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


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

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

  The Senate continued with the consideration of the nomination.
  Mr. HELMS. Mr. President, all my life I have heard, as the 
distinguished occupant of the chair has heard, that everybody talks 
about the weather but nobody does anything about it. I have been in the 
Senate going on 22 years, and I think every year I have been here--
maybe minus 1 or 2--there has been a crime bill and there have been all 
sorts of assurances that this is going to take care of the crime 
problem once and for all. The crime bill is going to stop the crime in 
the streets. It is going to put an end to drug trafficking. It is going 
to stop the murders.
  I know these statements were made by men and women in good faith. But 
I have come to the conclusion--now that I am older than I have ever 
been before and have thought much about the crime situation and crime 
legislation--that we are not going to solve the crime problem in 
America until we solve one or two other problems first.
  Namely, we have to make up our minds, as Americans, that we are going 
to restore some fundamental principles in this country, principles on 
which and for which this country was founded.
  I do not mean to sermonize, but as a society we have drifted so far 
away from being a good Nation. Of course, I am referring implicitly to 
Alexis de Tocqueville, the great French diplomat and scholar who came 
to this country in the middle of the 19th century in search of the 
genius of this relatively new country.
  Every school boy knows that story. Alexis de Tocqueville went 
everywhere in America. He went to the seaports and he went to the 
cities and he went to the towns and he went to the farms, and he said: 
They are not substantially different from what I have seen in my own 
homeland of France.
  And then he went to one other place. And when he got back to France 
he recounted and recited all of the other trips he had made around 
America and he said: It was not until I went into the churches of 
America that I discovered the genius of America. Because there I found 
that these Americans, they seek to be good. They are not perfect, but 
they are trying to be good. And as long as America and Americans try to 
be good, America is going to be great. But when America stops being 
good, America will stop being great.
  Mr. President, let us contrast that with the psychological attitude 
that is so prevalent today. Look at what we see on television. And, 
yes, there are some of us who have been ridiculed and mocked because we 
contend that traditional values such as prayer in school ought to be 
restored. School prayer, and the respect for morality that it 
engenders, was taken away back in the 1960's by an unwise Supreme Court 
that completely misinterpreted history and the U.S. Constitution. But 
school prayer ought to be restored. And fundamental civil and personal 
decency ought to be restored, as well as concern for one's fellow human 
beings.
  Mr. President, no crime bill can substitute for that.
  I was struck by these thoughts 2 or 3 months ago when President 
Clinton came up for his State of the Union Address. My soul, I have 
heard few more eloquent human beings in my life. He can look you right 
in the eye and tell you something that you know is not so, and you 
halfway believe it. He is without question a charming man in the 
podium. And he was certainly charming that night.
  I remember his exhortation to the American people--and he held up his 
hand--``Let us reclaim our streets from violent crime and drugs and 
gangs.'' And they stood up as one in the House of Representatives and 
cheered. And well they should, because we should reclaim our streets.
  Then he said, ``While Americans are more secure from threats abroad, 
I think we all know that in many ways we are less secure from threats 
here at home. Every day the national peace is shattered by crime * * 
*''
  And at that point, Members stood up again and cheered. If you watched 
it on television, you got sick and tired of people getting up and 
sitting down, getting up and sitting down, every time the President 
finished a sentence.
  The President continued, ``Violent crime and the fear it provokes are 
crippling our society, limiting personal freedom, and fraying the ties 
that bind us.''
  That is pretty good rhetoric, Mr. President. I wish I had thought of 
it myself. As Ronald Reagan said afterward, ``Imitation is the 
sincerest form of flattery, but this is wholesale robbery.''
  And then Mr. Clinton said, ``The crime bill before Congress gives you 
a chance to do something about it, a chance to be tough and smart. And 
what does that mean? Let me begin by saying I care a lot about this 
issue.''

  Well, I remember thinking--knowing that Mr. Clinton had nominated the 
chief justice of Florida's Supreme Court to sit on the U.S. Court of 
Appeals for the Eleventh Circuit--I thought mercy, is he really going 
to put this lady on the U.S. Court of Appeals feeling as he says he 
does about crime?
  Mr. Clinton continued his speech and said, ``My fellow Americans, the 
problem of violence is an American problem. It has no partisan nor 
philosophical element. Therefore, I urge you to find ways as quickly as 
possible to set aside partisan differences and pass a strong, smart, 
tough crime bill.''
  Tough words. Tough words, I say to the distinguished occupant of the 
chair. And this is what the American people heard from their President. 
It was an impressive flow of rhetoric. That is what he said and 
continues to say, and it is what the American people approve of.
  But you have to look and see what actions he is really taking on the 
issue of crime. For instance, today, the Senate is spending much of the 
day considering Mr. Clinton's nominee to sit on the Eleventh Circuit 
Court of Appeals the lady I just mentioned, namely, Rosemary Barkett. 
If confirmed, she will have lifetime tenure and will henceforth be 
accountable to no one. If she conducts herself as other liberal 
activists have on the bench, she will allow her liberal philosophy to 
permeate her decisions, using her judicial power to override the 
actions of the elected representatives of the people.
  That is why I am here. I am no lawyer, and I sometimes brag about it. 
But I have the greatest faith and hope that the judicial system in this 
country will return to its proper constitutional role of interpreting 
and not rewriting the Constitution.
  But let us examine Judge Rosemary Barkett's record.
  During her tenure on the Supreme Court of Florida, she has tried to 
prevent the enactment of laws to ban obscenity and preserve community 
order and decency, laws which I think everybody should acknowledge are 
important to community policing, which Mr. Clinton says he so strongly 
supports.
  She has issued a series of search and seizure decisions which if 
implemented, would severely hamper the ability of the police to enforce 
laws against drug trafficking and other crimes, the kind of crimes 
about which the President says he is so concerned and he said so 
eloquently a few short months ago in January.
  This liberal lady judge has also endorsed a capital punishment theory 
that would make it impossible to impose the death penalty unless it is 
carried out according to racial quotas. She has attempted at every turn 
to make excuses for the acts of brutal criminals based on the 
fallacious liberal philosophy that criminals are the victims of 
society--you know, the old society-is-to-blame game.
  So I am inclined to say so much for Mr. Clinton's appeals regarding 
crime and punishment when he sends this Senate a judicial nominee more 
interested in making excuses for criminals than in having them held 
responsible for their actions--a judge that believes that the criminals 
are the victims.
  Mr. President, I am not going to take up much more of the Senate's 
time. I am shortly going to ask to have inserted in the Record an 
analysis of the nominee's record and a number of her judicial opinions. 
But before I do that, I do want to discuss a few of the cases which may 
help reveal to those watching on C-SPAN the kind of nominee Mr. Clinton 
has submitted to the Senate to sit on the U.S. Court of Appeals.
  In the case of Stall v. State (570 So. 2d 257 (Fla. 1990), for 
example, Chief Justice Barkett joined a dissent that called for 
striking down a State obscenity statute. She stated, ``A basic legal 
problem with the criminalization of obscenity is that it cannot be 
defined.'' I say to the lady, with all respect, you are crazy as the 
devil. It can and has been defined by the U.S. Supreme Court--I do not 
know why she could not find the case. It is called Miller versus 
California and was decided way back in 1973.
  She went on to say in that opinion that the Florida obscenity law 
violated ``every principle of notice and due process in our society.''
  Senators may also be aware of Barkett's decision in Bostick v. State, 
which is cited as 544 So.2d 1153 (Florida 1989). In that case, the 
Broward County Sheriff's Department had tried to combat the flow of 
illegal drugs by randomly boarding, at scheduled stops, buses traveling 
interstate. Once on the buses, officers would ask the passengers for 
permission to search their luggage for drugs.
  Now, a fellow named Bostick was a passenger on such a bus. The 
sheriffs boarded the bus. They announced they were narcotics agents. 
They asked Bostick for permission to search his luggage. Bostick 
consented to the search, and during the search, what do you know, the 
sheriffs discovered illegal drugs.
  Now, in finding this search to be illegal--and how she arrived at 
that conclusion baffles me--Barkett wrote an opinion completely 
prohibiting the police from ever using this means of combatting drug 
trafficking again.
  And I say again, President Clinton was so eloquent in his address to 
the Joint Session of Congress. Oh, he was so eloquent. And then he 
sends up a nominee like this.
  In her opinion in the Bostick case--which was subsequently overturned 
by the U.S. Supreme Court (Florida v. Bostick, 111 S.Ct. 2382 (1991))--
Barkett wrote: ``This is not Hitler's Berlin, nor Stalin's Moscow, nor 
is it white supremacist South Africa.''
  How does this mesh, I ask the presiding officer, with President 
Clinton's appeal to the American people to support the honorable and 
difficult work of our law enforcement officers?
  Mr. President, there is more. As Senator Hatch concluded after her 
confirmation hearings: ``Judge Barkett exhibits a clear tendency to 
strain for unconvincing escapes from the imposition of the death 
penalty.''
  One of Justice Barkett's dissenting opinions would render the death 
penalty virtually unenforceable--unless imposed on the basis of racial 
quotas. She laid out her theory in a dissent in Foster v. State (No. 
76,639 (Florida, April 1, 1993)). This theory has been used in Senate 
debate by Senator Kennedy and others opposed to the death penalty.
  Before voting on this nomination, Senators may wish to review a 1992 
Florida Supreme Court case, Dougan v. State (595 So. 2d 1 (Florida 
1992)). Dougan was the leader of a group that called itself the Black 
Liberation Army. According to the trial judge, its ``apparent sole 
purpose * * * to indiscriminately kill white people and thus start a 
revolution and a race war.'' One evening in 1974, Dougan and four other 
members of his group went in search of victims. They picked up a white 
hitchhiker, Steven Orlando, drove him to an isolated trash dump, and 
stabbed him repeatedly. Dougan then put his foot on Orlando's head and 
shot him twice. In one of several tape recordings he made bragging 
about the murder, Dougan said: ``* * * it was beautiful. You should 
have seen it. Ah, I enjoyed every minute of it. I loved watching the 
blood gush from his eyes.''
  Justice Barkett and one her colleagues joined in a dissent calling 
for Dougan's death sentence to be reduced to life imprisonment, with 
eligibility for parole in 25 years, which stated:

