vacate a death sentence is a ``vote for the
death penalty.'' They claim that a vote against a death
sentence is nonetheless a ``vote for the death penalty.'' How
can they possibly justify this?
First, the list includes many cases in which the merits of
a killer's conviction and death sentence had already been
decided, but the killer was still trying to avoid execution
by making motions for a variety of post-conviction relief.
Barkett's supporters sometimes refer to these as votes ``to
enforce'' the death penalty rather than votes ``for'' the
death penalty. Any time, for example, the court denies a
motion for post-conviction relief--no matter how frivolous or
repetitious--the case would go on the list because that
decision's effect was to allow implementation of the death
penalty.
Second, the list includes many cases in which Barkett,
either with or against the court, would oppose some form of
post-conviction relief (justifying its placement on the list
as a vote to ``enforce'' the death penalty) but would grant
some other relief (dictating the actual outcome in the case).
2. Gimmicks for inflating Barkett's ``votes for the death penalty''
In addition to including many cases which do not properly
belong on any legitimate list of ``votes for the death
penalty,'' Barkett's supporters also use various gimmicks to
inflate the number even further. The first is multiple
counting of cases reviewing the merits of a killer's
conviction and death sentence and all subsequent efforts by
the same killer to avoid execution.\114\
A second gimmick is multiple counting the very same case
when the court denies different kinds of post-conviction
relief at the same time. Death-row inmates can pursue two
different avenues of relief after the Supreme Court of
Florida rules against them on the merits of their conviction
and sentence. The first is under Florida Rule of Criminal
Procedure 3.850 and the other is a petition for a writ of
habeas corpus. Convicted killers often file a Rule 3.850
motion in the trial court and add a habeas petition when
appealing that motion's denial. The Supreme Court of Florida
will often consider both requests for post-conviction relief
together and decide both matters in the same opinion.
Barkett's supporters count such cases at least twice.\115\
As Senator Orrin Hatch put it: ``This doublecounting has
the predictable effect of padding the list of cases in which
the White House says that Justice Barkett has voted to
enforce the death penalty. Even more remarkably, it has the
perverse effect of including in this list of supposed votes
to enforce the death penalty numerous cases in which Justice
Barkett has in fact voted to grant relief to the petitioning
convicted murderer.''\116\
Consider, for example, that in Adams v. State,\117\ the
Supreme Court of Florida affirmed the conviction and death
sentence, affirmed the trial court's denial of Adams' motion
to vacate the judgment, denied Adams' motion for a writ of
habeas corpus, and affirmed the trial court's denial of
Adams' motion to vacate the judgment two more times. In
Professor Gey's analysis, any justice voting with the
majority in these decisions would receive five ``votes for
the death penalty.'' Yet each of these rulings--on the merits
of a conviction and sentence, reviewing a trial court's
denial of a motion to vacate, and considering a motion for a
writ of habeas corpus--has a different legal standard, raises
different issues, and requires a different method of
analysis. None but the substantive review on the merits
actually considered the conviction of a death-eligible crime
or the death sentence itself.
A third gimmick is counting decisions on purely procedural
issues as ``votes for the death penalty.''\118\
A fourth gimmick is counting decisions where Barkett
explicitly states opposition to precedent which precludes
post-conviction relief as ``votes for the death penalty.'' In
Hamblen v. State,\119\ the Supreme Court of Florida held that
a trial court is not automatically required to appoint
counsel to present evidence against imposing the death
penalty on someone convicted of a capital crime when that
individual chooses not to present such evidence. Barkett
dissented. In several subsequent cases, she appeared to join
the majority in one of those ``votes for the death penalty,''
but specifically said that she adhered to her dissent in
Hamblen, meaning that she really opposed imposition of the
death penalty in those cases.\120\
As usual, it is what Barkett's supporters do not say that
tells the real story. As Senator Bob Dole put it in his
Senate floor speech on February 24, 1994:
``Yes, it is true that Justice Barkett has, on numerous
occasions, joined with her colleagues on the Florida Supreme
Court in voting to uphold the imposition of the death
penalty. But it's also true that she is the most anti-death
penalty member of the Florida court, having dissented more
than one hundred times--and often without explanation--from
the court's decision to enforce a capital sentence. By
contrast, Justice Barkett has never--not once--dissented from
a majority decision of the Florida Supreme Court that
granted relief to a convicted capital murderer.''
In other words, she has dissented from the majority to
argue that the court should be more lenient on a convicted
killer, but has never dissented from the majority to argue
that the court should be more harsh.
iv. barkett's record is far outside the mainstream
In many areas, Barkett's stated positions are at odds with
clear holdings of the U.S. Supreme Court, congressional
decisions, and views of criminal justice officials around the
country. Here are just a few examples.
Executing Minors. In LeCroy above, Barkett was alone in
stating that executing anyone under the age of 18 violates
the U.S. Constitution. Her position would prevent the states
as well as the federal government from ever executing minors,
no matter how brutal the crime or how mature the criminal.
The U.S. Supreme Court has rejected this blanket
position.\121\ On November 8, 1993, the U.S. Senate rejected
a proposal to prohibit even the states from executing anyone
under the age of 18. The following Senators voted against the
measure:
Baucus (MT), Bennett (UT), Bond (MO), Breaux (LA), Brown
(CO), Bryan (NV), Burns (MT), Byrd (WV), Cochran (MS), and
Craig (ID).
D'Amato (NY), Daschle (SD), Dole (KS), Domenici (NM), Exon
(NE), Faircloth (NC), Feinstein (CA), Ford (KY), Gorton (WA),
and Graham (FL).
Gramm (TX), Grassley (IA), Hatch (UT), Heflin (AL), Helms
(NC), Johnston (LA), Kassebaum (KS), Kempthorne (ID), Kerrey
(NE), and Lieberman (CT).
Lugar (IN), Mack (FL), Mathews (TN), McCain (AZ), McConnell
(KY), Murkowski (AK), Nickles (OK), Nunn (GA), Packwood (OR),
and Pressler (SD).
Pryor (AR), Reid (NV), Riegle (MI), Roth (DE), Sasser (TN),
Simpson (WY), Smith (NH), Specter (PA), Stevens (AK),
Thurmond (SC), Wallop (MY), and Warner (VA).
Pornography and Obscenity. In Stall above, Barkett insisted
that all obscenity laws are unconstitutional. The U.S.
Supreme Court has rejected this position for decades, holding
instead that obscenity is not protected by the Constitution
at all.\122\ On November 4, 1993, the U.S. Senate voted 100-0
to repudiate the Reno Justice Department's effort to weaken
interpretation of the federal child pornography statute
and, six days later, President Clinton also called for
``the broadest possible protection against child
pornography.'' The Supreme Court has held that child
pornography is similarly unprotected by the Constitution.
Racial Statistics and the Death Penalty. In Foster above,
Barkett argued that statistical ratios comparing the race of
murders and victims to society at large can establish an
equal protection constitutional claim against implementation
of the death penalty. As Senator Hatch put it, this position
``would virtually paralyze implementation of the death
penalty.''\123\
When it debated the 1990 crime bill, Congress considered
the ``Racial Justice Act'' which would have established this
kind of numbers game. It would have allowed by defense lawyer
with a calculator to void the death penalty. The Los Angeles
Times (4/23/90) concluded that ``the practical effect may be
to abolish the death penalty nationwide.'' In a letter dated
March 12, 1990, the attorneys general of 23 states with death
penalty statutes stated their opposition to this measure
which, they wrote, ``is designed to do nothing less than end
the death penalty in this country.'' Barkett's statistical
theory goes far beyond the Racial Justice Act by allowing
consideration of a much broader universe of statistics,
including budget allocations, hiring practices, and intra-
office humor.
The following presently serving U.S. Senators were in the
majority that rejected the Racial Justice Act in 1990:
Baucus (MT), Bingaman (NM), Bond (MO), Breaux (LA), Bryan
(NV), Bumpers (AR), Burns (MT), Byrd (WV), and Coats (IN).
Cochran (MS), D'Amato (NY), Dole (KS), Domeninci (NM), Exon
(NE), Ford (KY), Gordon (WA), Graham (FL), and Gramm (TX).
Grassley (IA), Hatch (UT), Heflin (AL), Helms (NC),
Hollings (SC), Johnston (LA), Kassebaum (KS), Lieberman (CT),
and Lott (MS).
Lugar (IN), Mack (FL), McCain (AZ), McConnell (KY),
Murkowski (AK), Nickles (OK), Nunn (GA), Pressler (SD), and
Pryor (AR).
Robb (VA), Roth (DE), Shelby (AL), Simpson (WY), Specter
(PA), Stevens (AK), Thurmond (SC), Wallop (WY), and Warner
(VA).
Senator Robert Dole (R-KS) announced his opposition to
Barkett on the Senate floor on February 24, 1994. In his
floor speech, he noted the Supreme Court of Florida's
rejection of the ``statistical-evidence defense'' in Foster
and the similarity of Barkett's position in that case to the
Racial Justice Act which the Senate, let by Senator Bob
Graham (D-FL), rejected in 1990. He quoted Senator Graham
from the debate on the Racial Justice Act as saying: ``The
very nature of the criminal justice [system] does not lend
itself to statistical precision. . . . The Constitution
requires an individualized determination as to the
appropriateness of the death penalty.''
Senator Graham was obviously in a difficult position,
having led the opposition to legislation in 1990 embodying
this radical theory while supporting a judicial nominee in
1994 who embraces an even more radical version of the same
theory. He gave a floor speech hours after Senator Dole's
remarks in which he tried to draw a clear distinction between
the two. He insisted that the Racial Justice Act dealt with
broad ``statistical evidence as to a wide variety of cases''
covering ``an entire judicial jurisdiction.''\124\ In
contrast, he argued that Barkett's theory in Foster related
to ``a specific act of racial discrimination''\125\ by ``a
specific Florida State prosecutorial official.''\126\ Senator
Graham said, simply put, that the Racial Justice Act's theory
was broad while Barkett's theory in Foster was narrow.
To prove his point, Senator Graham asked that Barkett's
opinion in Foster be included in the public record. In so
doing, he acknowledged that Barkett's own words answer the
question about her views on this issue. That opinion appears
at pages S1838-39 in the February 24, 1994, edition of the
Congressional Record. It omits the three most important
paragraphs demonstrating that Barkett's theory goes far
beyond the Racial Justice Act. One of those paragraphs reads:
``Statistical'' evidence should be construed broadly to
include not only historical analysis of the disposition of
first-degree murder cases in a particular jurisdiction, but
also other information that could suggest discrimination,
such as the resources devoted to the prosecution of cases
involving white victims as contrasted to those involving
minority victims, and the general conduct of a [prosecutor]'s
office, including hiring practices and the use of racial
epithets and jokes.
Senator Graham said that Barkett's theory related only to
specific acts by a specific prosecutor in a specific
jurisdiction. Barkett's opinion says that relevant evidence
goes beyond ``the disposition of . . . cases in a particular
jurisdiction.'' The Racial Justice Act dealt only with
statistical evidence derived from analyzing the disposition
of actual murder cases. Barkett's theory says that relevant
evidence goes completely beyond such evidence to include
budget allocations, hiring decisions, and intra-office humor.
Senator Graham offered Barkett's opinion but eliminated the
very portion that proved him dead wrong.
Senator Graham's chief of staff said that the mysteriously
missing paragraphs were ``contained on a single missing
facsimile page that may have been omitted by the staff who
assembled the Record.''\127\ He said that they would know for
sure by Monday, February 28. As of March 29, 1994, Senator
Graham's office had not produced any missing facsimile page
or any other evidence to explain how the very three
paragraphs most critical to the dispute between Senator
Graham and Senator Dole not only ended up cleanly isolated on
one facsimile page, but also were the only paragraphs to be
omitted from the opinion Senator Graham entered into the
Congressional Record. It also remains a mystery why Senator
Graham's office had to receive Barkett's opinion in Foster
suddenly by facsimile since that opinion had been the focus
of controversy for at least four months and Senator Graham
has been Barkett's leading Senate supporter. Senator Graham
has issued no clarification or admission that the paragraphs
he omitted prove him wrong.
v. conclusion
The proper way to evaluate a judicial nominee is by
examining her judicial philosophy as reflected in her
substantive record. Rosemary Barkett's aggressive judicial
activism is evident throughout her record, across a range of
issues. She goes out of her way to block attempts to enact
criminal laws, to limit enforcement of criminal laws, and to
prevent implementation of criminal laws. Barkett uses
constitutional provisions such as the due process and equal
protection clauses to legislate from the bench, all the while
ignoring judicial precedent, wrongly citing the U.S.
Constitution, and failing to properly defer to legislative
judgments. Barkett's record clearly shows sympathy for rigid
numerical quotas based on gender or race. That record also
raises serious questions about her ability or commitment to
dispense impartial justice--the very essence of the judicial
function.
Barkett's supporters never defend the many controversial
opinions and positions she has adopted over the years.
Rather, they retreat to three basic statistical arguments.
The most important of these is that Barkett has voted for the
death penalty in many cases. In what can only be called a
scandal, however, the list offered by the White House of
these cases contains so many misrepresentations as to
constitute an attempt deliberately to mislead the Senate, the
media, and the American people.
Finally, Barkett has embraced positions on important
issues, including execution of murderers under the age of 18,
the ``statistical evidence defense'' to the death penalty,
and obscenity laws that are far outside the mainstream. The
U.S. Supreme Court and U.S. Senate have repeatedly rejected
these positions.
\1\Director, Judicial Selection Monitoring Project, Free
Congress Research & Education Foundation. B.A. with honors,
Calvin College (1983); J.D. cum laude, State University of
New York (SUNY) at Buffalo (1987); M.A., SUNY-Buffalo (1989).
Law clerk, U.S. Court of Appeals, Third Circuit (1988-89).
\2\Article II, Section 2 states in part that the President
``shall nominate, and by and with the advice and consent of
the Senate, shall appoint . . . Judges of the Supreme Court,
and all other Officers of the United States.''
\3\A project of the Free Congress Foundation's Center for Law
& Democracy, the Judicial Selection Monitoring Project is
supported by a coalition of more than 50 national and state
organizations. It was launched in August 1992 to expand the
Foundation's participation in the discussion over judicial
nominations.
\4\Comment, ``Justice Barkett's Feminist Jurisprudence,'' 46
Univ. of Miami Law Review 1161, 1162 (1992).
\5\Id. at 1175.
\6\Id. at 1178.
\7\619 So.2d 231 (Fla. 1993).
\8\See Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
\9\State v. Ecker, 311 So.2d 104, 109 (Fla. 1975).
\10\Holliday v. City of Tampa, 619, So.2d 244 (Fla. 1993);
E.L. v. State, 619 So.2d 252 (Fla. 1993).
\11\State v. Ecker, 311 So.2d 104 (Fla. 1975).
\12\570 So.2d 257 (Fla. 1990).
\13\Id. at 263 (Barkett, J., dissenting) (emphasis added).
\14\Id. at 263.
\15\413 U.S. 15 (1973).
\16\Stall, 570 So.2d at 263.
\17\Luke Records, Inc. v. Navarro, 960 F.2d 132 (11th Cir.
1992).
\18\Stall, 570 So.2d at 263.
\19\Id. at 264 (Kogan, J., dissenting).
\20\Id. at 268.
\21\Schmitt v. State, 590 So.2d 404 (Fla. 1991).
\22\Florida Statutes Sec. 827.001.
\23\Florida Statutes Sec. 827.071.
\24\560 So.2d 228 (Fla. 1990).
\25\See, e.g., P.L.R. v. State, 455 So.2d 363 (Fla.1984),
cert. denied, 469 U.S. 1220 (1985); Palmer v. State 467 So.2d
1063 (Ct. App. 1985); State v. Ellison, 455 So.2d 424 (Ct.
App. 1984); State v. Redding, 362 So.2d 170 (Ct. App. 1978).
\26\Cross, 50 So.2d at 231 (Barkett, J., dissenting).
\27\Florida v. Cross, 535 S.2d 282, 283 (Ct. App. 1988).
\28\554 So.2d 1153 (Fla. 1989).
\29\Id. at 1158.
\30\Florida v. Bostick, 111 S.Ct. 2382 (1991).
\31\Id. at 2385.
\32\595 So.2d (Fla. 1992).
\33\Id. at 2, quoting the trial judge who ``accurately set
forth the fact of this murder.''
\34\A transcript of the tapes is available upon request from
the Judicial Selection Monitoring Project.
\35\Dougan, 595 So.2d at 3, quoting the trial judge.
\36\Under Florida law, a jury convicting someone of a capital
crime must separately consider whether to impose the death
penalty. The death penalty is warranted if the
``aggravating'' circumstances outweigh the ``mitigating''
circumstances. Florida law lists 11 aggravators and seven
mitigators. See Florida Statutes Sec. 921.141. The U.S.
Supreme Court has held that a jury may choose only from the
aggravators listed in the statute but may consider any
mitigators, whether listed or not. See Eddings v. Oklahoma,
455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978)
(plurality opinion).
\37\Dougan, 595 So.2d at 6 (McDonald, J., dissenting).
\38\Comment, supra note 4, at 1178.
\39\Id. at 7.
\40\Id.
\41\Dougan, 595 So.2d at 7-8 (emphasis added).
\42\Id. at 7.
\43\Id. at 8.
\44\Id.
\45\Id.
\46\593 So.2d 191 (Fla. 1991).
\47\Id. at 195 (Barkett, J., concurring in part and
dissenting in part).
\48\Id.
\49\Id.
\50\533 So.2d 705 (Fla. 1988).
\51\Id. at 755-56 (emphasis added).
\52\Id. at 756, quoting Florida Statutes Sec. 39.02(5)(c).
\53\Id. at 759.
\54\614 So.2d 473 (Fla. 1993).
\55\Id. at 479.
\56\Id. (Barkett, J., dissenting).
\57\Id. at 480, citing Penry v. Lynaugh, 492 U.S. 302 (1989).
\58\570 So.2d 257 (Fla. 1990).
\59\564 So.2d 1060 (Fla. 1990).
\60\Id. at 1065 (Barkett, J., concurring). This is an example
of how the label attached to an opinion written by a single
justice can be very misleading. Here, Barkett agreed with the
conviction but disagreed with the sentence, yet her separate
opinion is labeled a ``concurrence.''
\61\538 So.2d 829 (Fla. 1989).
\62\Id. at 832 (Barkett, J., concurring in part and
dissenting in part). This opinion, in which Barkett agrees
with the conviction but not the sentence, is labeled a
partial concurrence/dissent. As noted above, her opinion in
Porter, in which she also agreed with the conviction but not
the sentence, is labeled a concurrence.
\63\543 So.2d 1244 (Fla. 1989).
\64\588 So.2d 983 (Fla. 1991).
\65\581 So.2d 121 (Fla. 1991).
\66\559 So.2d 1097 (Fla. 1990).
\67\510 S.2d 881 (Fla. 1987).
\68\The 14th Amendment to the U.S. Constitution reads in part
that ``nor shall any State deprive any person of life,
liberty, or property, without due process of law.'' State
constitutions have a parallel provision.
\69\Ferguson v. Skrupa, 372 U.S. 726, 731 (1963).
\70\United States v. Carolene Products Co., 304 U.S. 144, 152
(1938).
\71\See Williamson v. Lee Optical Co., 348 U.S. 483 (1955).
\72\489 So.2d 1125 (Fla. 1986).
