[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. --------------------------------------------------------------------------- Footnotes at end of article. --------------------------------------------------------------------------- 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. ____________________