       This case is not simply a homicide case, it is also a 
     social awareness case. This killing was effectuated to focus 
     attention on a chronic and pervasive illness of racial 
     discrimination and of hurt, sorrow, and rejection. Throughout 
     Dougan's life his resentment to bias and prejudice festered. 
     * * *  His frustration, his anger, and his obsession of 
     injustice overcame reason. The victim was a symbolic 
     representation of the class causing the perceived injustices.

  Mr. President, the dissent concluded that giving Dougan a life 
sentence instead of the death penalty would be:

       * * * a partial reconciliation of the wounds arising from 
     discordant racial relations that have permeated our society. 
     To a large extent, it was this disease of racial bias and 
     discrimination that infected an otherwise honorable person 
     and contributed to the perpetration of the most horrible of 
     crimes.

  Mr. President, is this what President Clinton meant 3 months ago, 
when he told the American people that ``those who commit crimes should 
be punished?''
  Adds Tallahassee prosecutor Ray Markey: ``To say that this white 
victim was a sacrifice and call it a social awareness case--that's 
scary.''
  Mr. President, the outrageous rationale Judge Barkett agreed with in 
this opinion would justify killings by terrorists, and Mr. Clinton 
wants to elevate this woman to the Federal Court of Appeals. Has she 
not done enough damage in Florida already?
  Mr. President, the bottom line is that Congress can--as called upon 
by President Clinton--pass history's toughest crime bill--but that will 
not make any difference in the world if the President turns around and 
appoints to the Federal bench individuals such as Rosemary Barkett, the 
pending nominee.
  If this lady is confirmed and brings these points of view to the 
Federal judgeship to which she has been nominated, she is not going to 
help crime in the streets. She is going to help build up the incidence 
of crime in the streets and everything else.
  That is the reason I shall not and cannot support her nomination.
  Mr. President, I ask unanimous consent that an analysis of this 
nominee prepared by Mr. Thomas L. Jipping of the judicial selection 
monitoring project and a copy of a column printed in the Washington 
Times of October 15, 1993, and written by Sam Francis, titled 
``Rosemary Barkett: Clinton Nominee,'' be printed in the Record at the 
conclusion of my remarks.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                        Beyond Judicial Activism

                 (By Thomas L. Jipping, M.A., J.D.\1\)

       President Bill Clinton has exercised his power under 
     Article II, Section 2 of the United States Constitution\2\ 
     and nominated Rosemary Barkett to be a judge on the United 
     States Court of Appeals for the Eleventh Circuit, which 
     includes Florida, Alabama, and Georgia. The U.S. Senate 
     Judiciary Committee voted 11-7 to approve the nomination on 
     March 17, 1994, the narrowest approval margin of any Clinton 
     judicial nominee to date. This analysis is provided by the 
     Judicial Selection Monitoring Project\3\ to assist the U.S. 
     Senate in fulfilling its constitutional role of ``advice and 
     consent'' and in considering the Barkett nomination.
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     Footnotes at end of article.
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                        i. personal information

       Rosemary Barkett was born in Mexico in 1939 and moved with 
     her family to Miami in 1944. A former nun in the St. Joseph 
     order, Barkett graduated from Spring Hill College (Mobile, 
     AL) in 1967 and the University of Florida School of Law in 
     1970. She has experience as a trial lawyer (8 years) and 
     state circuit judge (6 years). Governor (now Senator) Bob 
     Graham appointed her to the Supreme Court of Florida in 1985. 
     Floridians voted to retain her in 1986 and 1992, when she was 
     named chief justice.


                        ii. the nominee's record

       Rosemary Barkett has been a member of the Supreme Court of 
     Florida for nearly a decade and has amassed a sizable 
     judicial record. Perhaps the most striking thing about 
     Barkett's supporters, therefore, is that they simply refuse 
     to defend or even talk about that record. This is not an 
     overstatement. There exist in Barkett's record dozens and 
     dozens of very controversial opinions which demonstrate her 
     aggressively activist approach to judging and views on 
     important issues that are far outside the mainstream. Her 
     supporters never defend those decisions.
       Instead, Barkett's supporters use two strategies. First, 
     they simply claim that these radical opinions are a small 
     fraction of the opinions Barkett has written and the cases in 
     which she has participated over the years. This observation, 
     of course, leaves these many controversial opinions entirely 
     undefended. Second, Barkett's supporters retreat behind a 
     smokescreen of statistical arguments and number-crunching. 
     This approach also ignores, much less defends or justifies, 
     the many decisions across a range of issues that clearly 
     identify Barkett as an aggressive judicial activist with 
     views far outside the mainstream.
       This analysis, in contrast, will examine the actual 
     opinions that this nominee has written and for which she is 
     responsible. Neither the nominee nor her supporters can 
     avoid, run from, or ignore the public record she has 
     compiled. The real issue, after all, is judicial philosophy 
     and the best place to determine the nominee's judicial 
     philosophy is the nominee's judicial record.

                           A. Rule by empathy

       As Senator Arlen Specter (R-PA) put it when voting against 
     Barkett's nomination in the Judiciary Committee on March 17, 
     1994, her record shows a ``result-oriented approach that goes 
     beyond judicial activism.'' One scholarly analysis of 
     Barkett's record concluded that she makes decisions on the 
     basis of personal ``empathy.'' The author observed that 
     ``[c]riminal defendants, especially those on death row, are 
     often subjects of her empathy.''\4\ Her approach ``allows her 
     . . . to empathize with each capital defendant.''\5\ This 
     analysis concluded that ``Barkett has great empathy for 
     capital defendants.''\6\
       The real issue is judicial philosophy. Judges are not 
     philosopher kings, cultural commentators, or social 
     therapists. Their sworn duty is to apply the law, not to rule 
     by empathy. It is possible that her supporters might again 
     tell the author of this scholarly analysis that the many 
     opinions she examined were merely a fraction of the total, 
     but the conclusion is the same nonetheless. The review that 
     follows will examine many of Barkett's decisions across a 
     range of issues to clearly identify this pattern.

                            B. Criminal law

       Barkett's empathy for criminals and her aggressive judicial 
     activism is evident at every point in the process of our 
     society's attempt to address crime: the passage of criminal 
     laws, the enforcement of criminal laws, and the 
     implementation of criminal penalties. First, she tries to 
     prevent legislative bodies from enacting laws for preserving 
     community order and decency. Second, she tries to impose 
     Draconian rules that hamstring the police in their efforts to 
     enforce criminal laws that are enacted. Third, she goes out 
     of her way to excuse even the most heinous crimes and to keep 
     criminals from receiving the just punishment for their 
     crimes.