\73\She also held the provision violated the Florida
Constitution.
\74\619 So.2d 231 (Fla. 1993).
\75\The 14th Amendment to the U.S. Constitution states in
part that ``nor shall any State . . . deny to any person
within its jurisdiction the equal protection of the laws.''
\76\FCC v. Beach Communications, 113 S.Ct. 2096, 2101-02
(1993) (emphasis added).
\77\Nordlinger v. Hahn, 112 S.Ct. 2326, 2331-32 (1992).
\78\Id. at 2332.
\79\618 So.2d 189 (Fla. 1993).
\80\Florida Statutes Sec. 766.203-206.
\81\Florida Statutes Sec. 766.207.
\82\Florida Statutes Sec. 766.207(7).
\83\Justice Kogan recused himself from this case.
\84\563 So2d 64 (Fla. 1990).
\85\Vance v. Bradley, 440 U.S. 93,108 (1979).
\86\Black's Law Dictionary, Fifth Edition (St. Paul: West
Publishing Co., 1979), at 1130.
\87\No. 76,639 (Fla. April 1, 1993).
\88\McKleskey v. Kemp, 481 U.S. 279 (1987).
\89\518 So.2d 903 (Fla. 1987).
\90\Id. at 908 (Barkett, J., dissenting).
\91\601 So.2d 453 (Fla. 1992).
\92\Associated Press, ``Judge Says Hitler Could Avoid Death
Penalty in Florida,'' Tallahassee Democrat, May 29, 1992.
\93\See Morgan, ``State High Court's Rulings Called an Insult
to Police,'' St. Petersburg Times, January 23, 1990.
\94\See O'Neal, ``Barkett Camp Disputes Foes' Claims,''
Orlando Senitel, September 30, 1992, at B-5.
\95\Lamar, ``Lamar Responds to Editorial on Rosemary
Barkett,'' Orlando Sentinel, September 10, 1992, at A-15.
\96\Associated Press, ``Florida Bar Endorses Justice Barkett,
But 21 Percent Oppose Her,'' Miami Herald, September 12,
1992, at 5B.
\97\Halldin & Reardon, ``Barkett's Support Lags Behind Others
in Poll of Lawyers,'' Tamp Tribune, September 12, 1992, at 1.
\98\Rado, ``Barkett's Support in Bar Poll is Low,'' Times,
September 12, 1992, at 6B.
\99\Congressional Record, March 22, 1994, at S3383.
\100\See Gigot, ``Crime Choice: She's No Hanging Judge,''
Wall Street Journal, October 15, 1993.
\101\``Unjust Criticism of a Chief Justice,'' Wall Street
Journal, November 9, 1993, at A19 (emphasis added).
\102\Dahl, ``Florida's Ex-Nun Chief Justice Challenged as
Appeals Choice,'' Washington Times, October 19, 1993, at A4
(emphasis added).
\103\Barkett, ``Conservatives Tear a Page from Liberals'
Book, `Borking' Clinton's Nominees for Legal Positions,''
Wall Street Journal, November 29, 1993, at A14 (emphasis
added).
\104\See, e.g., Stewart v. State, 549 So.2d 171,177 (Fla.
1989), where Barkett's opinion states: ``I concur in the
conviction, but dissent as to the sentence.'' Her supporters
count this as a ``vote for the death penalty.''
\105\See, e.g., Kennedy v. Wainwright, 483 So.2d 424,428
(Fla. 1986) (Barkett ``would grant the application for stay
of execution''); Kight v. Dugger, 574 So.2d 1066, 1073 (Fla.
1990) (Barkett wrote that one of the killer's claims
``requires an evidentiary hearing''); Thomas v. Wainwright,
486 So.2d 574, 577 (Fla. 1986) (Barkett ``would grant the
motion for stay of execution''); Adams v. Wainwright, 484
So.2d 1211, 1213 (Fla. 1986).
\106\See, e.g., Kight v. Dugger, 574 So.2d 1066, 1073 (Fla.
1990).
\107\See, e.g., White v. State, 565 So.2d 322, 323 (Fla.
1990) (Barkett ``would grant a stay of execution and
relief''); Hamblen v. State, 565 So.2d 320, 322 (Fla. 1990)
(Barkett ``would grant a stay of execution and relief'').
\108\See, e.g., Breedlove v. Singletary, 595 So.2d 9 (Fla.
1992) (court denied habeas corpus relief but granted post-
conviction relief and stay of execution); Smith v. Dugger,
565 So.2d 1293 (Fla. 1990), (court denied habeas corpus
relief but granted stay of execution).
\109\See, e.g., Way v. Dugger, 568 So.2d 1263 (Fla. 1990)
(court denied post-conviction relief but granted habeas
relief, vacated death sentence and remanded for new
sentencing hearing).
\110\See, e.g., Harich v. Dugger, 542 So.2d 980 (Fla. 1989)
(court granted post-conviction relief and remanded the case
for an evidentiary hearing); Scott v. Dugger, 604 So.2d 465
(Fla. 1992).
\111\See, e.g., Heiney v. Dugger, 558 So.2d 398, 400 (Fla.
1990); O'Callaghan v. State, 542 So.2d 1324, 1327 (Fla.
1989).
\112\See, e.g., Cherry v. State, 544 So.2d 184 (Fla. 1989).
\113\See, e.g., Thomas v. State, 486 So.2d 577, 578 (Fla.
1986) (Barkett dissented from decision to deny post-
conviction relief and stay of execution).
\114\See, e.g., Sims v. Singletary, 622 So.2d 980 (Fla.
1993); Johnston v. Dugger, 583 So.2d 657 (Fla. 1991);
Mitchell v. Dugger, 595 So.2d 942 (Fla. 1992); Ponticelli v.
State, 618 So.2d 154 (Fla. 1993); Happ v. State, 618 So.2d
205 (Fla. 1993); Breedlove V. State, 595 So.2d 8 (Fla. 1992);
Davis v. State, 620 So.2d 152 (Fla. 1993); Medina v. State,
586 So.2d 317 (Fla. 1991); Kelley v. State, 597 So.2d 262
(Fla. 1992).
\115\See, e.g., Turner v. Dugger, 614 So.2d 1075 (Fla. 1992)
(Barkett on result only); Henderson v. Singletary, 617 So.2d
313 (Fla. 1993) second motion for post-conviction relief,
Barkett on result only); Parker v. Dugger, 550 So.2d 459, 461
(Fla. 1989) (second motion for post-conviction relief, first
motion for habeas); Scott v. Dugger, 550 So.2d 459, 461 (Fla.
1989) (second motion for post-conviction relief, first motion
for habeas); Scott v. Dugger, 604 So.2d 465 (Fla. 1992);
Puiatti v. Dugger, 589 So.2d 231 (Fla. 1991); Mendyk v.
State, 592 So.2d 1076 (Fla. 1992); Jennings v. State, 583
So.2d 316 (Fla. 1991); Johnston v. Dugger, 583 So.2d 657
(Fla. 1991) (Barkett on result only); Koon v. Dugger, 619
So.2d 246 (Fla. 1993); Kight v. Dugger, 574 So.2d 1066, 1073
(Fla. 1990).
\116\Congressional Record, March 22, 1994, at S3394.
\117\ 543 So.2d 1244 (Fla. 1989).
\118\See, e.g. Gaskin v. State, 615 So.2d 679 (Fla. 1993);
Mills v. Singletary, 606 So.2d 623 (Fla. 1992).
\119\527 So.2d 800 (Fla. 1988).
\120\See, e.g., Clark v. State, 613 So.2d 412, 415 (Fla.
1992); Henry v. State, 613 So.2d 429, 434 (Fla. 1992);
Durocher v. State, 604 So.2d 810, 812 (Fla. 1992); Henry v.
State, 586 So.2d 1033, 1038 (Fla. 1991).
\121\See Thompson v. Oklahoma, 487 U.S. 815 (1988). Not
surprisingly, Barkett insists in her lone dissent in LeCroy
that the Supreme Court has ``left this question open.''
\122\See Miller v. California, 413 U.S. 15 (1973).
\123\Congressional Record, March 22, 1994, at S3394.
\124\Congressional Record, February 24, 1994, at S1835.
\125\Id.
\126\Id. at S1834.
\127\Roman, ``Judicial Nominee's Missing Words Hit,''
Washington Times, February 26, 1994, at A5.
____
[From the Washington Times, Oct. 15, 1993]
Rosemary Barkett: Clinton Nominee
(By Samuel Francis)
In his weekly radio address to the nation last week,
President Clinton chose for his theme the subject of what a
tough guy he is on crime. He seized the opportunity to plug
his crime bill now before Congress and struck postures on the
need to catch criminals, convict criminals, and--sometimes--
kill criminals.
``This bill,'' preached the president, ``will help to
restore a system where those who commit crimes are caught,
those who are found guilty are convicted, those who are
punished--sometimes by imposition of the death penalty for
especially serious crimes.''
Well, no it won't. Whatever the merits of Mr. Clinton's
crime bill, it will have no effect whatsoever on catching,
convicting and punishing criminals. To do that, you have to
have tough judges, and at the same time Mr. Clinton is
blustering about his own toughness on crooks, he's sending to
the federal bench some of the sorriest substitutes for judges
since Joseph Stalin held the Moscow Show Trials.
One recent Clinton judicial appointment is Rosemary
Barkett, now a justice of the Florida Supreme Court, whose
name the administration sent up to the Senate Judiciary
Committee last month. Her hearings for a seat on the 11th
U.S. Circuit Court of Appeals haven't been scheduled yet, and
if Mr. Clinton were wise, the hearings would never take
place. Judge Barkett will be to the Clinton administration
what--Lani Guinier was to the Clinton administration.
In 1992, Judge Barkett joined in a dissent to a Florida
capital punishment case that involved one of the most brutal
racial murders in that state's history. The defendant, Jacob
Dougan, was the leader of a group styling itself the Black
Liberation Army, the ``apparent sole purpose of which'' the
trial judge described as being to ``indiscriminately kill
white people and start a revolution and a race war.''
In 1974 Dougan and four of his liberators kidnapped an 18-
year-old white man at random, took him to a trash dump and
stabbed him repeatedly. When their victim pleaded for his
life, Dougan himself shot him twice. Dougan then made tape
recordings of his boasting of the murder and sent one to his
victim's mother. ``Ah, it was beautiful,'' exulted the killer
on the tape, ``You should have seen it. Ah, I enjoyed every
minute of it. I loved watching the blood gush from his
eyes.''
After 18 years in what passes for a criminal justice system
in this country, Dougan's death sentence was affirmed by the
state supreme court, but not without one last gurgle from
Judge Barkett about love and understanding. ``This case,''
reads the dissenting opinion in which she joined, ``is not
simply a homicide case, it is also a social awareness case.''
Dougan, you see, thought he was doing the right thing when
he decided to slaughter white people, and that makes
different. ``His frustrations, his anger, and his symbolic
obsession of injustice overcame reason,'' Judge Barkett's
dissent blathers. ``The victim was a symbolic representation
of the class causing the perceived injustices.'' Dougan
shouldn't be executed, she concluded.
In other words, Judge Barkett endorsed the quackery that
committing murder as a response to purported injustices, even
if the victim himself had nothing to do with them, justifies
a lighter sentence. That kind of reasoning is consistent with
some of her other dissents as well.
In yet another death penalty dissent in 1991. Judge Barkett
concluded that the killer, one Jerry Wickham, didn't merit
death because at the time of the crime, he was a ``mentally
deficient, socially maladjusted individual.'' Wickham and his
family were about to run out of gas, so he robbed and killed
a passing motorist, taking $4.05 from his pockets.
``If the death penalty is supposed to be reserved for the
most heinous of crimes and the most culpable of murderers,''
Judge Barkett herself wrote in dissent from the court's
affirmation of the death sentence, ``Jerry Wickham does not
seem to qualify.'' Your have to wonder. Just what sort of
crime, in this woman's learned opinion, would be sufficiently
heinous to qualify for a two minute snuggle with Old Sparky?
There are several other such cases of Judge Barkett's
dissents in death penalty cases, almost always on the most
specious and subjective grounds. It's neither the law nor
justice that guides her gavel but what ever feelings and
heartthrobs flutter in her attic that day.
If Judge Barkett makes it through the Senate to a federal
judgeship, she'll be within easy reach of a future seat on
the U.S. Supreme Court, whence she could shoot her judicial
poison into the jugular of the Constitution itself. Mr.
Clinton knows that, so when he tells you how tough on crime
he is, he's simply lying. With generals like Judge Barkett in
charge of his war on crime, you can place your bets on the
enemy.
Mr. HATCH. Mr. President, I yield 6 minutes to the distinguished
Senator from Delaware.
The PRESIDING OFFICER (Mr. Kerrey). The Senator from Delaware is
recognized for 6 minutes.
Mr. ROTH. Mr. President, among the most serious responsibilities that
the constitution entrusts to those of us in this body is to provide our
advice and consent regarding nominees to the Federal Bench. Every
nominee, if confirmed, will potentially have a broadbased lifetime
influence on the law. While we should be prepared to defer to the
President's judgment in most cases, these nominees must be reviewed
with careful scrutiny.
Based upon her judicial record and her testimony before the Judiciary
Committee, I must oppose the confirmation of Florida Chief Justice
Rosemary Barkett to be a judge of the U.S. Court of Appeals for the
Eleventh Circuit. In a number of cases, Chief Justice Barkett has gone
well beyond the proper judicial role into that more properly occupied
by the legislature, ignoring precedent and well-settled principles of
law in the process.
While I am troubled, for example, by Chief Justice Barkett's misuse
of the Federal equal protection clause and of Federal substantive due
process, which the nominee herself testified as being ``careless,'' I
am most disturbed by her philosophy regarding criminal law issues. At a
time when violent crime has reached epidemic proportions throughout our
Nation, I do not believe the American people will abide us confirming a
nominee who has consistently and mistakenly accorded greater concern to
those who break the law than to their victims or to those who enforce
the law.
Let me provide some examples of Justice Barkett's troubling criminal
law decisions. In the case of Stall versus State, Justice Barkett
joined a dissent striking down a State obscenity statute, stating that,
``A basic legal problem with the criminalization of obscenity is that
it cannot be defined.'' That statement is contradicted by the U.S.
Supreme Court's landmark obscenity decision in Miller versus
California, which the nominee failed to even mention in her dissent.
Another important area of criminal law in which I believe Chief
Justice Barkett goes beyond the acceptable limits of a judge's
responsibility to fairly apply the law concerns death penalty cases.
One of the most disturbing of Chief Justice Barkett's opinions was
the dissent she joined in the death penalty case of Dougan versus
State. This case has been much discussed during the course of this
nomination process. Briefly, this involved a grotesque murder of a
hitchiker, following which the killer sent tapes bragging about the
murder to the victim's mother. The nominee joined a very troubling
dissent that would have reduced the death penalty to life imprisonment,
with eligibility for parole in 25 years. The dissent compared this
cold-blooded, premeditated murder--which the evidence indicated was
motivated by racial hatred--with the emotional conditions of a
disenchanted marriage that results in domestic homicide. That was the
basis on which she voted to not impose the death penalty. I believe
this is an unacceptable standard for judges to use. We rely on judges
to apply the law evenly and to objectively apply penalties based on the
facts of the case. To expect less is to badly distort our criminal
justice system.
There are many other criminals cases which could be cited in which
this nominee has shown an untoward concern for criminal defendants and
only perfunctory concern for criminal victims.
Judges have the ability to either enforce or reverse the efforts of
legislators, police and prosecutors in fighting our Nation's violent
crime problem. It does little good for Congress to pass tough crime
bills if our efforts are thwarted by judges motivated more by sympathy
for criminals than by an understanding of the fear honest citizens face
each day on the streets of our Nation. What kind of message is the
administration sending when it talks tough on crime in town meetings
but sends up judicial nominees who are squishy soft on crime? I would
urge my colleagues to reject this nomination.
Mr. President, I yield the floor.
Mr. HATCH. Mr. President, I yield 9 minutes to the distinguished
Senator from Iowa.
The PRESIDING OFFICER. The Senator from Iowa, Mr. Grassley, is
recognized for 9 minutes.
Mr. GRASSLEY. Mr. President, I thank Senator Hatch for his leadership
on this matter and taking the time to make sure that this issue is
fully discussed. This nomination is important from the standpoint of
the signal that it sends about the real predilection of this
administration on judicial appointments. It is quite contrary to the
direction that they want us to believe that they are taking, of being
tough on crime. That aspect of this debate is as important as the
personal qualifications of their nominee.
So because of the importance of this nominee, as well as very
substantive reasons for disagreeing with this nominee's qualifications
to be on the eleventh circuit court of appeals, I rise to talk for a
few moments about this nomination, and to say why I oppose Justice
Rosemary Barkett for the U.S. court of appeals for the eleventh
circuit.
When the Judiciary Committee considered this nomination--that was
just last month--I voted against her. I want to explain the reasons why
I will vote against her again today when the full Senate votes.
First, I share the concerns that many of my colleagues have expressed
regarding her theories on criminal law. Many of her decisions are quite
inconsistent with President Clinton's stated stance of being tough on
crime and wanting to do everything he can to fight crime. This nominee
substitutes her own subjective sense of fairness, often finding
defendants who have committed outrageously violent murders to be
victims of their own circumstances.
Second, in my discussions with her, she conceded that she had made
mistakes in some of her opinions, or that they were ``inartfully
drafted.'' Those last two words are her words.
Mr. President, we must demand of people who are being placed on the
judiciary, particularly on the highest courts of this land, the
highest, and most rigorous standards.
There can be no place for a judge on this court, or any court, who
says that she ``mistakenly'' cited the U.S. Constitution in an
obscenity case as a basis for her own reasoning that there was no
standard under which obscenity can be defined. In making that
statement, she ignored the Miller test and again applied her own
standard of fairness.
Third, I have very serious doubts about her impartiality. In a
reapportionment case, among many that I could cite, she asserted that
she would choose a specific reapportionment plan just because it was
submitted by a particular party--the NAACP. In her words: ``because it
is the organization that has traditionally represented the position
that advances all minority interests.''
Will she decide other cases on the basis of who the litigant is
instead of what the law is? And in the Echarte case, she wrote a
dissent adopting the position of the Florida Trial Lawyers, stating
that a cap on noneconomic damages in medical malpractice cases was
unconstitutional. It just happens that that group had just named an
award for her. She presented the award at the Florida Trial Lawyers
Annual Dinner.
Let us look at the ABA code of judicial conduct, canon 2, in regard
to this. It states:
A judge should not lend the prestige of her office to
advance the private interests of others, nor should she
convey or permit others to convey the impression that they
are in a special position to influence her.
Then in canon 3, the ABA code states that:
A judge should disqualify herself in a proceeding in which
her impartiality might reasonably be questioned.
The Judicial Conference has interpreted these canons and applied them
in situations involving Federal judges. There is a 1975 advisory
opinion which states the following:
Judges who have achieved a preeminence such as to prompt
public recognition [as in a public testimonial or award]
should ordinarily be able to accept such honors.
It goes on to say:
Before accepting such recognition, however, a judge should
take certain factors into consideration.
Notwithstanding the spirit in which the award was
proffered, it should not be accepted from an organization
whose public image embodies a clearly defined point of view
on controversial legal, social, or political issues. Neither
should [it] be accepted from an organization which is apt to
be before the court as a litigant.