    1. Striking down laws for preserving community order and decency

       Barkett's aggressive judicial activism is evident at each 
     stage of society's attempt to maintain order and protect its 
     citizens. She attempts to prevent legislative bodies from 
     passing laws or ordinances to combat community problems.
       Wyche v. State (1993).\7\ Wyche was convicted of violating 
     a Tampa ordinance prohibiting loitering by a street or public 
     place ``in a manner and under circumstances manifesting the 
     purpose of'' prostitution or other sexual acts. The ordinance 
     lists specific circumstances ``which may be considered in 
     determining whether this purpose is manifested.'' These 
     include specific actions by persons known to be prostitutes 
     or pimps. The Supreme Court of Florida voted 4-3 to strike 
     down the statute.
       Barkett wrote the court's principal opinion, though it was 
     joined in part or in full by only two other justices. She 
     found three basic flaws with the ordinance. First, she 
     considered the ordinance ``overbroad'' because it could 
     potentially be used to punish innocent conduct by known 
     prostitutes such as ``chatting on a public street, and simply 
     strolling aimlessly.'' There are a least two fundamental 
     problems with this position.
       The correct standard is not merely whether the language of 
     a statute is ``overbroad.'' Rather, to avoid mistaking an 
     over-active imagination for a sound constitutional argument, 
     the U.S. Supreme Court requires showing ``substantial'' 
     overbreadth.\8\ Barkett provided little that even arguably 
     meets this correct standard.
       In addition, Barkett refused to interpret the statute in a 
     way that will avoid finding a constitutional defect. Justice 
     McDonald's dissent emphasized this point and, citing U.S. 
     Supreme Court precedent, argued that the overbreadth doctrine 
     ``is to be employed as a last resort, and it is not to be 
     applied when a limiting construction can be placed on the 
     statute or ordinance to narrow it.'' The Supreme Court of 
     Florida has explicitly held that courts ``have a duty to 
     avoid a holding of unconstitutionality if a fair construction 
     of the legislation will so allow.''\9\ Barkett ignored this 
     duty.
       Barkett's second problem with the Tampa ordinance was that 
     it was vague, failing to give ``adequate notice of what is 
     prohibited'' and inviting ``arbitrary and discriminatory 
     enforcement.'' She said that it did not require a finding 
     that the defendant intended to engage in prostitution. 
     Arriving at this conclusion required completely ignoring the 
     plain language of the ordinance, which plainly states that 
     conviction requires providing loitering ``in a manner and 
     under circumstances manifesting the purpose of'' prostitution 
     or other sexual acts. How can any judge read a statute that 
     requires showing a specific purpose and claim that the 
     statute does not require showing intent? Justice McDonald 
     also cited numerous court decisions from other states 
     offering the same conclusion about similar ordinances.
       Barkett's third problem was that the ordinance violated 
     ``substantive due process'' because it intruded upon 
     ``individual rights and liberties.'' She made this amazing 
     constitutional assertion with no hint of what rights and 
     liberties were supposedly involved. As discussed more fully 
     below, this use of the due process clause is a favorite tool 
     of judicial activists for striking down legislation they do 
     not personally support.
       Barkett's position would probably invalidate any regulation 
     of public behavior, including disorderly conduct. Indeed, in 
     cases decided along with Wyche, Barkett struck down as 
     facially unconstitutional ordinances prohibiting loitering 
     for the purpose of engaging in drug-related activity.\10\ The 
     Supreme Court of Florida previously had upheld a general 
     anti-loitering statute\11\ and Barkett's opinion, though 
     never citing her own court's perhaps most relevant precedent, 
     appears to overrule this previous holding.
       Stall v. State (1990).\12\ Stall was convicted of violating 
     Florida's anti-obscenity law and challenged the 
     constitutionality of the statute. The trial court concluded 
     that the statute violated the Florida Constitution. The 
     appeals court reversed. The Supreme Court of Florida voted 5-
     2 to uphold the statute.
       Even though this case involved the state constitution, it 
     is very important to accurately describe Barkett's position. 
     In voting to strike down Florida's anti-obscenity law, 
     Barkett focused not on any constitutional provision, but on 
     obscenity itself. In so doing, she took a much broader 
     position that would apply if the U.S. Constitution were also 
     involved. She wrote: ``A basic legal problem with the 
     criminalization of obscenity is that it cannot be defined . . 
     . . [T]his crime, unlike all other crime, depends, not on an 
     objective definition obvious to all, but on the subjective 
     definition.''\13\
       Barkett's dissent appears to rest on the Florida 
     Constitution, though she insisted that the anti-obscenity 
     statute violated ``every principle of notice and due process 
     in our society.''\14\ Since the statute's definition of 
     obscenity tracks the U.S. Supreme Court's definition of 
     Miller v. California,\15\ Barkett's position appears to apply 
     in the federal context as well. The U.S. Supreme Court has 
     never held that some subjectivity in defining obscenity 
     creates a constitutional barrier to state's attempts at 
     regulating it. Curiously, Barkett never even cited Miller.
       Barkett insisted that operation of the Florida anti-
     obscenity statute required a completely subjective individual 
     judgment ``first, of those who happen to be enforcing the law 
     at the time, and, second, of the particular jury or judges 
     reviewing the case.''\16\ This characterization may help 
     create the feeling of subjectivity that is central to 
     Barkett's argument, but it is flatly false and is 
     contradicted by the plain language of the statute itself. The 
     statute, again tracking the U.S. Supreme Court's decision in 
     Miller, required determination and application of 
     contemporary community standards, not the subjective 
     individual judgment of prosecutors, jurors, or judges. In a 
     recent celebrated case, for example, the U.S. Court of 
     Appeals for the 11th Circuit--the very court to which Barkett 
     has been nominated--reversed a decision that the rap group 2 
     Live Crew had violated the state's anti-obscenity statute 
     because the trial judge had relied on his personal judgment 
     rather than on objective evidence of community standards.\17\
       Barkett also specifically joined what she called the 
     ``correct legal analysis''\18\ in Justice Kogan's dissent 
     which focused on the right to privacy in the Florida 
     Constitution. That opinion recognized a constitutional 
     ``right of discreet access to entertainment.''\19\ Barkett 
     also agreed with Kogan's statement that anti-obscenity laws 
     are merely vehicles ``for restricting individual 
     autonomy.''\20\
       ``At her confirmation hearing, Barkett insisted that Stall 
     involved `the very same statute' as another case in which she 
     voted to uphold a conviction under Florida's child 
     pornography statute.\21\ She repeatedly said that `in both 
     those cases, the same statute was being decided, the same 
     statute was being considered.'''
       ``This is not true. Stall involved the definition of 
     obscenity\22\ while Schmitt v. State involved the definition 
     of child pornography.\23\ The definitions are different and 
     the breadth of Barkett's position in Stall makes it even more 
     surprising that she did not take the same approach in 
     Schmitt.''

                      2. Hobbling law enforcement

       Barkett goes out of her way to strike down legitimate 
     legislative efforts to preserve community order and decency. 
     Her activism goes further, however, and includes efforts to 
     impose onerous and unwarranted restraints on effective law 
     enforcement. She seeks to impose per se rules restricting the 
     tools available to the police, particularly in the war on 
     drugs. A few examples follow.
       Cross v. State (1990).\24\ Detectives saw Cross in the 
     Miami Amtrak station boarding an interstate train with only a 
     small tote bag. They asked permission to search her bag, 
     advising her that she need not consent to the search. She 
     consented and they observed a round object wrapped in brown 
     tape. The officers later testified at trial that they had 
     seen cocaine packaged this way in literally hundreds of 
     cases. They arrested Cross and later found cocaine in the 
     package. A divided court of appeals concluded that there was 
     no probable cause for the arrest. The Supreme Court of 
     Florida reversed, voting 5-2 that the officers had probable 
     cause. Past decisions by the court make clear that police 
     officers' training and experience must be considered in 
     deciding whether probable cause exists for an arrest.\25\
       Barkett dissented for the reasons expressed by the author 
     of the appellate court's decision.\26\ That judge argued that 
     the object observed by the officers was ``not an inherently 
     suspect item.''\27\ This kind of per se rule completely 
     ignores judicial precedent mandating consideration of police 
     officers' experience and neither the appellate judge nor 
     Barkett offered any legal authority for this radical new 
     rule. Would Barkett have found probably cause if the object 
     had been wrapped in clear plastic rather than brown tape? 
     Does that make it an ``inherently suspect item'' or could it 
     still be a container of sugar or a white ball? Must the 
     package literally be labeled ``COCAINE'' for it to be 
     inherently suspect as the Barkett rule would require?
       Bostick v. State (1989).\28\ To battle the flood of drugs 
     through Florida, the Broward County sheriff's department 
     began a practice of randomly boarding interstate buses at 
     scheduled stops and asking passengers for permission to 
     search their luggage for drugs. In this case, police boarded 
     a bus bound from Miami to Atlanta, announced they were 
     narcotics agents, asked Bostick for permission to search his 
     luggage, and advised him of his right to refuse permission. 
     Bostick consented to the search and the officers found drugs. 
     Bostick was convicted of drug trafficking and appealed, 
     claiming the cocaine had been illegally seized in violation 
     of the Fourth Amendment to the U.S. Constitution. The Supreme 
     Court of Florida voted 4-3 that the search was illegal.
       Barkett wrote the majority opinion and created an automatic 
     per se rule against police boarding buses to search for 
     drugs, even with the travelers' permission. She wrote: ``This 
     is not Hitler's Berlin, nor Stalin's Moscow, nor is it white 
     supremacist South Africa.''\29\ After Barkett wrote these 
     words, the St. Petersburg Times (1/23/90) reported that 
     Florida Attorney General Robert Butterworth gave a speech to 
     the Florida Sheriffs Association and said that in this 
     opinion Barkett ``compared the searches conducted by 
     Broward County sheriff's deputies on commercial buses with 
     the roving patrols and arbitrary searches conducted in 
     Nazi Germany, Soviet Russia and communist Cuba. It is an 
     insult to the 36,000 police officers in our state to be 
     likened to Nazis.''
       ``At her confirmation hearing, Barkett denied ever writing 
     these words: `I would never compare the conduct of any of our 
     police officers in this country to those of Nazi Germany or 
     Soviet Russia.'''
       The U.S. Supreme Court reversed Barkett by a 6-3 
     margin.\30\ The Court criticized Barkett's ``per se rule'' 
     that essentially prohibited police officers from utilizing 
     exactly the same kind of search-with-permission approach on 
     buses that they may legitimately use in public places.\31\

                        3. Empathy for criminals

       In addition to her attempts to block passage of criminal 
     laws and to limit enforcement of those laws, Barkett also 
     attempts to prevent convicted criminals from receiving the 
     due penalty for their crimes. Her record is full of examples 
     of her ``rule by empathy'' approach justifying the conclusion 
     offered by the University of Miami Law Review. There is no 
     better way of understanding this nominee's judicial 
     philosophy than by examining this nominee's judicial 
     decisions. Examination immediately reveals a clear pattern. 
     Here are just some of the decisions that Barkett's supporters 
     refuse to defend or even discuss. A few cases will receive 
     more extensive review because they particularly reflect 
     Barkett's judicial philosophy.
       Dougan v. State (1992).\32\ Dougan was the ``unquestioned 
     leader'' of the Black Liberation Army (BLA), a group ``whose 
     apparent sole purpose was to indiscriminately kill white 
     people and thus start a revolution and racial war.''\33\ In 
     1974, he and three other BLA members set out armed to kill a 
     ``devil'' (any white person) they could find. They picked up 
     a hitchhiking teenager and drove him to a trash dump, where 
     they first stabbed and then shot him. Dougan made several 
     tape recordings describing and bragging about the killing\34\ 
     and sent them to the victim's mother and the media. One 
     tape included the following: ``He was stabbed in the back, 
     in the chest and the stomach, ah, it was beautiful. You 
     should have seen it. Ah, I enjoyed every minute of it. I 
     loved watching the blood gush from his eyes.''\35\
       Dougan was convicted of murder. The jury found three 
     aggravating factors and no mitigating factors\36\ and Dougan 
     was sentenced to death. He repeatedly appealed, and the 
     Supreme Court of Florida repeatedly affirmed his conviction 
     and sentence. On this latest visit, the court voted 4-3 to 
     affirm the death sentence.
       Barkett voted to spare Dougan. She joined Justice 
     McDonald's dissent in its entirety. Her supporters repeatedly 
     try to avoid attributing the very disturbing views in that 
     opinion to Barkett. They know, however, that Barkett could 
     have voted and written her own opinion. She could have voted 
     without joining any opinion. She could have joined a portion 
     of an opinion. In fact, she is regularly very deliberate 
     about these choices. If she disagreed with anything in 
     McDonald's opinion, she could and should have said so. By 
     concurring fully in that opinion, she claims those views as 
     her own.
       Barkett admitted that ``[t]here is evidence to support the 
     conclusions of the trial judge on the aggravating 
     factors''\37\ yet she still voted against the death penalty. 
     The evidence did not matter. Her ``great empathy for capital 
     defendants''\38\ led her to focus instead on ``the 
     environment in which the events'' took place as well as on 
     ``Dougan's mind-set'' during ``tumultuous times'' in race 
     relations across America.\39\ She chose to look at the 
     facts through ``the eyes of the defendant, his friends, 
     and most of those situated in [his] circumstances.''\40\ 
     The opinion she joined stated:
       ``This case is not simply a homicide case, it is also a 
     social awareness case. Wrongly, but rightly in the eyes of 
     Dougan, this killing was effectuated to focus attention on a 
     chronic and pervasive illness of racial discrimination and of 
     hurt, sorrow, and rejection. Throughout Dougan's life his 
     resentment to bias and prejudice festered. His impatience for 
     change, for understanding, for reconciliation matured to 
     taking the illogical and drastic step of murder. His 
     frustration, his anger, and his obsession of injustice 
     overcame reason. The victim was a symbolic representation of 
     the class causing the perceived injustices.''\41\
       The choice was clear: ``Understandably, in the eyes of the 
     victim, or potential victims, the aggravating factors clearly 
     outweigh the mitigating; in the eyes of the defendant, his 
     friends, and most of those situated in the circumstances of 
     Dougan, the death penalty is not warranted.''\42\ Barkett's 
     ``great empathy for capital defendants'' led her to reject 
     the evidence and to side with the killer rather than the 
     victim and the potential victims (society).
       Barkett believed Dougan did not deserve the death penalty 
     because he had ``redeeming values'' such as education and 
     leadership in the black community.\43\ Never mind that Dougan 
     manifested these values by leading others to kill people 
     whose only crime is being white. Barkett believed that this 
     was a ``racially caused homicide'' not because Dougan and his 
     fellow BLA thugs went about ``indiscriminately kill[ing] 
     white people'' but because ``it was this disease of racial 
     bias and discrimination [throughout society] that . . . 
     contributed to the . . . crime[].''\44\
       In Barkett's view, Dougan's punishment should be determined 
     by what will ``aid in an understanding of the wounds arising 
     from discordant racial relations which have permeated our 
     society. . . . An approval of the death penalty would 
     exacerbate rather than heal those wounds.''\45\
       Wickham v. State (1991).\46\ When a woman companion flagged 
     down a passing motorist, Wickham shot him in the back, chest, 
     and head and robbed his corpse of $4.05. The trial court 
     found six aggravators and no mitigators and sentenced Wickham 
     to death. The Supreme Court of Florida voted 4-2 to affirm 
     the death sentence.
       In Dougan, Barkett had said the death penalty was 
     inappropriate because the killer was intelligent and a 
     community leader. In this case, Barkett agreed that Wickham 
     was guilty, but insisted that the death penalty was 
     inappropriate because Wickham was ``mentally deficient'' and 
     ``socially maladjusted.''\47\ She voted to spare the killer, 
     blaming this murder on the ``milieu of violence'' in which he 
     grew up\48\ and the fact that inadequate provision of social 
     services had left him ``unable to function in an appropriate 
     manner.''\49\
       LeCroy v. State (1988).\50\ LeCroy was 17 years and 10 
     months old when he killed a man, robbed him and killed the 
     man's wife to silence her as a witness. The trial court found 
     three aggravators and two mitigators, including the killer's 
     age. ``The trial court gave great weight to [this] mitigating 
     factor but found that the evidence showed that [LeCroy] was 
     mentally and emotionally mature and that he understood the 
     distinction between right and wrong and the nature and 
     consequences of this actions.''\51\ Noting this finding and 
     that Florida law ``mandates that a child of any age charged 
     with a capital crime `shall be tried and handled in every 
     respect as if he were an adult,'''\52\ the Supreme Court of 
     Florida voted 6-1 to affirm the death sentence.
       Barkett again agreed that the killer was guilty but voted 
     to spare him. She insisted that executing anyone under the 
     age of 18 violates the U.S. and Florida Constitutions, 
     something the U.S. Supreme Court has never done. She blamed 
     all youth crime on ``a failure of family, school, and the 
     social system.''\53\
       Hall v. State (1993).\54\ Hall and a companion raped, beat, 
     and shot to death a woman who was seven months pregnant. The 
     trial court found seven aggravating factors and sentenced 
     Hall to death. The Supreme Court of Florida voted 5-2 to 
     affirm the death sentence, concluding that ``this cruel, 
     cold-blooded murder clearly falls within the class of 
     killings for which the death penalty is properly 
     imposed.''\55\
       Barkett voted to spare the killer because he had an IQ of 
     60, a learning disability, and a speech impediment and had 
     experienced ``emotional deprivation'' during his life.\56\ 
     She had no choice but to admit the holding of the U.S. 
     Supreme Court that the U.S. Constitution's ban on cruel and 
     unusual punishment ``does not categorically prohibit 
     execution of the mentally retarded.''\57\ While ``evolving 
     standards of decency'' have not forged a national consensus 
     on this subject, ``Floridians' attitudes'' have indeed 
     ``evolved significantly'' so that execution of even the 
     mildly retarded is both ``cruel'' and ``unusual'' under 
     Article I of the Florida Constitution.
       It remains virtually impossible to extract Barkett's theory 
     of constitutional interpretation. Here, she felt confident 
     articulating something as subjective as ``evolving standards 
     of decency.'' Yet in Stall v. State,\58\ discussed above, she 
     believed that Florida's anti-obscenity statute was 
     unconstitutional because defining obscenity involves a 
     subjective judgment!
       Porter v. State (1990).\59\ Porter left his live-in-lover 
     but returned three months later, stalked her for two days, 
     stole a gun, and murdered her and her new boyfriend. The 
     trial court found five aggravators and no mitigators and 
     sentenced Porter to death. The Supreme Court of Florida voted 
     5-2 to affirm the death sentence.
       Barkett again agreed that the killer was guilty but voted 
     to spare him. Even though Porter's relationship with the 
     victim had ended three months earlier, Barkett said that 
     this case arose from ``a lovers' quarrel'' and that Porter 
     was not capable of premeditation because of his 
     ``emotionally charged, desperate, frustrated desire to 
     meet with his former lover.''\60\
       Hudson v. State (1989).\61\ Hudson left his girlfriend but 
     returned two months later and broke into her house. He was 
     surprised by her roommate and stabbed her to death, stuffed 
     her body in the trunk of her car, and dumped her in a tomato 
     field drainage ditch. The trail court convicted Hudson of 
     first-degree murder and sentenced him to death. The Supreme 
     Court of Florida voted 6-1 to affirm the death sentence.
       Barkett cast the lone vote to spare the killer. She 
     believed that since Hudson ``was apparently surprised by the 
     victim during [his] burglarizing of the home,'' he was 
     ``unable . . . to conform his behavior to the requirements of 
     the law.''\62\ She offered nothing to explain this amazing 
     conclusion, that ``surprise'' by the rightful occupant of a 
     home should warrant a more lenient punishment for a murdering 
     intruder.
       Adams v. State (1989).\63\ Adams was convicted in 1978 of 
     murdering an 8-year-old girl with whom he tried, 
     unsuccessfully, to have sexual relations. State and federal 
     courts ruled nearly a dozen times against his attempts to 
     avoid the death penalty. The Supreme Court of Florida finally 
     voted 5-2 to again affirm the sentence. Barkett voted to 
     spare the killer and thought he should have had even more 
     opportunity to present evidence of ``learning problems'' 
     while growing up.
       Cruse v. State (1991).\64\ Cruse loaded his car with guns 
     and ammunition and headed for a shopping center. On the way, 
     he attempted to kill a 14-year-old boy, as well as the boy's 
     parents and brother, with a shotgun. At the shopping center, 
     he killed two shoppers and wounded a third while they were 
     leaving a grocery store. He then killed another customer, 
     wounded another, killed two police officers, killed one more 
     shopper, wounded several more, and held two women hostage for 
     several hours. The Supreme Court of Florida voted 6-1 to 
     affirm Cruse's multiple convictions of first-degree murder 
     and his death sentence.
       Barkett cast the lone vote to spare the killer, insisting 
     that this was not a cold, calculated, or premeditated killing 
     spree. She said Cruse was ``acting in response to his 
     delusions that people were trying to harm him.'' The 
     consensus of expert testimony did not support this 
     conclusion.
       Hayes v. State (1991).\65\ Hays and two of his drinking and 
     drugging friends decided to rob a taxi driver for more money 
     to buy cocaine. Hayes shot a driver in the back of the neck 
     and robbed the corpse of $40.00. The Supreme Court of Florida 
     voted 5-2 to affirm his conviction for first-degree murder as 
     well as his death sentence. Barkett voted to spare the killer 
     because of evidence that he had a neglectful, abusive, and 
     deprived upbringing.