Canon 5 cautions against a judge being a speaker or guest of honor at
an organization's fundraising events. The canon states:
In addition to the nature of the organization involved, the
judge should be concerned that his presence is not merely a
device to promote publicity and the sale of tickets.
I am not familiar enough with the trial lawyers' dinner in this
specific case to know if it was in fact a fundraiser. But I do not
think there can be any disagreement about the legal and political
positions of the trial lawyers, and they were before the Florida
Supreme Court in the Echarte case at the time Justice Barkett lent her
name to the award.
For these reasons, I cannot support elevating Justice Barkett to the
eleventh circuit.
I yield the floor and the remainder of the time allotted to me.
Mr. HATCH. Mr. President, how much time does the distinguished
Senator from Idaho need?
Mr. CRAIG. Five minutes.
Mr. HATCH. I yield 5 minutes to the Senator from Idaho [Mr. Craig].
The PRESIDING OFFICER. The Senator from Idaho [Mr. Craig], is
recognized.
Mr. CRAIG. Mr. President, I thank my colleague from Utah, the ranking
senior Republican on the Judiciary Committee, for yielding me time to
speak in relation to the nomination of Chief Justice Rosemary Barkett
to a seat on the U.S. court of appeals of the eleventh circuit.
Some today have called literally any opposition to this confirmation
politically motivated. However, as my colleagues know, in the past I
have voted to confirm even when political beliefs of the nominee
differed radically from my own.
Frankly, not all of my advisers have thought that wise. In fact, some
of my constituents would prefer me to make political beliefs a litmus
test for judicial nominees. My respect for the Constitution, though,
frankly, Mr. President, prohibits me from doing that.
If the President's powers to nominate a judge means anything, it must
mean the power to nominate one of the President's own philosophical
bent or political views. But, just as important, if the Senate's power
to confirm means anything, it must mean the responsibility to disagree
with the President when the nominee is unqualified for reasons other
than political beliefs.
My decision on a judicial nominee is based on my evaluation of his or
her character, competence, and judicial philosophy; that is, how the
nominee views the duty of the court and its scope and authority. It is
my strong belief that members of the Federal judiciary should neither
rubberstamp legislative decisions nor overreach to act as a substitute
legislator.
In this case, character is not in question. On the contrary, there is
much to admire about a nominee who overcame language and cultural
barriers to become the first woman to serve on the Florida Supreme
Court, whose background includes service as a nun and a school teacher,
who is a highly regarded and awarded achiever for the Florida bar.
As to competence, I know this nominee received the American Bar
Association's highest rating. Even so, I am aware that some members of
the legal profession believe Justice Barkett's very unusual handling of
constitutional and other issues puts her competency in reasonable
question. While that may be a legitimate and important subject to
debate among lawyers and judges trained in legal theory, I am not going
to attempt to enter into that scholarly debate--except to note in
passing that competence does not appear to be a question in this
instance.
Some of those unusual opinions do, however, concern me because of
what they reveal about the nominee's judicial philosophy. In short,
this judge does not appear to be constrained by constitutional limits
or on judicial decisionmaking, and instead has given every indication
that she is likely to pursue a political activist agenda if appointed
to a position on the Federal bench.
An example that I found particularly striking was her opinion on the
LeCroy case. The perpetrator in the case was 17 years and 10 months old
at the time of the crime. The sentencing judge found that this was no
constitutional bar in imposing a death penalty. Although he gave
careful consideration to the age factor, he found the individual in
question was mentally and emotionally mature enough to have realized
the difference between right and wrong in the brutal killing of another
human being. Furthermore, it was a longstanding principle of Florida
law that a child of any age charged with a capital crime must be tried
and handled in every respect as if he or she were an adult.
The Florida Supreme Court voted 6 to 1 to affirm the death penalty,
with Judge Barkett the lone dissenter. Remarkably, her view was that
imposing the death penalty violated both the Florida law and the eighth
amendment to the U.S. Constitution, a position the U.S. Supreme Court
later rejected.
This Senator was one of the majority in this body who voted 6 months
ago to table a proposal banning the death penalty for juveniles. I can
understand the discomfort some have with this issue, and I can even
understand why Justice Barkett may have personally abhorred the
decision of the sentencing judge. However, that does not justify
ignoring State law forcing Federal jurisprudence to conform to her own
sociological theory.
There are clearly other issues that question whether this person, if
properly placed, will stay within the bounds of the Constitution or
move on as she has throughout her career on her political philosophy in
rendering decisions based on that. It is for that reason that I stand
in opposition to her confirmation and will vote accordingly.
I yield back the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. I yield 5 minutes to the minority whip.
The PRESIDING OFFICER. The Senator from Wyoming is recognized.
Mr. SIMPSON. Thank you, Mr. President. I want to make a very brief
comment about this nomination. Mr. President, Justice Barkett and I had
a long visit in my office to discuss some of her cases, as well as her
background and qualifications for the circuit court of appeals position
to which she has been nominated. It was a very good visit. I was very
impressed by her as a person, and I enjoyed very much my time with her.
We discussed a few of Justice Barkett's more controversial cases, and
she explained her position and the reasons for her decisions or
dissents. I thought that was very important.
Mr. President, in most cases she attributed the controversy over her
decisions to the critics lack of understanding of ``capital punishment
jurisprudence.'' Justice Barkett pointed out that the Supreme Court
requires justice's ``to look behind every case--considering aggravating
factors as well as mitigating factors.''
That is indeed the law of the land, but I do not agree with Justice
Barkett's application of that law in certain cases during the years she
has served on the Supreme Court of Florida.
Mr. President, I want to point out here that Justice Barkett
obviously has the legal and judicial experience for the Federal bench,
and I have no doubt that her judicial temperament is fully acceptable
and appropriate.
However, I am very disturbed when she finds it necessary during her
hearing before the Judiciary Committee to retract or explain that she
mis-spoke--``mis-wrote'' actually would be the term--when she cited the
U.S. Constitution as the basis for a decision she authored in a
particular case. That simply should not occur.
I am also concerned that Justice Barkett may too quickly, and too
often, see the criminal as a ``victim of society,'' and argue that the
criminal's illegal activity should somehow be mitigated because of the
perceived injustices that he or she has suffered at the hands of our
society, a convenient scapegoat in our times.
I do not believe that the courts should somehow attempt to excuse
criminal activity by placing a share of responsibility for heinous
crimes on society.
I am also concerned that Justice Barkett seems, in some instances at
least, to stretch far in efforts to reach a position that I fear may
represent her personal views more than it represents existing law and
precedent.
That constitutes judicial activism, one of the most important
disqualifications for a Federal judgeship, as far as I am concerned.
Mr. President, I firmly believe that the President has not only the
duty, but also the right, to choose nominees to the Federal judiciary
who share his views. We must expect that he will nominate persons who
share his philosophy and ideology.
And when the nominee is qualified by education, experience and
judicial temperament, he or she should not be opposed because I, or any
other senator, disagree with the ideology of the nominee.
However, the ideology and the social values of the nominee must be
within the ``mainstream'' of American views and values.
At a time when crime, particularly violent crime, is viewed by the
American public as the most serious problem facing our country, and at
a time when the Congress is debating legislation to deal in a firm and
serious way with violent crime, and at a time when the President of the
United States is calling for congressional action to address violent
crime, I believe we must look closely at the thinking and the social
values of judicial nominees who will be dealing with this very serious
problem.
I have reluctantly decided that Justice Barkett's views of the
criminal and the causes of criminal activity, and her record on and the
application of the criminal laws and sentencing are not within the
mainstream of American thinking on this issue.
This, combined with Justice Barkett's tendency toward judicial
activism, has brought me to the conclusion that I must vote against the
confirmation of Justice Barkett to the U.S. Court of Appeals.
I thank the Chair, and I thank my colleague from Utah and commend him
on his fine work as the ranking member of the Senate Judiciary
Committee.
I thank the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. Mr. President, I yield 15 minutes to the distinguished
Senator from Mississippi.
The PRESIDING OFFICER. The Senator from Mississippi is recognized.
Mr. LOTT. Mr. President, I thank the distinguished Senator from Utah
for yielding me this time. I am sorry I have not been able to be here
for all of the discussion. But I do think this is a very important
nomination, and it goes way beyond just this particular nomination to a
circuit court.
I rise in opposition to the nomination of Judge Rosemary Barkett,
currently the chief justice of the Florida Supreme Court, to be judge
on the U.S. circuit court for the eleventh circuit.
Before I present my objections to this nomination, I want to talk
briefly about the state of things in this country. Recently the issue
of crime has overtaken the economy and, yes, even health care as the
number one issue of Americans. There is a national sense of unease.
I just spent 2 weeks back in my State, and I found that people have
gone, when it comes to crime, from being concerned and worried and
scared, to mad. They really do not understand the type of crime that we
are having now--crack cocaine in our schools, shootings in our schools,
children carrying guns in our schools, senseless, motiveless drive-by
shootings, and they really are angry about it and they want some
action.
They know the Federal Government cannot totally control it, but they
know the Federal Government has a role, they know the States have a
role, and the local governments and, yes, the individuals in the
communities have a responsibility.
But the main thing they want is some results. The American people
want to stop the mayhem they see on our streets, not only in our big
cities but in the suburban areas and in rural areas. Crime is
everywhere.
We have an executive or Presidential commitment to crack down on
crime. The President has been having some events just this week to
emphasize his concern about crime, and many of the things he talks
about that we need to do, certainly I agree with. I offered the
amendment in the Senate last year for three strikes and you are out:
commit three violent felonies, and you get life. And the President
stood in the well of the House of Representatives in his State of the
Union Address this year, and he endorsed that concept.
Now we have Harvard lawyers and social reformers and others saying,
oh, well, the three-strikes-and-you-are-out amendment, it might fill up
our jails.
The only thing I run into when I have spoken to different groups from
New York City to Mississippi, is why do you give them three violent
crimes?
So it makes good sense, and the President has endorsed it. So, we
have a Presidential resolve of sorts. We have a legislative resolve
because the Senate passed a very comprehensive crime package last year.
The other body is having some difficulty getting its act together
passing little slithers of the crime package. But today they are trying
to get a bigger package together. I hope they do not follow their usual
rule, which has been to be soft on the criminal and not worried at all
about the victim. That is what has been basically the crime legislation
that has come out of the House over the past 20 years.
But we do have movement in this legislative area and that is
important.
But Americans are very uneasy about the third branch of Government. A
recent Gallup Poll showed 83 percent of Americans felt that the
judicial system is not harsh enough--not harsh enough--on criminals.
I do not want to put down the thousands of State and Federal judges
who deal with wave after wave of criminal depravity every day. The
American people appreciate it. It is a tough job. A lot of these judges
do a wonderful job and they have innovative ideas for dealing with
criminals and for trying to rehabilitate them where it may be possible.
So you do not indict them all.
But the problem with some judges is that they put their personal
politics before the law, and the rights of society and the people
upholding the law. There are judges who forget the first duty of
Government is to protect life and property. There are judges in the
Federal judiciary of this country who for the past 20 or 30 years have
twisted the law and precedents to protect the thug, making the criminal
a victim and leaving the real victim with no recourse.
That went on for part of 1950's and 1960's and 1970's. In the 1980's,
we started to slowly turn that around a little bit by getting, yes, if
you will, strong law-enforcement lawyers and judges on the bench and
moving them up the line.
Judge Rosemary Barkett is an activist judge. She is one of those who
has been worried about the criminal, sometimes appearing to forget
about the victims. She has called criminals the victims of society. I
have heard that somewhere before, usually in articles written by
certain liberal groups and lawyers.
Judge Barkett has written against curbs on obscenity and against
curbs on unseemly public conduct. She backs organized labor instead of
the rights of the working man or woman. And these are the reasons why I
oppose her nomination to the U.S. Court of Appeals. I think she
epitomizes, she is a perfect example of the problem with the Federal
judiciary over the past 30 years, and she has indicated that time after
time after time.
Maybe she did go along with the death penalty sometime, but other
times she dissented. I will not go over all the Florida cases that the
Judiciary Committee has already looked at. Perhaps they have been
mentioned on the floor.
But I ask unanimous consent that a summary of Judge Barkett's
questionable decisions be printed in the Record at the conclusion of my
remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. LOTT. Let me point out what Judge Barkett has said about
criminals. In 1991, in the Wickam versus State case, Wickam shot a man
in the back, chest, and head and stole $4.05 from the corpse. Can you
believe that--kill a man for $4?
The Florida Supreme Court voted to affirm the death sentence, but
Judge Barkett dissented, blaming the ``milieu of violence'' that the
killer grew up in. He had a rough life, therefore there were mitigating
circumstances. Judge Barkett said the killer was ``mentally deficient''
and ``socially maladjusted''--thus, he should be spared.
In the Dougan versus State case, 1992, the judge voted to overturn
the death sentence of Jacob Dougan, who brutally murdered a teenager,
and sent a tape describing the killing to the victim's mother.
Now that is pretty heinous; worse than just about anything I ever
heard of. You kill someone and then you send a tape of the killing to
the victim's mother. Judge Barkett called the case a ``social awareness
case'' and blamed the killing on ``discordant racial relations which
have permeated our society.'' I wonder what the victim's mother would
have called it.
In the Hall versus State case in 1993, Hall and an accomplice raped,
beat, and shot to death a woman who was 7 months pregnant. The Florida
Supreme Court again affirmed the death penalty, but Judge Barkett
dissented. She said the killer had had ``emotional deprivation'' in his
life.
In Hudson versus State, in 1989, Hudson broke into his former
girlfriend's house, killed her roommate when the roommate surprised
him. The Florida Supreme court voted 6 to 1 to affirm the death
penalty. Judge Barkett dissented, saying the fact that the killer had
been ``surprised by the victim during his burglarizing of the home''
meant that he was ``unable, to a certain extent, to conform his
behavior to the requirements of law.''
That is a new one. How can burglarizing and murder ever confirm to
``the requirements of the law?''
There is more, but I will not take up that much more of the Senate's
time. Judge Barkett was very evasive. And from what I saw during her
hearing, Senators got very little information out of her. What we do
know is what we have read of her opinions. This is a case where she has
voted, she has ruled, she has written and her opinions are out of the
mainstream.
Over the past few weeks, I have been reading some of the comments of
Senators here on the floor about possible Supreme Court nominees, and
why they would not support this nominee or that nominee. One of the
phrases I have heard is, he or she was out of the mainstream. Well,
Judge Barkett is a nominee who is out of the mainstream.
Maybe intentionally or absent-mindedly, the administration has sent
to this legislative body judicial nominees from the lower courts whose
political philosophy overrules their duties of impartiality in judging
the law. The political philosophy of some of these nominees also has
been contrary to what the administration has been saying about crime in
this country. Some of these past, present, and future nominees, not
bound by State or local precedent, might use their Federal offices to
further erode the protections that Americans should enjoy by right.
The right to walk the streets safely at night, the right to see
justice done, the right of victims to have redress--all of these
Americans are entitled to. Only a triple resolve of all three branches
of Government--the executive, the legislative, and, yes, especially the
judiciary--to make tough laws, to execute them faithfully, and to
interpret them fairly--only this would ensure the security that we
deserve in this country.
And when I talk to citizens and when I talk to law enforcement
people, they say, without the cooperation of the courts, what use is
there? If policemen arrest a criminal and they get out on a
technicality because the policemen did not read them their rights just
so, because they did not have the proper arrest papers, and the
criminals' appeals go on, people get tired of that. The only way to
stop this is to change the law, or change the judges who are
misinterpreting the law in my opinion.
President Clinton talks a lot about security, and he should. Some of
his judicial nominees, though, undermine his message and undermine the
law. Judge Barkett is one of these nominees.
I believe the President has a right to choose whomever he wants for a
post, but the Senate has a right, under the Constitution, to reject
that nominee. The President is not the only one that is responsible. We
have a very high responsibility, especially when it comes to the
judiciary.
And I put a greater emphasis on the judiciary than I do other
executive branch appointments. I really am going to give the President
the benefit of the doubt on a Federal Maritime Commission appointment
or an Assistant Secretary of Education, unless there is some really
debilitating problems.
But when it comes to the judiciary and lifetime appointment to these
appellate courts, the Senate really needs to ask questions, and we need
to pursue their record with great relish.
If we say to the American people that we want to get tough on crime,
we should not be confirming some of these nominees. Anyone who seeks to
undermine the law and public order should not become a Federal judge.
This is not about politics. This is not about partisan politics. This
is about the safety and security of the American people.
It is time for Senators to not only talk the talk but walk the walk.
This vote is not about the nominee; it is about her record.
The question for us today is, will our rhetoric match our actions? We
talk tough on crime and yet if we let a judge go through confirmation
with this long history of voting to let criminals off the death penalty
and a whole myriad of other areas, then we are not going to pass
muster.
A vote for this nominee--for this philosophy--says to the American
people that all we have to offer them is rhetoric, not judges who will
help make the streets safe by rightly interpreting the law.
Judge Barkett is an activist judge who will sabotage this Nation's
fight against criminals. Let me say again that she has been the most
antideath-penalty member of the Florida Supreme Court. She has a
record. She believes antiobscenity laws are unconstitutional. She has
struck down antiloitering laws used against drug-dealing and
prostitution.
Judge Barkett believes cold-blooded murderers are victims of society,
and has voted to restrict police powers.
Tell me, is this a judge who will be tough on crime? Obviously, no.
From now on, the standard judicial nominees will have to meet is
whether they have been tough on crime. I think the American people are
demanding that.
If these nominees have not been tough on crime, then they should not
be confirmed. Judge Barkett has been soft on criminals in many, many
instances.
Oh, perhaps you could say she voted for the death penalty here or
there. But in many, many instances she voted against it. In many
instances, she voted what most people would say were soft-on-crime
positions, ``Because of society.''
So I urge my colleagues to vote against her confirmation.
I yield the floor.
Exhibit 1
Memorandum: Confirmation Hearings on Judge Rosemary Barkett
President Clinton has nominated Rosemary Barkett, currently
chief justice of the Supreme Court of Florida, to the U.S.
Court of Appeals for the 11th Circuit (FL, GA, AL). Her
hearing before the Judiciary Committee begins Thursday,
February 3.
I. BARKETT BLAMES EVERYONE BUT THE CRIMINAL
DOUGAN v. State (1992). Barkett voted to overturn the death
sentence of Jacob Dougan, the leader of the Black Liberation
Army who slaughtered a teenager and sent a tape describing
the killing to the victim's mother. The court voted 4-3 to
affirm the death sentence. Barkett joined an opinion saying
that the case was ``a social awareness case. * * * The victim
was a symbolic representation of the class causing the
perceived [racial] injustice.'' Barkett blamed the killing on
``discordant racial relations which have permeated our
society'' and found ``redeeming values'' in the killer that
meant the death penalty was inappropriate.
Wickham v. State (1991). Wickham shot a man in the back,
chest, and head, and robbed his corpse of $4.05. The court
voted 4-2 to affirm the death sentence. Barkett voted again
to spare the killer, this time blaming this murder on the
``milieu of violence'' in which the killer grew up. Here, she
said the death penalty was inappropriate because the killer
was ``mentally deficient'' and ``socially maladjusted.''
LeCroy v. State (1988). LeCroy was 17 years old when he
killed a man, robbed him, and killed the man's wife to
silence her as a witness. The trial judge found LeCroy
mature. The court voted 6-1 to affirm the death sentence.