                         4. Reflexive activism

       The cases reviewed above are but a few in which Barkett 
     goes out of her way to construe aggravating factors narrowly 
     and mitigating factors expansively. Her ``great empathy for 
     capital defendants'' leads her to make excuses for heinous 
     crimes and to treat criminals as the victims of society. 
     These decisions are often reflexive, without any explanation 
     or analysis, even when Barkett is alone in dissent.
       White v. State (1990).\66\ The Supreme Court of Florida 
     affirmed White's conviction for murder as well as his death 
     sentence and voted 5-2 to deny his petition, claiming 
     ineffective assistance of counsel, for post-conviction 
     relief. Barkett voted to spare the killer.
       ``Barkett's dissent read in its entirety: `I cannot concur 
     in the majority's conclusion that appellant received a fair 
     trial with effective assistance of counsel.'
       ``At her confirmation hearing, Barkett was asked why she 
     did not provide any further explanation or analysis for 
     disputing a sentence rendered after trial and reviewed and 
     upheld on appeal. She responded that `our court is an 
     extremely busy court  . .  I would have liked to have had, I 
     am sure, the opportunity to have expanded here. But time 
     constraints sometimes preclude you from amplifying any 
     further than that.'''
       Engle v. Florida (1987).\67\ Engle and another man robbed a 
     convenience store and killed the female cashier. The interior 
     of her vagina was severely lacerated, probably by a fist. The 
     trial judge rejected the jury's recommendation of life in 
     prison and, finding four aggravators and no mitigators, 
     sentenced Engle to death. The Supreme Court of Florida voted 
     6-1 to affirm the death sentence. Barkett cast the lone vote 
     to spare the killer. Her dissent stated, without any 
     explanation, her conclusion that ``the record adequately 
     supports the jury's recommendation of life imprisonment.''

                         C. Constitutional law

       The power of judicial review, of literally invalidating the 
     actions of the elected political branches, is an awesome 
     power indeed. As such, it is vital to determine whether a 
     judicial nominee is properly respectful of the political 
     process by faithfully and dispassionately applying the 
     Constitution as written and intended or shows a willingness 
     to substitute her own policy preferences or ideas in place of 
     the law. Just as Barkett's ``great empathy for criminal 
     defendants'' drives her jurisprudence in the criminal 
     context, her aggressive activism leads her to use 
     constitutional provisions to legislate from the bench.
       Two constitutional provisions, the due process clause and 
     the equal protection clause, have proven to be favorites of 
     those judges seeking an activist vehicle for legislating from 
     the bench. Barkett's record puts her squarely in this 
     category.

                       1. Due process clause\68\

       One of the most powerful weapons at an activist judge's 
     disposal is the due process clause, which requires ``due 
     process'' when a state deprives persons of life, liberty, or 
     property. This provision allows a judge both to determine 
     substantive ends (especially by defining the word 
     ``liberty'') and to assess the means for achieving those ends 
     (whether the process was ``due''). Particularly when a judge 
     engages in ``substantive due process,'' she can literally 
     declare constitutional rights to exist when no such rights 
     exist in the text, history, or intended meaning of the 
     Constitution. By so doing, she creates her own mechanism for 
     eliminating policies she does not support.
       The U.S. Supreme Court has rejected the substantive due 
     process approach. Justice Hugo Black once wrote that ``we 
     refuse to sit as a `superlegislature' to weight the wisdom 
     of legislation.''\69\ Legislative judgments are 
     presumptively valid and assumed to rest upon a rational 
     basis unless proved otherwise.\70\ As long as government 
     regulation not violating a separate constitutional 
     provision is rationally related to a legitimate state 
     interest, it is valid under the due process clause.\71\
       Barkett has repeatedly demonstrated her willingness to sit 
     as a superlegislature. Her aggressive judicial activism, 
     evidenced through her use of the due process clause, is a way 
     for her to achieve her preferred policy goals.
       State v. Saiez (1986).\72\ In an attempt to combat trade in 
     counterfeit credit cards, Florida law criminalizes possession 
     of the kind of embossing machine capable of manufacturing 
     fake cards. Barkett's opinion in this case held that the 
     statute ``violate[d] substantive due process under the 
     fourteenth amendment to the United States Constitution''\73\ 
     because it was not ``reasonably related to achieving [the] 
     legitimate legislative purpose'' of combatting credit card 
     fraud. Without citing a single authority, she simply declared 
     that ``[i]t is unreasonable to criminalize the mere 
     possession of embossing machines when such a prohibition 
     clearly interferes with the legitimate personal and property 
     rights of a number of individuals who use embossing machines 
     in their businesses and for other non-criminal activities.''
       Observing that criminalizing possession interferes with 
     personal liberty is merely to state the obvious. Barkett 
     turns this observation into her conclusion. Yet the question 
     for the court is whether this interference with personal 
     liberty is nonetheless reasonable because it is related to a 
     permissible state goal. Barkett fails to answer this question 
     with such irrational circularity.
       Simply because an object (or controlled substance, for that 
     matter) can conceivably be used for non-criminal purposes 
     does not mean that the state is constitutionally prohibited 
     from regulating or prohibiting its possession. No legitimate 
     constitutional principle disables society from weighing 
     benefits and costs and determining that possession of some 
     objects must be prohibited. This, indeed, is the point--
     Barkett's aggressive judicial activism operates on the basis 
     of her personal policy choices and cites manipulable 
     constitutional theories such as substantive due process to 
     create the impression that there is some sound legal basis 
     for her decisions.
       Wyche v. State (1993).\74\ The case is discussed more fully 
     above. Barkett wrote the opinion for a narrow majority of the 
     Supreme Court of Florida striking down a Tampa ordinance 
     prohibiting loitering for the purpose of prostitution. One of 
     her three fundamental problems with the ordinance was that it 
     violated ``substantive due process'' because it intruded upon 
     ``individual rights and liberties.'' Barkett completely 
     ignored the proper standard courts should follow, gave no 
     hint of what ``rights and liberties'' were supposedly 
     involved, and simply struck down a legislative enactment she 
     did not think wise or desirable.
       ``At her confirmation hearing, Barkett was asked why she 
     invoked the due process clause of the U.S. Constitution 
     rather than simply relying on the Florida Constitution. She 
     replied that `I can accept that in a body of law there are 
     going to be occasions when you are going to be careless.'''

                     2. Equal protection clause\75\

       Another favorite tool for judicial activism is the equal 
     protection clause. Every statute or ordinance imaginable uses 
     classification, categories, or distinctions. It does not 
     treat everything or everyone in exactly the same way. Sound 
     and clear guidelines are, therefore, essential to avoid 
     invalidating virtually all legislative actions and choices. 
     Fortunately, those guidelines are well-established. Justice 
     Clarence Thomas, writing for a nearly unanimous U.S. Supreme 
     Court, succinctly described it this way:
       ``[E]qual protection is not a license for courts to judge 
     the wisdom, fairness, or logic of legislative choices. In 
     areas of social and economic policy, a statutory 
     classification that neither proceeds along suspect lines nor 
     infringes fundamental constitutional rights must be upheld 
     against equal protection challenge if there is a reasonably 
     conceivable state of facts that could provide a rational 
     basis for the classification . . . This standard of review is 
     a paradigm of judicial restraint.''\76\
       Justice Harry Blackmun also wrote for the Court that unless 
     a statutory classification ``jeopardizes exercise of a 
     fundamental right to categorize on the basis of an 
     inherently suspect characteristic, the Equal Protection 
     Clause requires only that the classification rationally 
     further a legitimate state interest.''\77\ There only 
     needs to be a ``plausible policy reason for the 
     classification'' and the statute need only be 
     ``rationally'' related to that reason.\78\ This standard, 
     in most cases, is very deferential to legislative 
     judgments.
       The real test is whether a judge who personally disapproves 
     of a legislative scheme equates ``rational'' or ``plausible'' 
     with ``to my liking.'' Barkett's record shows that she has 
     succumbed to this approach. She has not been content with 
     upholding legislative enactments using classifications that, 
     while rational, she does not like. She has instead attempted 
     to use the equal protection clause to eliminate legislative 
     actions she thinks unwise or undesirable.
       University of Miami v. Echarte (1993).\79\ Florida law 
     provides for an investigation process prior to filing 
     malpractice claims,\80\ a voluntary arbitration process to 
     encourage settlement of claims,\81\ and a cap on noneconomic 
     damages in medical malpractice cases.\82\ Noneconomic damages 
     include pain and suffering, inconvenience, mental anguish, 
     and loss of capacity for enjoying life. Those damages are 
     capped at $250,000 when the parties opt for arbitration and 
     at $350,000 when they refuse arbitration and go to trial. In 
     this case, parents suing for allegedly negligent treatment of 
     their child challenged the constitutionality of this 
     statutory scheme.
       The Supreme Court of Florida voted 4-2\83\ to uphold the 
     statutory scheme, finding that the statute provided 
     ``commensurate benefits'' to offset the limitation on 
     damages, as required by relevant judicial precedents. Barkett 
     dissented and did not even address the basis for the 
     majority's decision. She instead addressed the equal 
     protection question.
       That task seems simple. A judge evaluating an equal 
     protection challenge to this statutory scheme must decide 
     whether it is a ``rational'' means of addressing a 
     ``legitimate'' end. In this case, Barkett herself saw the 
     statute's goal as addressing the ``financial crisis in the 
     medical liability insurance industry.'' Addressing this 
     crisis is certainly a ``legitimate'' end. A legislative task 
     force had found that ``the dramatic increase in the size or 
     amounts of paid claims'' was at the root of the liability 
     insurance crisis. The statute, which limits the ``size or 
     amount of paid claims,'' appears self-evidently to be more 
     than ``rationally'' related to its purpose.
       Barkett, however, concluded that the statutory scheme 
     violates ``the equal protection clauses of the Florida and 
     United States Constitutions'' by ``creating two classes of 
     medical malpractice victims, those with serious injuries 
     whose recovery is limited by the caps and those with minor 
     injuries who receive full compensation.'' She wrote: ``I fail 
     to see how singling out the most seriously injured medical 
     malpractice victims for less than full recovery bears any 
     rational relationship to the Legislature's stated goal.''
       It is Barkett's opinion that is irrational. The statutory 
     scheme is not based on some distinction between those with 
     ``serious'' or ``minor'' injuries. While it is true that the 
     more serious injury will likely be accompanied by a higher 
     claim for damages, this is not always the case. In any event, 
     actual or compensatory damages--which will certainly be 
     higher in cases of more serious injury--are not capped. 
     Barkett's deliberate choice of this dichotomy to describe the 
     statutory scheme clearly signals her personal distaste for 
     the policy but is entirely irrelevant to proper analysis of 
     the legal question before her.
       Just as she had in Saiez above, Barkett invoked the U.S. 
     Constitution, yet cited no federal judicial precedents for 
     her bizarre conclusion and did not even attempt to explain 
     its obvious conflict with settled U.S. Supreme Court doctrine 
     in this area.
       ``At her confirmation hearing, Barkett was again asked 
     about her invocation of the U.S. Constitution when state 
     constitutional grounds were sufficient for her conclusion. 
     She again admitted this was error, saying `I should not have 
     done that.'''
       Shriners Hospitals v. Zrillic (1990).\84\ Barkett wrote the 
     opinion for the Supreme Court of Florida striking down a 
     state law allowing an heir to cancel a charitable 
     contribution made in a will that was executed less than six 
     months before the testator's death. The obvious purpose of 
     the law was to prevent undue pressure to make such 
     contributions in a will.
       Barkett held that the state law in this case was both 
     underinclusive and overinclusive and again cited the equal 
     protection clause of the U.S. Constitution, claiming that 
     ``underinclusive or overinclusive classifications fail to 
     meet even the minimal standards of the rational basis test.'' 
     She cited no federal authority for this proposition. Indeed, 
     the U.S. Supreme Court has held exactly the opposite, namely, 
     that a classification does not violate the equal protection 
     clause simply because it ``is to some extent underinclusive 
     and overinclusive.''\85\ She faulted the statute for drawing 
     a line at six months when some gift provisions added to a 
     will earlier might be coerced, while others added later 
     might be made knowingly and willingly.
       ``At her confirmation hearing, Barkett was again asked 
     about her citing the U.S. Constitution when state 
     constitutional grounds were sufficient for her conclusion. 
     She actually denied that equal protection was `at all the 
     focus of what concerned me in Zrillic.' Even though she 
     explicitly cited the federal equal protection clause in 
     Zrillic, she claimed at her hearing that `when I am thinking 
     equal protection, generally I am thinking in terms of the 
     prior case law of my own court in my own State.'''
       Barkett's opinion fails the rationality test and is another 
     example of her cloaking her own policy preferences in legal-
     sounding language. Very little legislation could survive the 
     kind of test that Barkett created in this case, since most 
     statutes draw lines (many involving specific time limits). 
     Again, she chose to invoke the U.S. Constitution when state 
     law grounds were fully sufficient to reach her desired 
     result.