Barkett alone voted to spare the killer, blaming all youth
crime on ``a failure of family, school, and the social
system.'' She said executing anyone under 18--no matter what
their crime--violates the U.S. Constitution.
Hall v. State (1993). Hall and a companion raped, beat, and
shot to death a woman who was seven months pregnant. The
supreme court voted 5-2 to affirm the death sentence. Barkett
voted to spare the killer because he had an IQ of 60 and had
experienced ``emotional deprivation'' during his life.
Porter v. State (1990). Porter stalked his former lover for
two days, and then murdered her and her new boyfriend. The
court voted 5-2 to affirm the death sentence. Barkett voted
to spare the killer. She said that this case arose from ``a
lovers' quarrel'' and that Porter was not capable of
premeditation because of his ``emotionally charged,
desperate, frustrated desire to meet with his former lover.''
Hudson v. State (1989). Hudson broke into his former
girlfriend's home. Her roommate surprised him and he killed
her. The court voted 6-1 to affirm the death sentence.
Barkett alone voted to spare the killer. The fact that he had
been ``surprised by the victim during [his] burglarizing of
the home'' meant that he was ``unable, to a certain extent,
to conform his behavior to the requirements of the law.''
Adams v. State (1989). Adams was convicted in 1978 of
murdering an 8-year-old girl with whom he tried,
unsuccessfully, to have sexual relations. State and federal
courts ruled nearly a dozen times against his attempts to
avoid the death penalty. The court finally voted 5-2 to again
affirm the sentence. Barkett voted to spare the killer and
thought he should have had more opportunity to present
evidence of ``learning problems'' while growing up.
ii. barkett ties the hand of law enforcement
Cross v. State (1990). With Cross' permission, detectives
searched her bag and found a round object wrapped in brown
tape, a common way of transporting drugs. They arrested her
and later found cocaine. Barkett said the search was illegal
and wanted a per se rule that an object must be an
``inherently suspect item'' for probable cause to exist.
Bostick v. State (1989). With Bostick's permission, police
searched his bag on a bus and found drugs. Barkett wrote the
opinion establishing a per se rule against police searching
for drugs on buses, even with permission. ``This is not
Hitler's Berlin, nor Stalin's Moscow, nor is it white
supremacist South Africa.'' The Supreme Court reversed her 6-
3.
iii. barkett opposed laws against obscenity and prostitution
Stall v. State (1990). The court upheld Florida's anti-
obscenity law. Barkett dissented: ``A basic legal problem
with the criminalization of obscenity is that it cannot be
defined.'' She joined an opinion recognizing a constitutional
right of access to entertainment and condemning anti-
obscenity laws as vehicles ``for restricting individual
autonomy.''
Wyche v. State (1993). The court upheld Wyche's conviction
for loitering for the purpose of prostitution. Barkett
dissented; her position would probably invalidate any
regulation of public behavior, including disorderly conduct.
iv. barkett opposes the right to work
United Teacher of Dade v. Dade County School Board (1986).
Barkett joined a dissenting opinion holding that Florida
could not give bonuses to outstanding teachers because it
would infringe on the teachers' union's bargaining power. She
admitted this was a ``liberal construction'' of state law.
Florida Bar re Amendment to Rule 2-9.3 (Legislative
Policies). Barkett joined in approving a rebate scheme that
denied procedural protections for members of the Florida Bar
who objected to use of their compulsory union dues for
political purposes. The U.S. Supreme Court has held that
these protections are constitutionally necessary.
The PRESIDING OFFICER. Who yields time?
Mr. LOTT. Mr. President, I suggest the absence of a quorum and I ask
the time be equally divided.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GRAHAM. 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. GRAHAM. Mr. President, I ask unanimous consent that the vote on
the confirmation of Rosemary Barkett to be U.S. circuit judge for the
eleventh circuit court of appeals be set for 3:15 p.m.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAHAM. Mr. President, I suggest the absence of a quorum and ask
that the time under the quorum call be equally divided.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will call the roll.
The bill 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.
Mr. HATCH. Mr. President, some have suggested that the Foster case is
not as broad as some of the critics say. I believe the distinguished
Senator from Florida has made that suggestion.
Let me just say this.
Justice Barkett's partial dissent in the Foster case adopts an
approach that is akin to the so-called Racial Justice Act that the
Senate has repeatedly rejected, and rightly so. As I have pointed out,
Justice Barkett's approach in Foster would effectively paralyze
enforcement of the death penalty.
Now, Senator Graham of Florida has defended Justice Barkett's Foster
opinion. In particular, he has claimed that her approach was highly
specific compared to that proposed by the so-called Racial Justice Act,
which Senator Graham has opposed. Senator Graham attached to his
remarks a purported copy of Justice Barkett's Foster opinion.
Curiosly, for one reason or another, the copy of Justice Barkett's
Foster opinion that is attached to Senator Graham's comments omits
three key paragraphs from that opinion--paragraphs that conclusively
rebut the contention that Justice Barkett's approach in that case is
highly specific or indeed significantly different in any respect from
the so-called Racial Justice Act. In particular, Justice Barkett
asserts in these missing paragraphs:
I believe that statistical evidence of discrimination in
capital sentencing should * * * establish a
violation of article I, section 2 of the Florida
Constitution. ``Statistical'' evidence should be construed
broadly to include not only historical analysis of the
disposition of first-degree murder cases in a particular
jurisdiction, but also other information that could suggest
discrimination, such as the resources devoted to the
prosecution of cases involving white victims as contrasted to
those involving minority victims, and the general conduct of
a state attorney's office, including hiring practices and the
use of racial epithets and jokes.
So much for the claim that Justice Barkett's approach in Foster was
limited to allegations of specific acts of racial discrimination.
This is hardly the first time that the supporters of Justice Barkett
have made false claims in her defense. Indeed, the strategy of her
supporters--especially of the White House--appears to be one of
misstatements and misdirection. This is not surprising, since a candid
assessment of Justice Barkett's record shows that she is starkly at
odds with the President's tough-on-crime rhetoric.
The standard for reviewing judicial nominees must be less deferential
than the standard for reviewing executive branch nominees.
Federal judges have lifetime tenure and are unaccountable to the
political branches.
If the President nominates liberal activist judges, they will
override the political branches and impose their own agenda in the
guise of constitutional and statutory interpretation. The second point
I would like to make here is the basic measure of any lower court
nominee's fitness for the Federal bench is whether that nominee will
faithfully apply Supreme Court precedent and will construe the
Constitution and the Federal laws as they are written, or whether that
nominee will instead attempt to impose his or her own policy or
ideological preferences.
In the constitutional arena, this standard has important application
with regard, for example, to the equal protection and due process
clauses, which, if misused, can become completely unconstrained tools
of judicial activism.
This standard is also particularly important in a broad array of
criminal law matters. For example: Search-and-seizure law: The fourth
amendment strikes a careful balance between the interests of the
community in detecting crime and the interests of suspects in not being
subjected to unreasonable searches and seizures. Overly expansive
readings of search-and-seizure protections cripple the police battle
against drug dealing and other crimes. Will the nominee be faithful to
Supreme Court precedent in this area? Or will the nominee evade or
misconstrue Supreme Court precedent and find new ways to hamstring the
police?
Maintaining community standards: The Constitution and Supreme Court
cases leave local communities substantial leeway to combat such
scourges as obscenity, drug dealing, and prostitution. Will the nominee
respect the rights of communities to regulate these illegal activities?
Or will the nominee twist the Constitution to interfere with
communities' ability to protect themselves from these crimes?
Holding criminals accountable: Criminals can and should be held full
accountable for their crimes. Does the nominee recognize that society
is victimized by criminals? Or does the nominee believe that the
criminal is the victim of society?
Death penalty. Will the nominee consistently apply Supreme Court
precedent? Or will the nominee strain for unconvincing escapes from
imposing the death penalty?
Florida Chief Justice Rosemary Barkett, President Clinton's nominee
to the important eleventh circuit seat, does not measure up to this
minimal standard. Justice Barkett believes that a ``basic problem with
the criminalization of obscenity is that it cannot be defined''--even
though the Supreme Court has set forth in unmistakable terms how it can
be defined. She believes that laws against obscenity ``run counter to
every principle of notice and due process in our society.''
That is important stuff. I do not see how anybody on this floor can
misconstrue it.
Justice Barkett has voted to strike down narrowly tailored
antiloitering laws that are essential to community policing, including
laws prohibiting loitering for the purposes of drug dealing and
loitering for the purpose of prostitution.
Justice Barkett has a pattern of unduly restrictive fourth amendment
search and seizure decisions that would hamstring police in their
battle against drugs. Two of her opinions have been reversed by the
Supreme Court, another has been criticized, and two others have been
dissents.
Justice Barkett too often subscribes to criminal-as-victim-of-society
rhetoric. This is illustrated by the extraordinary dissent she joined
in the Dougan case, which involved an extremely vicious and heinous
murder. Senators voting on this nomination should read cases like
Dougan.
While it is true that Justice Barkett has voted to enforce the death
penalty on a substantial number of cases, she has clearly been the
single most anti-death-penalty member of the Florida Supreme Court.
Moreover, she has exhibited a clear tendency to strain for unconvincing
escapes from the death penalty in numerous cases. She has also adopted
a position--akin to the Racial Justice Act that the Senate has
repeatedly rejected--that would virtually paralyze implementation of
the death penalty unless it is imposed on a quota basis.
Concerns over Justice Barkett's nomination for the Federal appellate
bench extend beyond her criminal law record. Her constitutional
decisionmaking reflects a clear failure to follow precedent. For
example, she took the position in a dissent that a statutory cap on
noneconomic damages in medical malpractice cases violates the Federal
equal protection clause--a conclusion that simply ignored longstanding
equal protection principles.
Justice Barkett similarly misused the Federal equal protection clause
and the Federal due process clause in other cases. Her record also
raises a serious concern that she would be prone to impose her basic
race and gender quotas.
Certain actions that Justice Barkett has taken also raise certain
questions about her impartiality and her adherence to the canons of
judicial ethics. For example, in the medical malpractice case, she
refused to recuse herself even though a trial lawyers group that had
named an award after her was participating as an amicus--and then she
voted with the trial lawyers. In a redistricting case, she stated that
she would favor one plan not on its inherent merits but simply on the
organization that had proposed it.
Justice Barkett's supporters say that she will follow Supreme Court
precedent, but the simple fact is that she has not followed Supreme
Court precedent: She has not followed Supreme Court precedent on the
equal protection clause. She has not followed Supreme Court precedent
on the due process clause. She has not followed Supreme Court precedent
on fourth amendment search and seizure law. She has not followed
Supreme Court precedent on obscenity. She has not followed Supreme
Court precedent on the death penalty. She has not followed Supreme
Court precedent in all of these very important fundamental areas.
This is an important thing. I think none of us want to go against
somebody we personally like, we personally think is a good person, but
in all honesty she has not followed the precedents in all of these
areas, and it is a dangerous thing to trust her, suddenly, that she is
going to get on the court and follow Supreme Court precedents.
In all these other areas she has, instead, pursued a liberal judicial
activist agenda, and there is every reason to believe that she will do
so if confirmed to the eleventh circuit court of appeals.
Mr. President, this is really important. We have at this time a
President who is saying that he is going to be tough on crime; he is
going to do everything he can to stop crime; he is challenging us up on
Capitol Hill to provide him with his crime bill. I do not think the
rhetoric matches the actions, while at the same time we have seen judge
after judge up here who seems to be softer on crime than his rhetoric
would imply, and this one in particular not only seems to be, she is,
and that is one of the problems we have.
Mr. President, I have to say that, again, this is a fine person. None
of my remarks should have any bearing on that. I think she is a good
person. I think she is well intentioned. But those are not the issues.
The issues are, will she follow the law as it is written or is she
going to use her own social and ideological preferences and enact those
into laws as a supermajority legislator from the bench?
Frankly, I have not seen many judges in my 18-year history that
really meet that qualification of being a legislator from the bench or
a judicial activist in the worst sense of that term any more than this
one has. And so I have to vote against her.
I understand that she will be confirmed here today. The fact is, I
hope we do not have judges who have ignored the law as much as she has,
come up here in the future.
Mr. MITCHELL. Mr. President, I wish to state just briefly that I
strongly support the pending nomination. This is an outstanding person,
an outstanding jurist, an outstanding judge, and someone who will serve
with distinction on the Federal court.
Now, an argument has been made about the President appointing people
who are soft on crime. That is a popular political slogan. Someone is
soft on crime. What does that mean? Are we supposed to believe that
someone who is serving as a judge tolerates crime, condones crime,
likes crime? The answer is, of course, ``no'' to all of those.
What it does do is to create what I believe to be a false impression,
that somehow in America if you believe in the Constitution, if you
believe in the Bill of Rights, and if you believe in the rights of
individual freedom and the limitations on the power of the government,
you are somehow soft on crime.
Mr. President, I served as a prosecutor at the State level and at the
Federal level, and I daresay I am probably responsible for more
criminals going to prison than most other Senators and, perhaps, all
combined.
And I say to you that here in America we can enforce the law and we
can be tough on criminals without ignoring constitutional rights of
law-abiding Americans.
It is a false choice to suggest that adherence to, commitment to, and
a deep conviction in favor of the Bill of Rights, which preserves the
liberties of individual Americans and limits the power of Government,
somehow makes one soft on crime. How often we have heard this argument
about technicalities being used to let criminals off. Frequently, those
``technicalities'' are rights that are included in the Constitution, in
the Bill of Rights.
Mr. President, I want to say that the most eloquent, most concise,
and most effective statement of the individual liberties of human
beings that has ever been devised and written down is the American Bill
of Rights, the first 10 amendments to the Constitution.
They set forth in a very brief, yet eloquent, way the values and
principles which motivated the men who wrote the Constitution and the
Americans who founded this great land. And it was this: that Americans
are free people. And in order to ensure their freedom and to provide
the broadest measure of individual liberty, we will restrain the power
of Government. And that Bill of Rights is not a technicality. It is the
essence of what makes Americans free.
And I think we ought to have judges who honor the Bill of Rights. I
think we ought to have judges who recognize that we can be tough on
crime, that we can prosecute criminals, that we can punish criminals
without violating the individual liberties of law-abiding Americans.
It is a false choice to think that we must choose one or the other.
We do not have to. We can do both. And I think this kind of judge will
do both.
I encourage the Members of the Senate to vote for this nomination.
I want to say that we are going to get a crime bill this year, a
comprehensive crime control bill. And we are going to get it because of
the leadership of President Clinton and Senator Biden, who is the
chairman of the committee. And I thank Senator Hatch for the work he
has done on that as well.
We ought to do it in a way that meets both objectives--tough on crime
and observing and adhering to and revering rights guaranteed to every
American under our Constitution. They are not inconsistent. They both
can be attained, and we should attain them.
Mr. President, I yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Florida.
Mr. GRAHAM. Mr. President, I yield such time as I might require.
Mr. President, we have a unique responsibility today, the
responsibility to place on one of the highest courts of the United
States a person who will serve for the balance of her natural life. I
am very honored to have the opportunity to urge my colleagues to vote
for the confirmation of Rosemary Barkett to the eleventh circuit court
of appeals.
This is a person who, by virtue of her personal life experience, by
virtue of her preparation and education, by virtue of her experience,
is especially uniquely qualified to serve as a Federal appellate judge;
the daughter of immigrants, an immigrant herself, a nun, a teacher, a
private practitioner, a trial judge, an appellate judge, and now the
Chief Justice of the Florida Supreme Court, a background, a wellspring
of personal preparation, development and experience now being made
available to the people of America.
Those qualifications, Mr. President, are not just written on a resume
on paper. They have been regularly, arduously, and consistently and
affirmatively reviewed by the people of our State and now by the
President of the United States of America.
She has three times been recommended for appointment to the judicial
positions in our State through a rigorous judicial selection process.
She has three times been appointed by Governors of our State to the
highest positions of judicial responsibility.
She has received the support of the broadest possible range of the
people of our State, including the major law enforcement and police
agencies.
Most significantly, when she was placed before the people of Florida
for a vote as to whether she should be retained in her position as a
justice of the Florida Supreme Court, when she was subjected to exactly
the same types of charges that have been made on this floor today, 61
percent of the people of Florida voted to retain this fine woman as a
member of the Florida Supreme Court.
I believe, Mr. President, that those repeated affirmative approvals
of Rosemary Barkett indicate the respect in which she is held, the
admiration and the confidence by those who know her best.
Mr. President, I ask unanimous consent to submit for the Record a
series of endorsements by organizations, law enforcement, legal and
others, and editorial boards in support of the nomination of Rosemary
Barkett for the eleventh circuit court of appeals.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The Florida Bar,
Office of the President,
Miami, November 16, 1993.
Re: The Honorable Rosemary Barkett.
Sen. Joseph R. Biden, Jr.,
Chair, Senate Judiciary Committee, Washington, DC.
Dear Senator Biden: It is with pleasure that I forward to
you, on behalf of the Board of Governors of The Florida Bar,
a resolution in support of the nomination of Chief Justice
Rosemary Barkett by President William J. Clinton to serve as
Judge of the United States Circuit Court of Appeals for the
Eleventh Circuit. By this resolution, the Board of Governors
of The Florida Bar urges the United States Senate to confirm
Chief Justice Barkett's nomination. If I, or The Florida Bar,
can be of any further assistance to the United States Senate
in this regard, please do not hesitate to call.
Sincerely yours,
Patricia A. Seitz,
President, The Florida Bar.
____
Resolution
Whereas, Chief Justice Rosemary Barkett has served the legal
profession as a member of The Florida Bar for over 23 years;
Whereas, Chief Justice Rosemary Barkett has always been an
example and an inspiration to others in the legal profession
to live up to the highest standards of ethics and
professionalism;
Whereas, Chief Justice Rosemary Barkett, the first female
Supreme Court Justice in Florida, has served the judicial
branch with intelligence, wisdom and professional distinction
for 14 years;
Whereas, Chief Justice Rosemary Barkett served as trial Judge
for five years, having been appointed to the Fifteenth
Judicial Circuit in 1979, appointed administrative judge of
the Fifteenth Circuit Civil Division in 1982, and elected
Chief Judge of the Fifteenth Judicial Circuit in 1983;
Whereas, Chief Justice Rosemary Barkett has served as an
appellate judge for nearly nine years, having been appointed
to the Fourth District Court of Appeals in 1984, appointed
Justice on the Supreme Court of Florida in 1985 and elected
Chief Justice in 1992;
Whereas, Chief Justice Rosemary Barkett was retained as
Justice of the Supreme Court of Florida by a majority vote of
the electorate in Florida in the merit retention election of
1992;
Whereas, Chief Justice Rosemary Barkett has served the
justice system as a member of the American Judicature Society
Board of Directors, faculty member of the National Judicial
College, faculty member of the Florida Judicial College, and
holds seven honorary Doctorate of Laws degrees;
It is, Therefore, Resolved, that Chief Justice Rosemary
Barkett is hereby congratulated and commended by the Board of
Governors of The Florida Bar upon her nomination by President
William J. Clinton to serve as Judge, United States Circuit
Court of Appeals for the Eleventh Circuit. The Board of
Governors urges her confirmation by the United States Senate
for that office.
Dated, this 9th day of November, 1993.
Patricia A. Seitz,
President.
John F. Harkness, Jr.,
Executive Director.
____
December 7, 1993.
Re: Nomination of Rosemary Barkett, Eleventh Circuit Court of
Appeals.
Sen. Joseph Biden,
Chairperson, Senate Judiciary Committee, Washington, DC.
Dear Senator Biden: We, the undersigned, are all former
Presidents of The Florida Bar.
The purpose of this letter is to advise you and your
distinguished Committee, of our total support of the
nomination of Chief Justice Rosemary Barkett to the Office of
Circuit Judge of the Eleventh Circuit Court of Appeals.
We know and attest to Chief Justice Barkett's commitment to
the rule of law. As both a trial and appellate judge, she has
compiled a brilliant record of dispensing justice without
fear or favor.
The nominee has a proven record of judicial excellence. Her
opinions are scholarly and reflective of her keen analytical
mind. We hold Justice Barkett in high esteem. Her brilliance
and her high integrity are recognized throughout our State.
Chief Justice Barkett possesses every attribute required
for exemplary service as a United States Circuit Judge.
The undersigned unqualifiedly and enthusiastically support
the President's nomination of Rosemary Barkett to the Federal
appellate bench.
Respectfully,
Marshall M. Criser, Alan T. Dimond, Robert M. Ervin,
Robert L. Floyd, Leonard H. Gilbert, William O.E.
Henry, Benjamin H. Hill, III, Mark Hulsey, Rutledge R.
Liles, James Fox Miller, Joe Reiter, Gerald F. Richman,
James C. Rinaman, Jr., Fletcher G. Rush, L. David
Shear, Chesterfield Smith, Samuel S. Smith, Wm. Reece
Smith, Jr., Russell Troutman, Burton Young.
____
TRIAL LAWYERS SECTION,
THE FLORIDA BAR,
January 20, 1994.
Sen. Joseph Biden,
Chairman, Senate Judiciary Committee, Washington, DC.
Dear Senator Biden: Enclosed please find a resolution
passed by the Executive Council of the Trial Lawyers Section
of The Florida Bar. The Trial Lawyers Section represents over
6,000 lawyers regularly appear and try cases in both the
state and federal courts in Florida.
The Executive Council urges the Senate Judiciary Committee
and the full Senate to consider their resolution on behalf of
Chief Justice Barkett.
Further the Trial Lawyers Section requests that a
representative of the trial lawyers of Florida be allowed to
address your committee during hearings on Chief Justice
Rosemary Barkett's confirmation.
Very truly yours,
Bill Hoppe.
____
[From the Trial Lawyers Section of the Florida Bar, Tallahassee, FL]
Resolution in Support of Confirmation of Rosemary Barkett
Whereas, Chief Justice Rosemary Barkett has served as a
trial judge in the 15th Judicial Circuit, Appellate in the
4th District Court of Appeals and for the last fourteen years
as a Florida Supreme Court Justice.
Whereas, Chief Justice Rosemary Barkett is well known to
the trial lawyers of Florida for her intelligence, knowledge
of the law and judicial temperament.
Whereas, Chief Justice Rosemary Barkett has been nominated
to serve as judge of the United States Court of Appeals for
the 11th Circuit.
Whereas, opposition to Chief Justice Barkett's nomination
comes from organizations and persons whose opposition is not
to the chief justice's qualifications, but to the chief
justice's position on certain legal issues.
It is therefore resolved that the executive council of the
Trial Lawyers Section of the Florida Bar which as
representatives of over 6,000 trial lawyers in Florida, urges
the chief justice's confirmation by the United States Senate.
The executive council is opposed to single issue opposition
to judicial nominations and believes that such opposition is
contrary to the concept of an independent judiciary. The
executive council finds that Justice Barkett is highly
qualified to serve as judge of the United States Court of
Appeals for the 11th Circuit and endorses her nomination for
that position.
____
Hispanic National Bar Association,
Melville, NY, October 25, 1993.
Hon. Joseph R. Biden, Jr.,
Chairman, Senate Judiciary Committee, U.S. Senate,
Washington, DC.
Hon. Orrin G. Hatch,
U.S. Senate, Washington, DC.
Gentlemen: The Hispanic National Bar Association has
reviewed the qualifications of Florida Supreme Court Chief
Justice Rosemary Barkett for the United States Eleventh
Circuit Court of Appeals, and find her highly qualified to
serve. Accordingly, we urge the Senators' confirmation of her
to fill the vacancy on this court.
Justice Barkett has served on the Florida Supreme Court
since 1985, and as Chief Justice since 1992. Before serving
on the Supreme Court, she served on the Fourth District Court
of Appeals, State of Florida, from 1984-1985. From 1979 to
1984, Justice Barkett served on the Fifteenth Judicial
Circuit, State of Florida, as a circuit judge (appointed
1979), administrative judge in the civil division (appointed
1982), and as chief judge (elected 1983). Before becoming a
judge, Justice Barkett was in private practice in West Palm
Beach, Florida, from 1971 to 1979.
Justice Barkett received her Juris Doctor in 1970 from the
University of Florida Law School. She received a Bachelor of
Science, Summa Cum Laude, from Spring Hill College in Mobile,
Alabama, in 1967. Justice Barkett has been bestowed with
Honorary Doctorates of Laws, Civil Laws, and Humane Letters,
from Nova University, Rollins College, Spring Hill College,
University of South Florida, John Marshall Law School,
Florida International University and Stetson University.
Justice Barkett has demonstrated her commitment to the
legal community and the state of Florida by serving on
various committees of the American and Florida Bar
Associations; Florida Bar Foundation; Child Welfare Study
Commission; Child Support Study Commission; Study Commission
on Guardianship Law; Juvenile Justice Center; Palm Beach
Marine Institute, Inc.; American Judicature Society; and
Court Statistics and Workload Committee. Additionally, she
is a member of several other associations and
organizations, including Children, Families, and the Law
Judicial Council; Florida Kids Count Advisory Council;
National Association of Women Judges; Florida Commission
on the Status of Women; Gender Bias Study Implementation
Commission; Florida Association of Women Lawyers; National
Association for Court Management; Sentencing Guidelines
Commission; and Statewide Prosecution Function Commission;
and Statewide Prosecution Function Commission; and is a
fellow of the Academy of Matrimonial Lawyers.
Justice Barkett has been the recipient of numerous awards,
including ``Breaking the Glass Ceiling Award,'' presented by
the Palm Beach Chapter of the National Association of Women
Business Owners; Latin Business and Professional Women
Lifetime Achievement Award; ABA Minority Justice Award
Honoree; Judge Matties Belle Davis Award, presented by the
Florida Association for Women Lawyers, Dade County; Hannah G.
Solomon Award, presented by the National Council of Jewish
Women; an Achievement Award presented by the Academy of
Florida Trial Lawyers; Judicial Achievement Award for the
State of Florida, presented by the Association of Trial
Lawyers of America; Woman of Achievement Award, presented by
the Palm Beach County Commission on the Status of Women;
American Academy of Matrimonial Lawyers Award; and the J.
Hillis Miller Memorial Award from the University of Florida
Law School. Justice Barkett has been inducted into Florida
Women's Hall of Fame, and the Academy of Florida Trial
Lawyers has established the Rosemary Barkett award to be
presented annually.
Justice Barkett is a faculty member of several colleges,
universities, and seminars, including National Judicial
College, Florida Judicial College, American Bar Association
Appellage Judges Continuing Education Seminars, and Institute
of Judicial Administration, New York University, appellage
Judges Seminars. She is an adjunct professor, Constitutional
Law Class, for Florida State University College of Law.
Justice Barkett also serves several institutions of higher
education in an advisory capacity.
The legal and professional abilities Justice Barkett has
exhibited in her distinguished career as a Florida state
jurist and private practitioner make her an excellent choice
for appointment to the Eleventh Circuit Court of Appeals. For
these reasons, the Hispanic National Bar Association strongly
supports her prompt confirmation.
If I may be of any assistance to you in answering questions
you may have about Justice Barkett, please do not hesitate to
contact me.
Sincerely,
Christopher A. Miranda,
Chair, Judiciary Committee.
____
National Conference of
Women's Bar Associations,
Edenton, NC., November 23, 1993.
Re: The Hon. Rosemary Barkett 11th Circuit Court of Appeals.
Hon. Joseph R. Biden,
U.S. Senate, Washington, DC.
Dear Senator Biden: President Clinton has nominated Chief
Justice Rosemary Barkett of the Florida Supreme Court for a
position on the 11th Circuit Court of Appeals. The Board of
the National Conference of Women's Bar Associations, which
represents several hundred voluntary bar associations across
the United States, has endorsed her appointment and urges you
to recommend approval to the Senate.
Justice Barkett brings to the Judiciary a background rich
in diversity and based on a strong family work ethic. Justice
Barkett was born of Syrian parents in Ciudad Victoria,
Mexico. At age six, when she entered school in Miami,
Florida, she did not speak English; nevertheless, she
excelled. Her life has also been one of public service. At
age 17 she became a Catholic nun, devoted for eight years
primarily to teaching children. Justice Barkett has long
advocated children's issues and the improvement of juvenile
justice.
When she left the convent, she continued her education by
obtaining her undergraduate degree summa cam laude, and was
the outstanding law graduate at the University of Florida
College of Law. In 1979, after practicing civil and criminal
law for nine years, she was appointed as a circuit court
judge in the Fifteenth Judicial Circuit of Florida. She has
since served on the Florida Fourth District Court of Appeals
and is presently the Chief Judge of the Florida Supreme
Court.
Justice Barkett is not ``soft on crime'' contrary to the
allegations in some letters you may be receiving from
opponents of her confirmation. She has voted with a majority
of the Florida Supreme Court 89 percent of the time.
Furthermore, she voted to uphold the death penalty in more
than 200 cases.
Justice Barkett is a woman of experience, scholarship, and
high moral principles who deserves your support. Her opinions
are well reasoned and in the best interest of fairness and
justice for all citizens. She would be a tremendous asset to
the bench of the 11th Circuit and an inspiration to all of
our citizens whose family language was not English.
Thank you for you consideration.
Very truly yours,
Katherine H. O'Neil,
President.
____
Florida Association For
Women Lawyers,
Tallahassee, FL., October 26, 1993.
Hon. Joseph R. Biden, Jr.,
Chairman, U.S. Senate,
Washington, DC.
Dear Senator Biden: As president of the 3,000 member-strong
Florida Association for Women Lawyers, I want to encourage
you to give positive consideration to the nomination of
Florida Supreme Court Justice Rosemary Barkett to the federal
bench. Justice Barkett is a jurist of the highest caliber.
Her intellect and her integrity are an inspiration to the
many lawyers who seek clear legal reasoning and just results
consistent with the law.
In supporting Justice Barkett, I realize that Florida will
lose a great jurist. But the nation will realize a great
gain, and those of us in Florida who will miss her keen legal
insight and her dedication to our system of law, cannot stand
in the way--indeed must hardily support--her ascension to the
federal arena.
Sincerely,
Virginia Daire.
____
The Governor of the
State of Florida,
November 4, 1993.
Hon. Joseph R. Biden, Jr., Chairman,
Russell Senate Office Building, Washington, DC.
Dear Senator Biden: Your committee will soon take up the
confirmation of Rosemary Barkett, Chief Justice of the
Florida Supreme Court and President Clinton's nominee for
appointment to the 11th U.S. Circuit Court of Appeals. The
nomination has the enthusiastic support of our citizens, who
know that the interests of justice and the people of the 11th
circuit will be well served by the confirmation of this
extraordinary Floridian.
The selection of Justice Barkett is another significant
milestone in a life that demonstrates a modern day version of
the American Dream. The daughter of immigrants who came to
the United States when she was a child, Rosemary Barkett is
an exemplary individual whose record of success is a direct
result of hard work, determination and a commitment to
fairness. The zeal with which she pursued her education is
typical of the energy she has brought to her other diverse
experiences--as nun, teacher, community leader, lawyer and
judge. All have been marked by a singular dedication to
excellence and service.
Justice Barkett has served the people of Florida with
distinction during a career that has consistently won her
respect, admiration and praise. She has offered a strong and
steady voice for justice and reason in Florida through her
long record of leadership that resonates with integrity. Her
judicial colleagues are continually impressed by her
scholarship, intellect, temperament and focused sense of
fairness.
Last year, during the statewide merit retention election
for Florida Supreme Court justices, some splinter groups
waged a nasty and shallow campaign that unfairly attempted to
portray Justice Barkett as soft on crime. Floridians,
familiar with the truth about Justice Barkett's long and
strong record of protecting public safety, were not fooled.
Not surprisingly, voters overwhelmingly cast their ballots--
by nearly a two-to-one margin--to return their Chief Justice
to the state's highest court. I am concerned that any
similarly misguided effort to misrepresent the facts and the
record of Justice Barkett be identified for what it is.
Rosemary Barkett's example of leadership in Florida is one
that surely reflects all that is best about America today. We
are proud of her achievements and commend her to you and your
committee. I personally offer my highest recommendation for
Justice Barkett. She deserves timely consideration and action
in the confirmation process. The people of the 11 U.S.
Circuit Court of Appeals deserve her service, strength and
humanity.
I know that you are being inundated by recommendations and
criticisms about each nominee whom you review. In this case,
however, I believe you will find that Rosemary Barkett is an
outstanding nominee who is fully deserving of your support.
With kind regards, I am,
Sincerely,
Lawton Chiles.
____
American Jewish Congress,
Miami Beach, FL, December 27, 1993.
Hon. Joseph R. Biden, Jr.,
Chairman, Committee on the Judiciary, Washington, DC.
Dear Mr. Chairman: We are writing on behalf of the 50,000
members of the American Jewish Congress to voice our strong
support for the nomination of Florida Supreme Court Chief
Justice Rosemary Barkett to the United States Court of
Appeals for the 11th Circuit. The American Jewish Congress
advocates for a federal judicial system whose members are
vigorously independent and committed to equal justice for
all. Rosemary Barkett has made the dispensation of justice in
support of these values the foundation of her legal career.
We would like to respectfully request that a confirmation
hearing date be set for Chief Justice Barkett as soon as
possible after the Senate reconvenes in January. We are aware
of the fact that a small number of extreme special interest
groups have attempted to distort Chief Justice Barkett's
judicial record in an effort to scuttle the nomination and
deny hear a hearing before the Committee. We believe these
actions amount to nothing more than an irresponsible and
repugnant effort to smear the reputation of a distinguished
and respected jurist.
Chief Justice Barkett's nomination enjoys strong bipartisan
support because her judicial record and philosophy are well
within the mainstream of American jurisprudence. She has been
endorsed for confirmation by Senator Bob Graham and Senator
Connie Mack of Florida, and in last year's merit retention
election Chief Justice Barkett received the approval from
nearly two-thirds of Florida's diverse electorate. She
deserves nothing less than swift confirmation so she might
serve our nation as ably as she has served the people of
Florida.
Sincerely,
Rabbi Ralph P. Kingsley,
President, Southeast Region.
Richard F. Wolfson,
Chairman, Commission on Law and Social Action, Southeast
Region.
Mark S. Freedman,
Executive Director, Southeast Region.
____
[From the American Jewish Congress, Washington, DC, Dec. 28, 1993]
American Jewish Congress Endorses Rosemary Barkett for Appeals Court
Nomination and Calls for Confirmation Hearings
The American Jewish Congress today endorsed the nomination
of Florida Supreme Court Chief Justice Rosemary Barkett to
the United States Court of Appeals for the 11th Circuit, and
called upon Senate Judiciary Committee Chairman Joseph R.
Biden, Jr. to schedule a confirmation hearing date as soon as
possible after the Senate reconvenes in late January.
Rabbi Ralph P. Kingsley, president of the Southeast Region
of the AJCongress, said that setting an early hearing date is
important to counteract the campaign orchestrated by those
who have attempted to distort Chief Justice Barkett's
judicial record in an effort to scuttle the nomination.
In a letter to Senator Biden written by Rabbi Kingsley,
AJCongress' Southeast Region Commission on Law and Social
Action Chairman Richard F. Wolfson, and Regional Director
Mark S. Freedman, AJCongress asserts, ``We believe these
actions amount to nothing more than an irresponsible and
repugnant effort to smear the reputation of a distinguished
and respected jurist.''
Rabbi Kingsley also praised Republican Senator Connie Mack
for joining his Democratic Florida colleague, Senator Bob
Graham, in endorsing the nomination. Mack concluded his own
independent review of Justice Barkett's judicial record and
announced his support in advance of any confirmation hearing.
The AJCongress letter notes, ``Chief Justice Barkett's
nomination enjoys strong bipartisan support because her
judicial record and philosophy are well within the mainstream
of American jurisprudence. . . . She deserves nothing less
than swift confirmation so she might serve our nation as ably
as she has served the people of Florida.''
____
National Association of
Police Organizations, Inc.,
Washington, DC, October 22, 1993.
Hon. Joseph R. Biden, Jr.,
Chairman, Committee on the Judiciary, Senate Office Building,
Washington, DC
Dear Senator Biden: The National Association of Police
Organizations (``NAPO'') which represents over 143,000 sworn
law enforcement officers in more than 2000 associations
throughout the United States wholeheartedly supports the
nomination of Florida Chief Justice Rosemary Barkett to the
Federal Judiciary. The 26,000 NAPO members in Florida are
represented by Area Vice Presidents who have unanimously
voted for this endorsement.
During the recent retention election in Florida there was
much debate and rhetoric. Representatives of the Florida PBA
reviewed Justice Barkett's record and the Florida PBA Board
of Directors, as well as most mainstream law enforcement
associations, voted unanimously to endorse Justice Barkett's
retention. She subsequently won a resounding victory
indicating the electorate's support for her efforts on behalf
of the citizens of Florida.
It is our hope that after careful consideration of her
record you will agree that Justice Barkett has the
professional experience, personal integrity and judicial
temperament to serve as a Federal Judge. We respectfully
request that you support and vote for this nomination.
Sincerely,
Robert T. Scully,
Executive Director.
____
[From the News-Journal, Sept. 28, 1993]
Fine Choice for Appeals Court
Florida Supreme Court Justice Rosemary Barkett would be an
excellent addition to the 11th Circuit Court of Appeals in
Atlanta. Her nomination by President Clinton announced Friday
deserves swift Senate confirmation.
Justice Barkett has been an outstanding jurist. Appointed
to the state's high court in 1985 by then-Gov. Bob Graham,
she became Florida's first female justice. The other members
of the state high court voted her the state's first female
chief justice in 1992.
The child of immigrants, she was a nun and teacher before
becoming a lawyer. Her experiences in overcoming a humble
background, her intellect, integrity and scholarship have
combined to produce a first-rate judge.
Because Florida's high court judges face an in-or-out merit
retention vote every six years, Justice Barkett was on the
ballot in 1992. She faced a negative campaign from groups
which distorted her record and tried unsuccessfully to paint
her as an out-of-control left-wing judicial activist.
Most of these complaints came from a few activists who want
to outlaw abortion in Florida and nullify the state's privacy
amendment.
The labels these groups peddled during the campaign were
nonsense and the voters rejected them. Justice Barkett stayed
on the bench by a 2-1 margin.
The same talents Justice Barkett brought to the Florida
courts would serve the country well, particularly on the
Circuit Court of Appeals. This is the court which has the
final say in all appeals not heard by the U.S. Supreme Court.
Because the high court hears relatively few cases, the
federal appellate courts are powerful arbiters of
constitutional issues.
A judge on such a court must possess rigor of intellect
tempered by broad sympathies for litigants. In this regard,
Justice Barkett is an unusually strong candidate.