                       D. Civil rights and quotas

       Barkett served on the Florida Commission on the Status of 
     Women. This group's February 1993 report recommended 
     legislation mandating that 50% of the members on all state 
     boards, commissions, and other decisionmaking bodies be 
     women. Most rational people would identify this as a quota. 
     Black's Law Dictionary similarly defines ``quota'' as ``a 
     proportional part or share. . . . An assigned goal . . . a 
     limiting number of percentage.''\86\ Barkett was quoted in 
     the St. Petersburg Times as insisting this was ``not in the 
     context of a quota system. It is simply an acknowledgement 
     that women make up one-half of the population of this 
     state.'' This is utter nonsense. The percentage of women in 
     the Florida population may be the way the commission arrived 
     as its quota, but its recommendation was for a quota system 
     nonetheless. The Orlando Sentinel Tribune reported that even 
     Democratic Governor Lawton Chiles opposed the commission's 
     proposal because he said it would indeed create a quota 
     system.
       Foster v. State (1993).\87\ Foster killed a white man by 
     slitting his throat, dragging him into some bushes, and 
     slitting his spine. He then robbed the corpse. Foster's 
     lawyers delayed his execution for nearly two decades, finally 
     arguing that killers of white victims were more likely to 
     receive the death penalty than killers of black victims. The 
     U.S. Supreme Court had already rejected this statistically 
     manipulative way of avoiding the merits of individual cases, 
     saying that convicted killers claiming racial discrimination 
     must actually prove racial discrimination in their own 
     case.\88\ In Foster, the Supreme Court of Florida followed 
     this common sense course.
       Barkett dissented. Referring repeatedly to ``unconscious 
     racism'' pervading the criminal justice system, Barkett 
     opposed any ``standard that requires showing . . . purposeful 
     discrimination'' and would recognize a constitutional equal 
     protection claim by convicted murderers based on statistical 
     evidence alone. This includes evidence about the disposition 
     of murder cases--the extent of the theory rejected by the 
     U.S. Supreme Court--but ``also other information that could 
     suggest discrimination, such as the resources devoted to the 
     prosecution of cases . . . and the general conduct of a 
     [prosecutor]'s office, including hiring practices and the use 
     of racial epithets and jokes.''

                             D. Partiality

       Pursuing an aggressively activist approach to judging, 
     Barkett often turns from judge to legislator. She also turns 
     from judge to advocate. This raises very disturbing questions 
     about her ability to render impartial justice.
       Burr v. State (1987).\89\ Barkett's activism goes even 
     beyond reaching out to construe a case as it is brought to 
     her in any way that will treat a killer with empathy. Her 
     empathy also leads her to decide cases on grounds not even 
     raised by a killer appearing before her. In this case, Burr 
     was convicted of first degree murder and robbery with a 
     firearm. The Supreme Court of Florida affirmed his death 
     sentence and Burr filed a motion for post-conviction relief, 
     claiming ineffective assistance of counsel. The court voted 
     6-1 to reject this argument.
       Barkett again cast the lone vote to void the death 
     sentence, but for a reason the killer never even raised! She 
     wrote that ``I am deeply troubled . . . and cannot see the 
     sense in waiting for a formal petition for writ of habeas 
     corpus to argue a point I believe should have been argued on 
     direct appeal.''\90\ This clearly crosses the line between 
     judge and advocate; because Barkett thinks an argument 
     ``should have'' been raised but was not by the lawyer 
     actually representing the convicted killer, Barkett sees 
     no problem taking up his cause and doing the work herself. 
     It is one thing to display the kind of empathy and 
     aggressive activism, as Barkett clearly does, regarding 
     the cases that are actually brought before the court. It 
     is something even more egregious to attempt literally to 
     create a case that does not actually exist because it 
     would be more favorable to the convicted killer!
       In re Constitutionality of Senate Joint Resolution 2G 
     (1992).\91\ The Supreme Court of Florida approved a 
     legislative resolution re-apportioning the state for 
     electoral purposes. The U.S. Department of Justice objected 
     to the plan regarding one county because ``there are no 
     districts in which minority persons constitute a majority of 
     the voting age population.'' The legislature refused to 
     modify the plan so the court invited interested parties to 
     submit proposals, choosing a plan that ``gives minority 
     voters in the [county] the greatest opportunity to elect a 
     senator of their choice.''
       The entire substance of Barkett's separate opinion reads: 
     ``I am loath to agree to any of the convoluted plans 
     submitted under these hurried circumstances. . . . If I had 
     to choose only among those presented, however, I would choose 
     the plan submitted by the NAACP simply because this is the 
     organization that had traditionally represented and promoted 
     the position that advances all minority interests.'' In so 
     doing, Barkett chose to decide this case not on the basis of 
     the arguments and evidence presented on the legal questions 
     involved, but by the identity of the parties before her. This 
     is the antithesis of equal justice under law.
       ``At her confirmation hearing, Barkett admitted that her 
     words were `very inartful.'''
       University of Miami v. Echarte (1993). This case is 
     reviewed more thoroughly above. In October 1991, the Academy 
     of Florida Trial Lawyers submitted an amicus brief in this 
     case arguing that statutory caps on noneconomic damages in 
     medical malpractice cases are unconstitutional. In 1992, the 
     Academy established the Rosemary Barkett Award end, in 
     November 1992, Barkett agreed to present the first award at 
     the organization's annual convention. That gathering took 
     place one week after Barkett won her retention election, 
     after significant contributions of time and money from the 
     state's trial lawyers. In May 1993, Barkett wrote her dissent 
     in Echarte arguing that statutory caps on noneconomic damages 
     in medical malpractice cases are unconstitutional.
       This kind of involvement with an organization then involved 
     in litigation before her raises a serious question of 
     impropriety.


                     iii. the defenders' arguments

       Perhaps the most significant thing about Barkett's 
     supporters is that they never defend her actual record, the 
     dozens and dozens of very controversial opinions that express 
     the substance of the nominee's real views. They prefer 
     instead to make three statistical arguments. They remind us, 
     first, that Barkett won her last retention election in 1992; 
     second, that she votes with the majority on her court a 
     majority of times; and third, that she has voted for the 
     death in a number of cases.