The Senate should take note and vote to confirm her.
____
[From the Miami Herald, Sept. 28, 1993]
A Boon for the Bench
(By Rosemary Barkett)
To those who say that it can't be done and feel like
quitting: Rosemary Barkett has just done it--again.
The only woman ever to sit on the Florida Supreme court,
she has been nominated to the 11th U.S. Circuit Court of
Appeals, one rung below the Supreme Court. What a triumph!
Her Syrian family emigrated from Mexico to Miami when she
was 6. At 18 she became a U.S. citizen and a nun. After nine
years of teaching, she entered the University of Florida Law
School. She became a top-notch trial lawyer in West Palm
Beach. Appointed a trial judge in 1979, she moved to the
Fourth District Court of Appeal, then to the Supreme Court.
True, some critics don't like her for holding that the
Florida Constitution's privacy section protects a woman's
right to abortion, or for her opinion declaring
unconstitutional the Broward sheriff's random drug searches
of interstate bus passengers. Others like her decisions but
find her writing murky.
Florida voters looked seriously at Justice Barkett's
``liberal'' record in 1992. Up for merit retention, she was
``targeted'' for removal by abortion opponents and
conservative organizations, which called her ``soft on
crime.'' Justice Barkett, who has voted 200 times to uphold
the death penalty, was re-elected easily.
The best measure of a judge is not splendid writing but
fair decisions. By that measure, Justice Barkett stands tall
on merit and on the full range of her life's experience. That
experience, of course, is different from that of her male
predecessors on the bench. The judiciary ought to welcome
that diversity.
Maybe somewhere in the 11th Circuit there's a ``better
qualified'' nominee. But President Clinton could hardly have
found anyone better prepared.
``I'd like to think that I've made a contribution and a
difference in terms of protecting the people of this state,
and in terms of caring,'' says Justice Barkett, 54. She has
made a difference. More important, she has more to
contribute.
____
[From the Orlando Sentinel, Sept. 29, 1993]
Barkett Right for U.S. Bench
For eight years, Rosemary Barkett has served Florida with
distinction and quiet aplomb--her integrity beyond reproach.
It was no surprise that such a solid record of fairness on
the state Supreme Court bench would catch the attention of
President Clinton.
Last week, Mr. Clinton nominated Florida's chief justice to
serve on the federal appeals court in Atlanta, which hears
cases from Florida, Georgia and Alabama.
Ms. Barkett, Florida's first and still only woman on the
state Supreme Court, is a top-notch choice for the 11th U.S.
Circuit Court of Appeals.
Last year, Floridians expressed their vote of confidence
for Ms. Barkett in her merit-retention election, despite a
campaign by detractors who tried to make her seem soft on
crime. By focusing on a smattering of controversial cases,
though, her critics ignored the bulk of Ms. Barkett's
rulings.
Chances are good that those critics will try to revive such
diversionary tactics.
A look at her state Supreme Court record since 1985
produced an indisputable fact: Ms. Barkett placed solidly in
the mainstream, voting with the majority in 91 percent of
civil and criminal cases and supporting the death penalty in
more than 200 cases.
She is hardly out of step with the law or on a campaign to
wage an activist agenda from the bench, as some of Ms.
Barkett's critics charged.
The 54-year-old jurist has shown an uncompromising
obligation to uphold Florida's constitution.
Such was the case when her vote decided that the privacy
amendment in Florida's constitution protects all the state's
citizens, including pregnant minors who want an abortion.
Surely, deciding that case must have been difficult for Ms.
Barkett, a former Catholic nun, but the state's constitution
did not allow for anything else. It is an issue that should
be settled by voters changing Florida's constitution, not by
a campaign to smear Ms. Barkett's good name.
U.S. Sen. Bob Graham, who appointed Ms. Barkett to a
judgeship when he was governor calls her ``a rigorous legal
scholar with an understanding of how the law affects the
everyday lives of men and women..''
And the lives of children, too. Ms. Barkett serves on an
American Bar Association panel that is looking at the unmet
needs of children. It's heartening that she plans to continue
her work on that panel.
When senators meet Ms. Barkett during confirmation
hearings, they will find a committed judge who strives for
justice under the law.
____
[From the Sun-Sentinel, Oct. 1, 1993]
Barkett a High-Quality Nomination for Court, Source of Pride for South
Florida
As expected, President Clinton has nominated Rosemary
Barkett, chief justice of Florida's Supreme Court, to become
a federal appellate judge.
The choice is an excellent one, reflecting well on
Clinton's commitment to quality in making appointments. If
confirmed, she would join the 11th U.S. Circuit Court of
Appeals in Atlanta, which hears cases from Florida, Georgia
and Alabama.
Barkett's rise up the legal and judicial ladder has been
swift, earned by skill as a trial attorney and judge,
leadership as chief judge and chief justice, intelligence as
a legal scholar (tops in her law school class), tenacity in
problem-solving, plus a commitment to social justice,
particularly the needs of the poor.
Her confirmation by the Senate should be swift, despite
likely opposition from groups like Florida Right to Life and
the National Rifle Association, which mounted a noisy but
ineffective campaign in 1992 to defeat her in a merit
retention election.
Her critics have claimed, falsely, that she is ``soft'' on
crime and criminals and engages in a pattern of ``liberal
activism'' to free convicted killers, weaken law enforcement
and usurp crime victims' rights.
To the contrary, the court almost always upholds death
penalty convictions (she has done so 200 times) and avoids
engaging in ``judge-made law.'' So-called liberal activism
really involves overturning convictions or sentences based on
major trial court errors, protecting people from abusive
police and prosecutorial tactics and upholding federal laws
and higher court rulings.
An evaluation of Barkett's rulings shows she is not an
extremist, going against the grain, but is clearly in the
court's mainstream, siding with the majority 91 percent of
the time.
Barkett, 54, is a University of Florida Law School graduate
who has been on the court since her appointment in 1985 by
then-Gov. Bob Graham, who as a senator will vote on her
confirmation.
In a sense, she exemplifies one aspect of the American
dream--an immigrant who moves to America, learns English and
achieves success. Born in Mexico of Syrian parents, she is a
former nun and schoolteacher.
South Floridians have particular cause for pride. Raised in
Miami, Barkett served as a private attorney in West Palm
Beach for nine years before being appointed a Circuit Court
judge in 1979. She became Palm Beach County's chief judge in
1983 and joined the 4th District Court of Appeals in West
Palm Beach in 1984, moving to the Supreme Court a year later.
In July 1992, she was named Florida's first female chief
justice.
Barkett is also living proof of why Florida's ``merit
selection'' appointment process does a far better job than
elections in putting high-quality people on the bench.
____
[From the Tampa Tribune, Oct. 2, 1993]
Clinton Wise To Choose Barkett
President Clinton made a wise and courageous choice in
nominating Florida Supreme Court Chief Justice Rosemary
Barkett to fill a seat on the 11th Circuit Court of Appeals
in Atlanta.
Wise because Barkett, a former non and schoolteacher, would
bring a lifelong commitment to fairness and justice
unsurpassed on the appellate court responsible for hearing
cases from Florida, Georgia and Alabama.
Courageous because despite Barkett's long record of
upholding the law while defending the rights of all people,
her critics will be out in force when the U.S. Senate
confirmation hearing begin.
Her detractors will be quick to falsely portray Barkett as
soft on crime, careless of the rights of children and
promoting a liberal agenda.
Senators, including Florida's owns Connie Mack, will do
well to dispense with the rhetoric and, instead, take a hard
look at Barkett's record.
The senators will find that while she has refused to accept
the death penalty carte blanche, she has voted to uphold it
more than 200 times. She is one of the state's strongest and
most outspoken defenders of children's rights. Of the more
than 3,000 cases in which she and the other justices have
rendered opinions based on a vote of the court, she has voted
with the majority in 91 percent of the cases. That scarcely
indicates she is guided by her own personal agenda or is out
of the mainstream.
Of the 19 specific cases used to attack her record during
the 1992 retention election, seven were unanimous decisions
by the court. The 270 cases cited as evidence that she
somehow favors criminals were chosen from among 3,000
decisions because they supported the critics' points; her
supporters would easily select 270 that would have refuted
them.
Fortunately, voters saw through the smoke and returned her
to the bench with more than 60 percent of the vote.
A 1970 honors graduate of the University of Florida Law
School, Barkett has experience with the law that includes
nine years as a lawyer in West Palm Beach, six years as a
circuit and state appellate judge and eight years as a member
of the state Supreme Court, the last year as chief justice.
She has consistently spoken out for public participation in
and inspection of fiscal and managerial matters of the
government and courts. But she also recognizes the need to
shield some judicial files, including psychological
evaluations of children and private papers filed in divorce
disputes.
``She is everything you want in a judge,'' said Florida
Attorney General Bob Butterworth. ``Someone who listens
thoroughly to a case, researches both sides fully and renders
a decision which is in accordance with the law.''
Off the bench, Barkett, 54, has touched many lives on the
lecture circuit and served admirably as chairwoman of the
Study Commission on Child Welfare, which helped lead to the
ongoing overhaul of the state Department of Health and
Rehabilitative Services (HRS).
Overall, Barkett's reputation--as dynamic thoughtful,
intelligent and personable--makes her amply suited to serve
on the federal bench.
The Senate should move swiftly to confirm her appointment.
____
[From the St. Petersburg Times, Oct. 19, 1993]
Right Wing Is Recycling Old Garbage
(By Philip Gailey)
The Wall Street Journal editorial page and the Free
Congress Foundation--the hard-right team that seeded the
political controversy that engulfed Lani Guinier's nomination
to a top Justice Department post--have discovered another
threat to the republic. This time it is Florida Supreme Court
Justice Rosemary Barkett, who is President Clinton's nominee
to a seat on the 11th U.S. Circuit Court of Appeals.
To hear the rap sheet they have compiled on Barkett, you'd
think she is personally responsible for most of the crime and
mayhem in Florida, that she is aggressively pro-criminal and
anti-police, and that she spend most of her waking hours
looking for technicalities to spare brutal killers from the
hot seat.
In his Wall Street Journal column last Friday, Paul Gigot
wrote that ``to wade through Ms. Barkett's opinions is to
encounter root causes, `unconscious discrimination,' fear of
police and other liberal explanations for crime. This is
especially true in death penalty cases, which she attempts to
overturn on the smallest technicality.''
Gigot and his friends on the right are recycling the same
garbage that anti-abortion forces, the National Rifle
Association and some state prosecutors threw at her in last
year's retention election. The smell is even fouler this time
around. They're using the same distortions,
oversimplifications and untruths that her Florida opponents
used in their smear campaign.
The state's voters sorted through the garbage and affirmed
Barkett, the first woman to serve on Florida's high court,
for another term. She won 61 percent of the vote. Remember,
Florida's conservative voters stuck with George Bush last
year, and they overwhelmingly support the death penalty.
Sen. Orrin Hatch of Utah, a conservative Republican on the
Senate Judiciary committee, plans to lead the inquisition at
Barkett's confirmation hearings. If President Clinton is
willing to nominate to federal judgeships men and women who
personally oppose abortion, you would think Republicans would
be willing to accept nominees who have shown they can uphold
the death penalty regardless of their personal feelings.
What will it take to convince people like Hatch that
Barkett has not attempted to pull the plug on Florida's
electric chair?
Barkett was nominated to the Florida Supreme court by then-
Gov. Bob Graham, who signed dozens of death warrants. She has
hardly been a disappointment to Graham on that score: Barkett
has upheld the death penalty in more than 200 cases since she
joined the court.
A study by Steven Gey, a professor of constitutional law at
Florida State University, found that Barkett voted with the
majority of the court in 88 percent of the criminal cases it
decided from 1986 to September 1992. No one would call the
Florida Supreme Court a bunch of bleeding heart liberals, and
Barkett has often stood with some of the court's most
conservative members in her opinions.
Yes, Barkett has voted to overturn death sentences. But
what appeals judge hasn't? The criminal justice system makes
mistakes. The courts are there to correct them. The thing
that really bothers her critics is Barkett's obvious lack of
enthusiasm for the death penalty.
Barkett, a former nun, refuses to say what her personal
views are. I assume she personally opposes capital punishment
but understands a judge must follow the law. Attorney General
Janet Reno personally opposes state executions, but as Dade
County state attorney she sought the death penalty in plenty
of cases. And what about Ruth Bader Ginsburg? The newest
member of the U.S. Supreme Court, which has the final word on
these matters, was confirmed even though senators still don't
know much about her views on capital punishment.
When the Senate Judiciary Committee opens its confirmation
hearings on the Barkett nomination, the Florida jurist will
be escorted to the witness table by Democratic Sen. Bob
Graham. It would be a shame if the state's Republican
senator, Connie Mack, doesn't join Graham for the customary
introduction of the nominee.
Mack, who voted to confirm Ginsburg, says he won't make up
his mind about Barkett until he sees what the hearings
produce. That's a cop-out. It is usually Graham, not Mack,
who waits until the last minute to take a position on a
controversial issue.
Mack, who is facing an easy re-election campaign next year,
has grown as a senator in recent years. Even many of his old
critics grudgingly acknowledge that much. That's why it's
disappointing to see Mack holding back while the hard-right
ideologues in Washington circle Barkett for the kill.
For Mack, the choice is simple: He can stand with Florida
voters, who stuck with Barkett last year, or he can stand in
the slimy swamp with the vipers who poison nearly every issue
they touch.
____
[From the Orlando Sentinel, Oct. 25, 1993]
Barkett in the Mainstream
Consevatives on Capitol Hill have started to question
whether Chief Justice Rosemary Barkett of the Florida Supreme
Court is too soft on crime to be a federal appeals judge.
Nothing new there.
President Clinton's choice for the 11th U.S. Circuit Court
of Appeals already fought that war last year during her
retention election to Florida's top court. Armed with the
facts, she won over Floridians with 61 percent of the vote.
Last year, Ms. Barkett's detractors--from the National
Rifle Association to abortion-rights opponents--used a few
high-profile cases in which Ms. Barkett sided with the
minority to try to paint her as out of step with Florida's
judiciary.
A review of Ms. Barkett's record from 1985, when she was
appointed to the Supreme Court, to September 1992, however,
shows the jurist to be solidly in the mainstream. She voted
with the majority in 91 percent of all cases before the
court, and in 88 percent of the criminal cases.
That apparently isn't enough for Utah Republican Sen. Orrin
Hatch or the Free Congress Foundation, an ultra-conservative,
judicial watchdog group. Both Mr. Hatch and, the foundation
are questioning Ms. Barkett's commitment to uphold the death
penalty.
Certainly, Ms. Barkett has been cautious about applying the
death penalty in certain instances. Taking into account that
there is no turning back on such a decision, however, that
caution is warranted.
Consider that a study released Thursday by Death Penalty
Information Center, a group that opposes capital punishment,
documents the cases of 48 men who were released from death
row in their states during the past 20 years when new
evidence emerged to prove their innocence.
The report concludes that, in those cases, perjured
testimony or improper conduct of prosecutors led to guilty
verdicts. It points out several cases in which coincidence,
rather than courtroom procedure, produced evidence of an
inmate's innocence.
As it stands, Ms. Barkett voted to uphold the death penalty
200 times when the issue came before the Florida Supreme
Court in the past eight years she has been on the bench.
Not only that, but of seven cases in which the U.S. Supreme
Court decided to overturn Florida death sentences while
George Bush was president, Ms. Barkett had voted to execute
in four.
That would seem to make Ms. Barkett much tougher than the
U.S. Supreme Court majority appointed by two Republican
presidents in the past decade.
Clearly, drawing conclusions from a few cases about Ms.
Barkett's integrity and her commitment to the law is reckless
and unfair. Let the Senate judge Ms. Barkett based on her
overall record.
Senators are sure to find Ms. Barkett's caution to be well-
reasoned and in the best interests of fairness and justice
for all Americans.
____
[From the Orlando Sentinel, Oct. 31, 1993]
Cheap-Shot Artists Waste Taxpayers Dollars To Take Aim at Barkett
(By Charley Reese)
To sue mild language, I don't have much use for the U.S.
Senate Judiciary Committee. In recent years, it has allowed
the confirmation process for judicial appointments to become
show and circus in which the news media and special-interest
groups play a bigger role than the senators themselves.
That is wrong. It doesn't matter which nominee is being
trashed or smeared or which party is in the White House. As
citizens, we have a vested interest in the integrity of our
governmental processes. We have a vested interest in those
processes not becoming so distorted and destructive of
people's reputations that no decent person would even accept
a presidential nomination.
Finally, we as citizens have a vested interest in our
governmental processes always being fair and just.
For all those reasons, I was ticked off--I'm really trying
to use mild language--to find a large package in my mailbox
from the Senate Judiciary Committee. It was addressed to me
in care of my syndicate and was unsolicited.
In it was a couple of memoranda from some public servant
named Mark R. Disler, who identifies himself as Republican
Staff Director, Senate Judiciary Committee. The two memos are
addressed to ``interested parties'' and to ``interested
persons.'' One dated Oct. 5, states: ``Re: Nomination of
Great Interest.'' The second, dated Oct. 12, states: ``Re:
Rosemary Barkett.''
They are both about Florida Supreme Court Justice Rosemary
Barkett, who has been nominated by President Clinton to be a
federal appeals court judge in the 11th Circuit.
The packages contain a number of cases in which she has
written dissents, as well as a so-called analysis of them. He
urges me to feel free to use them, though they are not for
attribution. Disler has been in Washington too long. I don't
let some staff turkey I never laid eyes on send me an
unsolicited package of information, all acquired and paid for
at the public's expense, and then be told not to attribute
the information. I don't grant anonymity to cheap-shot
artists. The public has a right to know how their public
servant, in this case Mr. Mark Disler, is wasting their
money.
If you see some other pundit pontificating about Justice
Barkett as if he or she actually knew anything about her,
you'll know the source--Little Mr. Leaker on the minority
staff of the Judiciary Committee.
In the second memo, while repeating that his memoranda are
not for attribution, he states, ``but you can feel free to
use the information in them. Please write early and often.
Thanks. You can contact Ed Whelan of my staff at the above
number if you have questions.''
I don't know what the official duties of the Republican
Staff Director of the U.S. Senate Judiciary Committee are,
but they surely do not include instigating a disinformation
campaign against a nominee. Somebody ought to fire the jerk.
The so-called analyses of the cases he includes are inept
distortions. They are wrong characterizations, not analyses.
Some are so far off the mark one wonders if the writer can
even comprehend the English language.
The drift of this poisonous partisan, so-called analyses is
that Justice Barkett is soft on crime. In one such bit of
garbage, it says, ``Barkett views herself as one of the
enlightened elite who must override democratically enacted
laws in order to bring about what the riff-raff would really
want.'' That's a demned lie.
Listen, I happen to know this lady justice. She is not soft
on crime. She has one of finest legal minds in the country, a
terrific set of moral values, and abiding respect for the
U.S. Constitution and the principles of liberty and law.
Thomas Jefferson, James Madison and Patrick Henry would love
her--and respect her brilliant mind. They would despise
dimwit partisan pipsqueaks like Disler who abuse their
positions and the taxpayers.
____
[From the New Yorker, Dec. 20, 1993]
Clinton's Judges
George Bush has been out of there for less than a year, and
already it's hard to remember much of anything about his
Presidency--except that he waged the Gulf War and appointed
David Souter and Clarence Thomas to the Supreme Court. In the
long view of history, the appointments will probably loom
larger than the war. In fulfilling their constitutional duty
to populate the federal judiciary, Presidents leave a legacy
that long outlasts them. Federal judges hold office for life;
they serve as arbiters of the Constitution's magnificent--and
magnificently vague--commands; on issues as various as racial
equality, personal privacy, and religious liberty, they shape
the society in which we live. Whatever questions may obsess
and torment us in the future (Do clones have inheritance
rights? Are speed traps permissible on the information
highway?), we can pretty sure that federal judges will have
the last word on them.
With Congress in recess, President Clinton has done all the
judicial nominating he can do for his first year in office,
and it is possible to make an early assessment of how he has
discharged this pivotal duty. He turns out to have launched a
quiet revolution in the ``diversity''--Beltway shorthand for
ethnic and gender heterogeneity--of the federal judiciary. A
glance at the record of his predecessors shows the dimensions
of the change. According to a comparative analysis by the
Clinton White House Counsel's Office, Jimmy Carter, by
Thanksgiving of his first year in office, had nominated
thirty-four judges, one of whom was a woman; in that same
span, Ronald Reagan had nominated forty, two of them women,
and George Bush had nominated twenty-three, four women among
them. Bill Clinton has nominated forty-eight judges--and
eighteen of them are women, including, of course, his most
important appointee, Justice Ruth Bader Ginsburg of the
Supreme Court. The same pattern holds true for minorities. In
the first eleven months of their terms, Carter nominated five
black or Hispanic judges, Reagan one, and Bush two. Clinton
has nominated fourteen. To put it another way, eighty-two
percent of Carter's first-year nominees were white males,
and so were ninety-two percent of Reagan's and seventy-
four percent of Bush's, while only thirty-eight percent of
Clinton's first-year nominees to the federal bench were
members of that not yet long-suffering breed. The first-
year trends among Clinton's predecessors continued with
little change, and it's logical to expect this President
to maintain his pace as well.
All this good news on the diversity of Clinton's nominees
would be bad news indeed if the President had achieved
diversity at the expense of quality. But, if the ratings of
judicial candidates put out by the American Bar Association
are any guide, that hasn't happened. Of the Clinton nominees
rated so far this year, three-quarters have received the
A.B.A.'s ``well qualified'' label--a higher percentage than
Carter's Reagan's, or Bush's first-year nominees achieved. A
look at a few of the nominees themselves shows what's behind
this favorable consensus. In New York, for example, Pierre N.
Leval has long been among the region's most eminent district-
court judges; he richly deserved to be elevated to the court
of appeals. Dean David Trager of Brooklyn Law School, who
likewise has a long and distinguished record in public
service, clearly belongs on the district-court bench. Highly
qualified nominees of diverse backgrounds have been the rule
throughout the country. Martha Craig Daughtrey, whom Clinton
appointed to the court of appeals, was the first female
prosecutor in Tennessee, the first woman to serve as a state-
court judge in Tennessee, and the first woman to serve on
that state's supreme court. Martha Vazquez, an appointee to
the district court in New Mexico, is the daughter of Mexican
immigrants and is a distinguished trial lawyer. And Nancy
Gertner, a nominee to the district court in Massachusetts,
has been a leading civil-liberties practitioner and a
professor at Harvard Law School.
The nominee who has generated the most controversy may be
the most highly qualified of all. The life story of Rosemary
Barkett reads like a gloss on the American dream. She was
born in 1939 in a small town in Mexico. Her parents, who were
immigrants from Syria, had sixteen children, of whom only
five survived. The Barkett family moved to Miami when
Rosemary was five. About the time she turned eighteen, she
became both a Roman Catholic nun and a United States
citizen. After teaching school for several years, she
graduated from college, and then, having left the convent,
she graduated near the top of the University of Florida
College of Law's class of 1970. Following a successful
stint as a litigator, Barkett became a lower-court judge
in the Florida state system in 1979, and by 1985 she had
worked her way up to an appointment to the Florida Supreme
Court. As a justice on that court--she is now its chief
justice--she won a reputation as one of the most
progressive and intelligent judges in the nation, gaining
particular notice for her 1989 vote that the Florida
Constitution protects a woman's right to choose abortion.
A handful of conservative critics have assailed Barkett for
insufficient zeal in support of Florida's death-penalty
statute. One may question whether such zeal is something to
be desired in a judge; in any event, Barkett has shown
nothing but evenhandedness in enforcing that doleful law,
voting more than two hundred times to approve death
sentences. Barkett's opponents managed to prevent her
confirmation to a seat on the court of appeals from going
forward before Congress adjourned in November, but, since she
has virtually the entire Florida legal establishment behind
her--and most of the state's major newspapers as well--she
stands every chance of winning approval early next year.
Clinton's nominees are different from those of his
Republican predecessors in more suprising ways, too. Bush
and, especially Reagan nominated any number of aggressively
opinionated young academics to the federal bench. Clinton has
resisted the temptation to match that record ideologue for
ideologue; rather, he has drawn in significant measure from a
deep pool of judges on state courts, which served as a refuge
for many moderate jurists over the past twelve years. Nor has
Clinton sought to magnify his legacy by reaching out for
notably youthful nominees; his selections include many judges
in their fifties and a few in their sixties. It's true that,
as the Washington Post pointed out the other day, the Clinton
judge-picking machinery has moved slowly, and that the age
factor will cause vacancies to remain endemic in the system.
But this President seems to recognize that, in the long run,
who the judges are rather than how long they serve will
determine their contribution to the judicial system and the
nation.
Mr. GRAHAM. Mr. President, the question that has been asked is,
``Will she carry out the law?'' The statement has been made that she
did not follow the edicts of the U.S. Supreme Court as it related to
equal protection, to due process, to privacy, and a list of other
items, a charge to which I would say she would enthusiastically plead
guilty. And the reason is because she was not sitting as a Federal
judge with responsibilities singularly for enforcing the Constitution
of the United States of America. She took a dual oath of office to
enforce not only the Constitution of the United States of America, but
where it went beyond the standards available to all Americans to
enforce the constitution of the State of Florida.
Mr. President, let me just bring to your attention, as I did earlier
today to the Members of the Senate, a provision which was adopted in
our Constitution in 1980, 5 years before Justice Barkett became a
member of the supreme court. It was adopted by an overwhelming vote of
the people of Florida in November 1980. It is our State's right to
privacy. That amendment reads:
Every natural person has the right to be left alone, has
the right to be free from governmental intrusions into his
private life.
Mr. President, those words are part of the protections available
through the Florida Constitution to the citizens of our State. The
arguments against her would state that she was disqualified from being
a member of the Federal judiciary because she had faithfully carried
out the mandates of the State constitution to which she swore an oath
of allegiance. Had she failed to do so, I think that would have been
the disqualifying factor. Yes. Under provisions like that, as well as
other State constitutional provisions, which give additional
protections in important areas of equal protection and due process, she
has judged the constitution of Florida as it has been interpreted in
the past and as it is written, by the vote of the people, to give those
additional protections. She has been a faithful jurist in discharging
her responsibilities.
Mr. President, if she had been less than that, she would not have had
the support of the law enforcement agencies, of the legal community, of
the leading observers of the civic life of our State, as she did when
she continued in service in the Florida Supreme Court in 1992, and now,
as she has been nominated by the President of the United States of
America to serve in this high Federal judicial position.
I am surprised that her opponents would essentially argue for a
unitary judicial system in America, which would deny States the right
to afford to their citizens a different standard of protection.
Mr. HATCH. Will the Senator yield?
Mr. GRAHAM. Mr. President, I will finish my remarks, and then I will
yield for whatever questions or comments the Senator cares to make.
As Senator Mitchell referred to the first 10 amendments to the
Constitution of the United States as being man's highest statement of
human rights and civil rights, I point out that the 10th of those 10
first amendments was one which reserved to the States and to the people
all powers not delegated by the Constitution to the central Government.
The State of Florida and other States have exercised that reserve
power, including exercising it to grant additional protections to the
people of their State.
Mr. President, in conclusion, this is a uniquely qualified woman to
serve in the Federal judiciary. She has served our State with
distinction for a significant portion of her adult life. She has met
every test in terms of her personal, professional, and judicial
qualifications, and has passed each of those tests. She has
demonstrated her knowledge and her willingness to enforce the law. She
has stated that she understands the difference between her service as a
member of the Florida Supreme Court--now the chief justice of the
supreme court--and the responsibilities she will have as a member of
the Federal judiciary. And in her new position, she will follow the
precedents as established by the U.S. Supreme Court.
She has the support of law enforcement, of those persons who know
what contributions she has made toward the provision of criminal
justice in our State.
Mr. President, this is a person whom I know personally; this is a
person whom I recommend in the strongest terms for this important
Federal judicial responsibility.
I am now pleased to yield.
Mr. HATCH. I thank my colleague for yielding.
Mr. President, I know the distinguished Senator from Florida is very
sincere and very dedicated in getting this nominee through. I admire
him for that and appreciate it. Keep this in mind: When I listened to
the majority leader saying that the Bill of Rights is what is involved
here, I think it is the Bill of Rights. Nobody reveres the Bill of
Rights more than I do. That is precisely why I do not think this judge
should be confirmed.
Secondly, the Senator from Florida has indicated that, yes, there
have been some problems with Justice Barkett's not following Federal
precedents. There really have, and she has admitted it. In the first
place, the role of a State supreme court justice and of a Federal
appellate court judge are absolutely identical in terms of their
obligation to follow U.S. Supreme Court precedent on issues of Federal
constitutional law. The issue is not whether she reads the Florida
Constitution more broadly--as has been argued here--than the U.S.
Constitution. The issue is that she has a clear pattern of misreading
the U.S. Constitution and clear-cut Supreme Court precedent. That has
to be said. Nobody believes in the Bill of Rights more than I do. That
is why I do not think this judge should be confirmed for the circuit
court of appeals.
Mr. GRAHAM. Mr. President, in the remaining 30 seconds, I will
briefly respond. In case after case that has been cited on the
principle that Justice Barkett is not following precedent, those are
the cases which she resolved under State standards, not under Federal
standards. There has been no allegation that she was not faithfully
adhering to the law and precedent, and applying her judgment as she
felt it appropriate to do to carry out her dual responsibilities as a
State supreme court justice and to the Federal Constitution.
She will meet that same high standard of fidelity and judicial
commitment to the law as a judge on the Eleventh Circuit Court of
Appeals, to which I am confident this Senate will soon confirm her.
Mr. WALLOP. Mr. President, last January 25, President Clinton used
his State of the Union Address to assure Americans that he was tough on
crime. He urged that we pass a ``strong, smart, tough crime bill,'' and
endorsed, among other things, boot camps for young offenders and the
``three strikes, you're out'' provision which mandates life in prison
for criminals convicted of a third serious felony.
I applaud those statements. I would suggest, however, that what we
need is not more rhetoric, but firm leadership, actions that speak
louder than words.
A President who is tough on crime would not appoint judges who
believe in coddling criminals because they are the victims of society.
A President who was tough on crime would not appoint Justice Rosemary
Barkett to sit on the U.S. Court of Appeals for the Eleventh Circuit.
In particular, I am referring to decisions by Justice Barkett that
would severely hamper the ability of police officers to enforce laws
against drug trafficking and other crimes. I am not a lawyer, Mr.
President, but when the ranking member of the Judiciary Committee
describes a pattern of unduly restrictive fourth amendment decisions on
search and seizure then I understand that the result is a soft-on-crime
approach.
A person certainly does not have to be trained in the law to
understand just how outrageous was the dissent in which she joined in
the Dougan case. Let me briefly outline the facts in that case.
Dougan was the leader of a group called the Black Liberation Army, a
group which had the sole purpose of killing white people in order to
start a revolution and racial war. In 1974, Dougan and four other
members of the group picked up a white hitchhiker, drove him to a dump,
and repeatedly stabbed and then shot him in the chest and head.
Later Dougan made several tape recordings bragging about the murder,
describing it in graphic detail and stating that he thought it was
beautiful and that he enjoyed every minute of the grisly scene.
Dougan was ultimately sentenced to death because the trial court
found aggravating circumstances and no mitigating circumstances. The
Florida Supreme Court agreed. However, Justice Barkett joined in a
dissent which stated:
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.
On a side note, Mr. President, I find it ironic that a Senate which
recently passed a strong anticrime measure containing a provision to
enhance sentences for hate crimes--where a defendant selects a victim
because of race--would affirm any nominee who finds hate a mitigating,
rather than an aggravating factor.
This is just a short synopsis of Justice Barkett's record. This
nomination typifies the hypocrisy of an administration that on the one
hand says it is tough on crime but on the other does its level best to
see that no one can, or will by their own admission ensure that
happens.
President Clinton can use a high-visibility speech or he can use the
weight of his office to convince America that he cares about the
problem of crime.
Mr. NICKLES. Mr. President, Rosemary Barkett, chief justice of the
Florida Supreme Court, has been nominated to the U.S. Court of Appeals
for the Eleventh Circuit. I am going to vote against her.
To help explain my vote, I will refer to three capital punishment
cases. These cases help illuminate Justice Barkett's views of life and
the law--and it seems to me that these views disqualify her for
elevation to the court of appeals.
Justice Barkett has, of course, written hundreds of opinions and
participated in thousands of cases, and perhaps it is unfortunate that
we must focus on a small number of her cases. I acknowledge that
Justice Barkett has often, indeed usually, voted with the majority of
her court. However, her dissents most vividly outline her views, and
when we turn to the dissents we see most clearly those cases where she
has drawn a line between her and her colleagues.
Former Associate Justice William J. Brennan has written:
[D]issents are * * * critical to an understanding of [a]
justice. Just as we judge people by their enemies, as well as
their friends, their dislikes as well as their likes, the
principles they reject as well as the values they
affirmatively maintain, so do we look at judges' dissents, as
well as their decisions for the court, as we evaluate
judicial careers. In Defense of Dissents, 37 Hastings L.J.
427, 428 (1986).)
Let us now turn to the cases that illustrate Justice Barkett's views:
First, Dougan v. State, (595 So.2d 1 (Fla. 1992) (per curiam)), a
case where a racially motivated murder was committed in the hope that
it would trigger a race war. Here are the facts as reported by the
court:
Jacob Dougan and four of his friends belonged to the Black Liberation
Army [BLA]. They were, perhaps, the only members of this group ``whose
apparent sole purpose was to indiscriminately kill white people and
thus start a revolution and race war.''
In June 1974, Dougan and his accomplices drove around Jacksonville,
FL, searching for victims, but they saw no one who could be murdered
secretly. Dougan did, however, write a note that was to be placed on
the body of the eventual victim. Later that night the BLA chose its
victim, a lone, white hitchhiker named Stephen Orlando, age 18. Orlando
was kidnaped, taken to an isolated garbage dump, stabbed repeatedly,
and shot by Dougan.
Dougan then took to bragging about the murder. He made audiotape
recordings which he mailed to the media and, as if that weren't
villainous enough, to the victim's mother. The following excerpt is
from one of Dougan's tapes--which the court said aptly illustrates
their contents:
The reason Stephen was only shot twice in the head was
because we had a jive pistol. It only shot twice and then it
jammed; you can tell it must have been made in America
because it wasn't worth a (expletive deleted). 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.
At trial, one of Dougan's accomplices testified for the State, and
the other four were convicted of murder. Only Dougan, however, was
sentenced to death. The trial court found three aggravating factors and
no mitigating factors.
The dissent, which sought life imprisonment rather than death, was
not written by Justice Barkett, but she joined it. It 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 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 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 representative of
the class causing the perceived injustices.
At her hearing in the Senate Judiciary Committee on February 3, 1994,
Justice Barkett said that she was attempting to follow the law in
Dougan, and that although she didn't pen the dissenting opinion she had
no problem in agreeing with it.
The majority of the Florida Supreme court said that the dissenters'
logic in the Dougan case ``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 crime were motivated by deep-seated philosophical or
religious justifications.''
Mr. President, in his recent book, ``The Moral Sense,'' Prof. James
Q. Wilson writes of the ``philosophical doubts, therapeutic nostrums,
and ideological zealotry'' that have ``infected'' the modern age. He
said:
``The moral relativism of the modern age has probably
contributed to the increase in crime rates. * * * It has done
so by replacing the belief in personal responsibility with
the notion of social causation and by supplying to those
marginal persons at risk for crime a justification for doing
what they might have done anyway. If you are tempted to take
the criminal route to the easy life, you may go further along
that route if everywhere you turn you hear educated people
saying--indeed proving--that life is meaningless and moral
standards arbitrary.
Mr. President, I am unwilling to confirm Justice Barkett because this
dissenting opinion sounds to me like an apology for murder--so long as
the murder is politically correct. I cannot vote for a judge who would
write, or join, such an opinion.
The second case is Cruse v. State, (588 So.2d 983 (Fla. 1991) (per
curiam), cert. denied, 112 S. Ct. 2949 (1992), a case involving a
notorious mass murderer and cop killer. Here are the facts as reported
by the court:
In the spring of 1987, in Palm Bay, FL, William Cruse shot and killed
rookie police officers Ronald Grogan and Gerald Johnson and four
others. They were shot with a powerful semiautomatic rifle--which Cruse
had purchased a month earlier--fitted with special ammunition clips--
which Cruse had purchased a week earlier.
Cruse's first three victims were killed at a Kmart shopping center.
When Cruse heard sirens approaching, he got in his car and drove across
the street to another shopping center where he began firing into a Winn
Dixie store. When officers Grogan and Johnson drove into the Winn Dixie
parking lot in separate police cars, Cruse turned his attention from
the store, inserted a fresh 30-round clip into his assault rifle, and
fired eight times through Grogan's windshield, killing him. As Officer
Johnson was getting out of his car, Cruse wounded him in the leg.
Officer Johnson then attempted to find cover among the cars but Cruse
pursued him and killed him with three shots. When a rescue team tried
to retrieve Grogan's car, Cruse opened fire on them, shouting, ``Where
is the cop? Get away from the cop. I want the cop to die.''
At trial, the jury found Cruse guilty of six counts of first-degree
murder and numerous other counts and recommended the death penalty for
each of the murders. However, the trial judge upheld those
recommendations only for the murders of Grogan and Johnson. All 12
jurors agreed that Officer Johnson's murder was worthy of the death
penalty; 11 of them agreed that Officer Grogan's murder called for
death. The trial judge concurred in both cases. On appeal, six of the
seven members of the Florida Supreme Court also concurred--the one
exception was Rosemary Barkett.
In sentencing Cruse to death, the trial court found one mitigating
circumstance--extreme mental or emotional disturbance--to which it gave
great weight. That court also found four aggravating circumstances,
including that the murders were committed in a cold, calculated, and
premeditated manner without any pretense of moral or legal
justification.
Although Cruse had procured the weapons, clips, and ammunition in
advance, driven to one shopping center and then another, reloaded
before opening fire on Officer Grogan, and tracked Officer Johnson
through the parking lot, Justice Barkett held that Cruse was too
mentally disturbed for cool and calm reflection. Furthermore, she
wrote, Cruse had acted with a pretense of moral or legal justification
because he ``was acting in response to his delusions that people were
trying to harm him.'' Justice Barkett would have revoked the death
sentences and imposed life sentences.
Justice Barkett also dissented because she believed that the
prosecution in Cruse had withheld evidence from the defense in
violation of the U.S. Supreme Court's mandate in Brady v. Maryland,
(373 U.S. 83 (1963)). On this ground, she would have reversed the
convictions and remanded for a new trial. No other justice agreed with
her on this point, either.
Justice Barkett was asked about Cruse in her hearing before the
Senate Judiciary Committee on February 3. She said she had merely
followed precedent, and she asked not to be judged on this one case.
The question is, is Cruse an aberration, or is it illustrative?
Senator Dole has pointed out that ``Justice Barkett has never--not
once--dissented from a majority decision of the Florida Supreme Court''
when the court was overturning a capital sentence, but she has
dissented more than 100 times when the court enforced a capital
sentence (140 Cong. Rec. S1822 (daily ed. Feb. 24, 1994)). Her dissent
in Cruse was one of those 100-plus dissents. Justice Barkett does not
always oppose capital sentences, though. According to one count, she
has voted to uphold them some 120 times. Here, then, is Justice
Barkett's record:
Voted with majority to uphold capital sentence: some 120 times,
Voted against majority when it upheld capital sentence: 100-plus
times,
Voted against majority when it struck down capital sentence: zero.
This is not, Mr. President, a balanced judicial record.
The third case is, LeCroy v. State (533 So.2d 750 (Fla. 1988), cert.
denied, 109 S.Ct. 3262 (1989)), a case where a double murder was
committed by a 17-year-old. Here are the facts as reported by the
court:
While camping in a wild area of Palm Beach County, FL, in
January, 1981, husband and wife John and Gail Hardeman were
murdered by Cleo LeCroy. Mr. Hardeman was killed by a shotgun
blast to the head. Mrs. Hardeman was shot in the chest, head,
and neck with a small caliber gun. There was some evidence
that Mrs. Hardeman was sexually molested after she was shot.
LeCroy was 17 years and 10 months old when he killed the
Hardemans.
The jury found LeCroy guilty of first-degree felony murder in the
murder of Mr. Hardeman because the murder was part of a robbery. LeCroy
was found guilty of first-degree premeditated murder in the murder of
Mrs. Hardeman because that murder was committed to silence a witness.
The jury recommended a life sentence for the murder of Mr. Hardeman but
recommended death for the murder of Mrs. Hardeman. The trail judge
agreed with the jury on both counts.
In his sentencing order for the murder of Mrs. Hardeman, the judge
found there aggravating circumstances and two mitigating circumstances.
The trial court gave great weight to the second mitigating
factor [LeCroy's age] but found that the evidence showed that
[he] was mentally and emotionally mature and that he
understood the distinction between right and wrong and the
nature and consequences of his actions.
Florida, like all States, recognizes numerous distinctions between
adults and minors, but a Florida statue provided that a minor of any
age charged with a capital crime ``shall be tried and handled in every
respect as if he were an adult.'' The Florida Supreme Court deferred to
the legislature's judgment and upheld the death sentence against the 17
year old.
Only Justice Barkett dissented. She said:
I believe that imposing the death penalty on one who was a
child at the time of the crime violates the [proscription
against cruel and unusual punishments in] the eighth
amendment to the federal constitution and article I * * * of
the Florida Constitution. * * * I believe the death penalty
is totally inappropriate when applied to persons who, because
of their youth, have not fully developed the ability to judge
or consider the consequences of their behavior.
When asked about LeCroy at her Judiciary Committee hearing, Justice
Barkett said she was applying principles she had derived from a case
decided by the U.S. Supreme Court four months earlier. That case was
Thompson v. Oklahoma, (48 U.S. 815 (1988) (plurality opinion), where
the Court held that the Constitution of the United States does not
allow capital punishment for a person who was 15 years old when he
committed murder. To be more precise, the Court did not announce a flat
rule against such executions, although four members of the U.S. Supreme
Court were prepared to do so. Justice O'Connor, who cast the deciding
vote, was willing to strike down the Oklahoma statute but unwilling to
announce a per se rule.
On the other hand, the six-member majority of Justice Barkett's court
gave four reasons for believing that Thompson versus Oklahoma did not
control LeCroy. The reasoning of the majority was subsequently
justified when a few months later in Stanford v. Kentucky, (492 U.S.
361 (1989)), the U.S. Supreme Court held that the Constitution of the
United States does not forbid a State to impose capital sentences on
persons who were 16 or 17 years old when they committed murder. At the
time Stanford was decided, of the 37 States that permitted capital
punishment, 25 States allowed the death penalty for 17 year olds and 12
States did not. (492 U.S. at 370 n. 2).
In her dissent in LeCroy, Justice Barkett cited ``evolving societal
standards'' which are, of course, a fixture of eighth amendment law.
Many Americans wonder, though, why some judges have society evolving in
ways that make it more and more difficult to punish criminals. As
criminals themselves become younger and more vicious and more efficient
in their lawlessness, the law seems to evolve into confusion and
powerlessness. What kind of evolution is this, Mr. President?
I cannot support Justice Barkett's nomination and will vote against
her. I encourage our colleagues to do likewise.
Mr. KENNEDY. Mr. President, I commend President Clinton for
nominating Justice Rosemary Barkett to the U.S. Court of Appeals.
Justice Barkett's career is a powerful symbol of the American dream
and the achievement that is possible through hard work and commitment
to the Nation's ideals. One of 16 children born to an immigrant family
living in Mexico, she came to America at the age of 5. She knew only a
few words of English. She became a Roman Catholic nun and taught school
for several years before attending the University of Florida Law
School, where she graduated near the top of her class.
After 8 years in practice, she was appointed to the State trial court
in 1979, then to the State appellate court, and finally to the Florida
Supreme Court in 1985, the first woman to be accorded that high honor.
For the past 2 years, she has served as chief justice of that
distinguished court. She has been a leader in assuring that the courts
are accessible to persons with disabilities, and she has been a strong
advocate of pro bono work by all members of the bar.
Justice Barkett has been harshly attacked by a small group of critics
who claim that she is soft on crime. Few people are in a better
position to understand and appreciate the falsity of that charge than
the people of Florida, who have overwhelmingly rejected such claims. On
two occasions, the people of Florida have voted overwhelmingly to
retain her on the State supreme court. She was endorsed in her most
recent election by the Police Benevolent Association, the Fraternal
Order of Police, and the Peace Officer's Association.
The impressive bipartisan support she has received for this position
is a tribute to her outstanding qualifications for this important
court. Elected officials from Florida, including Senator Graham and
Senator Mack, Gov. Lawton Chiles, and the attorney general and his
Republican predecessor in the State all support Justice Barkett's
nomination. None of them supports coddling criminals, and none of them
would support Justice Barkett's nomination if they though she was soft
on crime.
Her critics have sought to characterize Justice Barkett as opposed to
the death penalty, because she has voted in selected cases to set aside
a death sentence.
In our system of justice, if the death penalty is to be imposed, the
courts must take care to ensure that it is not imposed on an innocent
person. These life or death cases are among the most important
responsibilities of the courts, and Justice Barkett clearly takes that
responsibility seriously.
In fact, Justice Barkett has voted to enforce the death penalty more
than 100 times. It would be wrong to oppose an outstanding nominee with
a distinguished record on the bench simply because she has voted to set
aside the death penalty in a few cases.
Justice Barkett is an outstanding jurist. She is well qualified to
serve on the court of appeals, and I urge the Senate to reject the
baseless charges against her, and confirm her nomination.
Mr. BURNS. Mr. President, President Clinton has exercised his
constitutional power and nominated Judge Rosemary Barkett to the U.S.
Court of Appeals for the Eleventh Circuit. While the President has the
right to choose his political appointments, we as Members of the U.S.
Senate have the responsibility to thoroughly review these nominations.
I believe the proper way to evaluate a judicial nominee is by
examining her judicial philosophy as reflected in her substantive
record. While there's no question that I have philosophical differences
with Justice Barkett on some of her political viewpoints, my greatest
concern is that she is too soft on crime. Her record has shown that she
has gone out of her way to block attempts to enact criminal laws, to
limit enforcement of criminal laws, and to prevent implementation of
criminal laws.
The most salient of her efforts to soften criminal law are her
efforts to block the implementation of the death penalty. Rosemary
Barkett has tried to set a precedent for great empathy for convicted
killers. While this position is borne out of the best intentions, her
personal empathy has led her to blame even the most heinous crimes on
everything from troubled racial relations to a failure of the social
system and learning problems during a killer's youth. To this end, she
has embraced a radical theory of statistical manipulation--rejected by
both the U.S. Supreme Court and the U.S. Senate, as well as State
attorneys general across America--that would effectively abolish the
death penalty without regard to whether actual killers in actual cases
deserved execution.
At a time when violent crime is one of the foremost concerns across
the United States, and the Senate has focused an unprecedented amount
of time and effort to produce legislation that will finally address the
crime problem and alleviate the growing concerns of American citizens.
I am frustrated that the President, with his tough-on-crime rhetoric,
would counteract these efforts and nominate a judge whose record has
made evident that she will not uphold tough criminal laws in our
judicial system.
I urge my colleagues to review Justice Barkett's judicial opinions,
as a member of Florida's supreme court, and cast their votes with
Justice Barkett's views on crime in mind. We have made great strides in
our unified support for the passage of the crime bill. But, placing
more police officers on the street and building new regional prisons
will do little good if judges will misconstrue our intentions and
narrow the scope of the criminal laws.
Ms. MIKULSKI. Mr. President, I just want to take this opportunity to
offer my support for the nomination of Rosemary Barkett, of Florida, to
serve on the eleventh circuit court of appeals.
I have three criteria that I apply to all nominees for Federal
judicial appointments: First, is the nominee competent? Second, does
the nominee posses the highest personal and professional integrity?
Third, will the nominee protect and preserve the core constitutional
values and guarantees that are central to our system of Government?
First, Chief Justice Barkett's background is evidence of her
competency and qualifications to serve on the circuit court. Not
surprisingly, she graduated among the top of her class in law school In
1979, she was appointed to the trial court and became the first woman
to serve as a chief judge of Florida circuit court and Florida supreme
court. Justice Barkett is held in high regard by her colleagues,
supported by both U.S. Senators representing Florida and Florida's Gov.
Lawton Chiles, and endorsed by several organizations including the
Fraternal Order of Police.
Second, prior to becoming a lawyer, Justice Barkett was a school
teacher and was a Roman Catholic nun. She taught religious and public
school children while at the convent and her life exemplifies the
utmost in personal and professional integrity.
It may seem unusual to some for a former nun to serve on the court,
but I will tell you what her nomination actually represents. This
nomination is indicative of the progress we have made. It shows that we
are able to judge individuals on their qualifications and merit. Judge
Barkett through her efforts and hard work is refuting old stereotypes--
religious and gender.
Finally, I believe that Chief Justice Barkett has shown that she will
continue to be a great jurist. She will serve the court well to protect
and preserve our core constitutional values. I commend the President
for nominating her and demonstrating his support for diversity on the
court.
Mr. McCAIN. Mr. President, after reviewing Judge Barkett's judicial
record and her testimony before the Judiciary Committee, I regret that
I must oppose her confirmation to be a judge of the U.S. court of
appeals for the eleventh circuit. I believe that Justice Barkett is a
fine person, but I am greatly concerned by many of her judicial
opinions which have led me to believe the judge might misconstrue the
written law in order to support her own personal views and that she
will take a weak stance on criminal law enforcement.
One of the most important issues in which she has ruled and would
rule on the eleventh circuit is the death penalty. According to a
January poll by the Prodigy Service, 71 percent of the American people
favor the death penalty and would like to see it applied to more
violent crimes. The people are correct on this issue. However, if
Justice Barkett's opinions were to be followed, application of the
death penalty would be rendered much less likely an option.
For example, Judge Barkett has advocated that a seemingly limitless
and legally tortuous defense against the death penalty be applied to
the Florida State Constitution in response to U.S. Supreme Court ruling
against the use of ``disparate impact'' statistical evidence under the
Federal Equal Protection Clause in McCleskey v. Kemp, 461 U.S. 279
(1987). Judge Barkett then responded to the ruling by stating that
McCleskey failed to address the problems concerning ``unconscious
discrimination,'' and that statistical evidence should include not only
the disposition of first degree murder cases, but also ``other
information that could suggest discrimination'' including ``the general
conduct of a state attorney's office, including hiring practices. * *
*'' The defendant can then use this ``statistical'' evidence to prove
that discrimination influenced the decision by the State attorney's
office to seek the death penalty, which the State is then forced to
disprove.
This opinion would allow any death penalty defendants to investigate
the offices of the State attorneys to find latent discrimination
resulting in discriminatory death penalty prosecution. Under Judge
Barkett's skewed standard, there could be cases where defendants can
claim discrimination based upon race, religion, or sex. Judge Barkett's
opinion, if applied, could drive the legal system to a halt, clogging
the courts with cases where death penalty defendants appeal their
sentences not on their innocence or guilt but on the basis of the
atmosphere in the State attorney's office.
Justice Barkett's supporters will argue that this is merely one case,
and that she has, on occasion, voted in favor of the death penalty.
However, I want to point out that well over 100 times she dissented
from the majority of the Florida Supreme Court, and voted against the
death penalty. She never once dissented from the majority to vote in
favor of the death penalty. Judge Barkett's record raises serious
doubts about her true support for the death penalty and her judicial
judgment.
Mr. President, Justice Barkett has also proven herself to be soft in
other areas of crime, especially on the issue of obscenity. In the case
of Stall versus State of Florida, Justice Barkett dissented from the
Florida Supreme Court majority by ruling that a Florida obscenity law
violated due process. In her opinion, she stated that, ``A basic legal
problem with criminalization of obscenity is that it cannot be
defined.''
This is a direct contradiction of the U.S. Supreme Court case, Miller
versus California, which stated that obscene material can be defined as
material that appeals to the prurient interest, or offensively
describes sexual conduct without artistic, political or literary
standards, when it is judged by the contemporary community standards.
It appears that Justice Barkett did not know that these Florida laws
were based on the Miller standard. I'm particularly concerned that she
did not even mention this important Supreme Court case in her decision.
Finally, Justice Barkett also suffers from some troubling ethical
problems. Serious concerns have been raised regarding her impartiality,
specifically her actions during the deliberation on the case of
University of Miami versus Echarte. In October 1991, the Academy of
Florida Trial Lawyers submitted an amicus brief in this case, and
argued that a cap on noneconomic damages in medical malpractice cases
were unconstitutional. In 1992, this organization set up an annual
award to be named after Judge Barkett, and she was invited to present
the first annual award at the trial lawyers' convention in November. In
May 1993, she dissented from the court's ruling, and followed the trial
lawyers' argument that the caps were unconstitutional.
Her actions in this case were inconsistent with her duty as a Justice
to be impartial in both appearance and fact. By deciding a case in
which an organization that had named an award after her filed a brief,
Judge Barkett may have violated the ABA Code of Judicial Conduct. Canon
2, subpart B of the code clearly states that a judge ``shall not lend
the prestige of judicial office to advance the private interests of
others; nor * * * convey the impression that they are in a special
position to influence the judge.'' I am troubled by the fact that
during the confirmation hearings, Justice Barkett did not see any way a
possible appearance of an ethical lapse.
In conclusion, Mr. President, I must regretfully oppose the
nomination of Justice Rosemary Barkett. I am greatly concerned by the
fact that her decisions on the death penalty seem to have more to do
with her personal views on the subject than the dictates of the law. In
the case of the obscenity law, I am disturbed not only by her belief
that obscenity cannot be defined, but also by her refusal to even
address important Federal Supreme Court precedents. Finally, her
appearance of partiality toward one group, and her refusal to even
acknowledge that she might have acted unethically when deliberating the
Echarte case makes me wonder if she possesses the proper judicial
temperament to serve as a circuit court judge.
Mr. President, we recently passed a tough crime bill. We now need
tough judges who will not undermine that tough legislation. I believe,
as Senator Hatch has noted, that the President's tough-on-crime
rhetoric will certainly be downgraded if he appoints judges, such as
Rosemary Barkett, who will contradict his stances and go easy on
criminals. In order to successfully carry out the war against crime, we
must be prepared not only to have enough police to arrest the
criminals, but we must also have enough tough judges to see that these
criminals are brought to justice.
Mr. President, I urge my colleagues to oppose this nomination and I
yield the floor.
Mr. DURENBERGER. Mr. President, I rise today to briefly explain my
reasons for supporting the nomination of Rosemary Barkett to the U.S.
Court of Appeals for the Eleventh Circuit.
I have served with four Presidents during my career in the U.S.
Senate, and I have always used the same standard to evaluate the
nominees of each administration. The criteria I use are whether the
nominee has the experience necessary to do the job, the temperament to
serve honorably, and the character to be entrusted with this serious
responsibility. After a review of Chief Justice Barkett's record, I
believe that she deserves confirmation.
As an opponent of capital punishment, I am probably much less
troubled than many of my Republican colleagues about Justice Barkett's
dissent in several capital cases. I do not believe that a lack of
enthusiasm for the death penalty in several cases should disqualify a
nominee from serving on the Federal bench. I respect retiring Supreme
Court Justice Harry Blackmun for his recent renouncement of the death
penalty, and I very much doubt that his position makes him an unfit
jurist.
I do not always agree with the ideology of nominees that I vote to
confirm. I have never considered applying an ideological test to be an
appropriate part of my duty as a Senator to advise and consent on
Presidential nominations. I am supporting this nomination because Chief
Justice Barkett has had a distinguished career of service on the State
bench in Florida, and I believe that she has the experience,
temperament, and character to serve with distinction at the Federal
level.
The PRESIDING OFFICER. Under the previous order, the hour of 3:15
p.m. having arrived, the Senate will now vote on the President's
nomination of Rosemary Barkett to be U.S. Circuit Judge for the
Eleventh Circuit.
Mr. BIDEN. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays are ordered, and the clerk will call the roll.
The bill clerk called the roll.
Mr. FORD. I announce that the Senator from Colorado [Mr. Campbell] is
necessarily absent.
I also announce that the Senator from Alabama [Mr. Shelby] is absent
because of illness.
The result was announced--yeas 61, nays 37, as follows:
[Rollcall Vote No. 92 Ex.]
YEAS--61
Akaka
Baucus
Biden
Bingaman
Boren
Boxer
Bradley
Breaux
Bryan
Bumpers
Chafee
Cohen
Conrad
Danforth
Daschle
DeConcini
Dodd
Dorgan
Durenberger
Exon
Feingold
Feinstein
Ford
Glenn
Graham
Harkin
Hatfield
Heflin
Hollings
Inouye
Jeffords
Johnston
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Mack
Mathews
Metzenbaum
Mikulski
Mitchell
Moseley-Braun
Moynihan
Murray
Nunn
Packwood
Pell
Pryor
Reid
Riegle
Robb
Rockefeller
Sarbanes
Sasser
Simon
Wellstone
Wofford
NAYS--37
Bennett
Bond
Brown
Burns
Byrd
Coats
Cochran
Coverdell
Craig
D'Amato
Dole
Domenici
Faircloth
Gorton
Gramm
Grassley
Gregg
Hatch
Helms
Hutchison
Kassebaum
Kempthorne
Lott
Lugar
McCain
McConnell
Murkowski
Nickles
Pressler
Roth
Simpson
Smith
Specter
Stevens
Thurmond
Wallop
Warner
NOT VOTING--2
Campbell
Shelby
So the nomination was confirmed.
Mr. DODD. Mr. President, I move to reconsider the vote by which the
nomination was confirmed.
Mr. GRAHAM. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
____________________