                   A. She won her retention election

       First, Barkett's supporters note that she was retained by a 
     61% vote in 1992. They never mention that this is the second-
     lowest level of support of any justice ever sitting for 
     retention. They also never mention that no justice in Florida 
     history has ever failed to win retention for an obvious 
     reason. Political scientist Stuart Rothenberg, Ph.D. says: 
     ``Retention elections aren't like other elections. Voters are 
     far less likely to vote out an incumbent when the alternative 
     is a vacancy than when they have competing candidates to 
     choose from.''
       Neither Barkett nor her supporters mention the 
     unprecedented level of opposition to her retention, 
     reflecting deep dissatisfaction about the Supreme Court of 
     Florida in general and Justice Barkett in particular.
       Complaints about the Supreme Court of Florida's leniency in 
     death penalty cases also came from the judiciary itself. 
     Circuit Judge Richard Eade said last year that ``if I 
     sentenced Adolf Hitler and imposed the death penalty, the 
     Supreme Court would say there is some mitigating factor. 
     They'd probably overturn the death penalty because he made 
     sure the trains ran on time and he wasn't lazy.''\92\
       State Attorney General Robert Butterworth publicly 
     supported Barkett during her 1992 retention election. Yet 
     just two years before, he said that ``the Florida Supreme 
     Court has begun to show itself substantially more liberal on 
     crime issues than the U.S. Supreme Court.''\93\ Two of three 
     cases Butterworth singled out for particular criticism were 
     authored by Barkett. Both were later reversed by the U.S. 
     Supreme Court.
       Other expressions of opposition to retaining Justice 
     Barkett in 1992 include:
       28 assistant state attorneys in the First Judicial Circuit 
     signed a letter dated October 20, 1992 ``strongly opposed to 
     Rosemary Barkett's retention. . . . [O]ur opposition stems as 
     much from her judicial activism as it does from our 
     dissatisfaction with her judicial opinions. She has 
     repeatedly sided with criminals and defense lawyers on issues 
     ranging from the death penalty, double jeopardy, statutory 
     constructions, to search and seizure. . . . Simply stated, 
     Justice Barkett is a judicial activist whose beliefs and 
     agenda are not consistent with those of main stream 
     citizens.''
       The Fraternal Order of Police Lodge #69 in Vero Beach voted 
     to oppose Barkett's retention because of ``her preferential 
     treatment being given to criminals and the lack of concern 
     shown for victims.'' They noted that in more than 150 
     criminal cases, Barkett voted in favor of law enforcement 
     just five times.
       The Polk County Chiefs Association voted unanimously to 
     oppose Barkett's retention, stating that ``[h]er record as it 
     relates to criminal justice matters and the manner in which 
     she has undermined an already troubled system were cause for 
     shock and concern to all present.'' The Dade County 
     Association of Chiefs of Police also voted to oppose 
     Barkett.\94\
       Writing in the Orlando Sentinel, the state attorney for the 
     Ninth Judicial Circuit, stated that ``I do not stand alone in 
     my opposition to Barkett. A number of other state attorneys 
     have publicly stated their opposition, as well as at least 16 
     sheriffs, dozens of police chiefs and hundreds of police 
     officers.''\95\
       A full 21 percent of Florida lawyers opposed her, the 
     highest negative tally of the four state supreme court 
     justices considered for retention in 1992\96\ and ``the 
     second-lowest in the 18 Supreme Court retention elections 
     since they began in 1980.''\97\ The only supreme court 
     justice who received a lower rating ``was tainted by scandal 
     and nearly impeached.''\98\
       A newspaper ad listed 49 chiefs of police, 18 country 
     sheriffs, and six state attorneys opposing Barkett's 
     retention. By letter dated October 29, 1992, Jerry Blair, 
     state attorney for the Third Judicial Circuit, confirmed that 
     five more country sheriffs in his jurisdiction had formally 
     announced their opposition as well. By letter of the same 
     date, Tom Tramel, Sheriff of Columbia County, announced a 
     list of 21 county sheriffs opposed to Barkett.
       Announcing his opposition to Barkett's retention on October 
     29, 1992, Bruce Colton, state attorney for the Nineteenth 
     Judicial Circuit, stated that she ``has demonstrated that she 
     will not follow precedent, and has led the charge to change 
     the law in several areas so that it provides a greater 
     benefit to those convicted of crimes. The truth is that her 
     rulings have adversely affected the ability of the officer on 
     the street and the prosecutor in the trenches to do their job 
     effectively, and she has never demonstrated a care for 
     victims of crimes. . . . Barkett has a judicial philosophy 
     that embraces a social agenda that is clearly out of touch 
     with the legitimate needs of all law abiding citizens in this 
     state.''
       William Meggs, state attorney for the Second Judicial 
     Circuit, announced his opposition to Barkett's retention by a 
     letter dated August 11, 1992, which stated that ``the 
     decisions of Justice Barkett hinder and defeat the efforts of 
     our law enforcement officers on the front lines of [the drug] 
     war . . . Those of us who labor in the criminal justice arena 
     are very concerned with protecting the rights of those 
     accused of crimes. However, the pendulum has swung so far 
     protecting the accused that our streets are not safe for law 
     abiding citizens.''

            B. She votes with the majority most of the time

       Second, Barkett's supporters claim that she votes with the 
     majority the majority of times. Yes, and on the U.S. Supreme 
     Court, conservative Justice William Rehnquist and liberal 
     Justice William Brennan often voted together as well. In 
     April 1987, the Washington Post speculated that Justice 
     Antonin Scalia, the Court's most conservative member, would 
     actually strengthen the liberal wing of the Court because he 
     was voting with Justice Brennan so often.
       The Supreme Court of Florida decides two-thirds of its 
     cases by unanimous votes, meaning only that liberal activists 
     vote with their more restrained colleagues on relatively easy 
     cases. Senator Orrin Hatch, ranking member of the Judiciary 
     Committee, stated in a Senate floor speech on March 22, 1994, 
     that ``a large number of cases of any appellate court are, 
     frankly, routine, and I would expect that virtually all 
     judges would rule unobjectionably in most cases before 
     them.''\99\ This also means most judges will vote the same 
     way in most of those cases.
       Just as Barkett's supporters ignore her actual record, they 
     also exalt form over substance. Where it counts, Barkett 
     stakes out clearly activist positions placing her outside the 
     mainstream of what is required for the federal courts. 
     Looking at the easy cases, where Barkett or any other judge 
     would vote with the majority, still ignores--as Barkett's 
     supporters routinely do--the many controversial opinions she 
     has written.

                 C. She has voted for the death penalty

       The heart of the case for this nomination is a single 
     number. In an attempt to overcome the nominee's activist 
     record, Barkett's supporters claim that she has ``voted for 
     the death penalty'' in 275 cases. This number comes from 
     Professor Stephen Gey of Florida State University School of 
     Law and is offered by the White House as supposed proof that 
     Barkett is ``tough on crime.'' The media outlets which 
     quickly repeated--but did not examine--this statistical 
     claim, make similar statements. Responding to a column in the 
     Wall Street Journal,\100\ Professor Gey wrote that Barkett 
     ``has voted to uphold the death penalty more than 200 
     times.''\101\ A reporter for the St. Petersburg Times wrote 
     that ``she has voted to uphold the death penalty many 
     times.''\102\ The Wall Street Journal reported that Barkett 
     ``has voted more than 200 times to affirm capital 
     sentences.''\103\
       None of these statements is true. The list of cases in 
     which Barkett's supporters claim she has ``voted for the 
     death penalty''' is so full of misrepresentation as to 
     constitute an attempt deliberately to mislead the U.S. 
     Senate.
       This analysis offers a brief overview of how deceptive and 
     unreliable this list is. Each case discussed below is on the 
     Gey/White House list and represented by Barkett's supporters 
     as a ``vote for the death penalty.'' Even this cursory review 
     shows that the foundation for the most critical argument in 
     favor of the Barkett nomination is fundamentally flawed and 
     inaccurate. As such, the case for her nomination collapses 
     and the Senate is left with the many controversial 
     opinions reflecting aggressive activism and views far 
     outside the mainstream that remain undefended because they 
     are indefensible.

    1. Cases not properly counted as ``votes for the death penalty''

       The claim that Barkett has ``voted for the death penalty'' 
     in 275 cases leaves the impression that the vote in each of 
     these cases was actually on the death penalty. This is not 
     true at all. In fact, the list includes many cases where 
     Barkett actually voted against the death penalty. Many of the 
     cases on the list should not be there at all. Barkett's 
     supporters, for example, count the following as ``votes for 
     the death penalty'':
       Cases in which Barkett voted for the conviction but 
     explicitly voted against the death sentence.\104\
       Cases in which the court refused, but Barkett would grant, 
     a stay of execution.\105\
       Cases in which the court refused, but Barkett would grant, 
     some post-conviction relief for the killer.\106\
       Cases in which the court refused, but Barkett would grant, 
     a stay of execution and other post-conviction relief for the 
     killer.\107\
       Cases in which Barkett joined the court in granting a stay 
     of execution.\108\
       Cases in which Barkett joined the court in vacating a death 
     sentence.\109\
       Cases in which Barkett joined the court in granting post-
     conviction relief for the killer.\110\
       Cases in which Barkett would grant more post-conviction 
     relief for the killer than the court.\111\
       Cases in which Barkett joined the court in reducing a 
     sentence from death to life.\112\
       Cases in which Barkett dissented from the court's denial of 
     post-conviction relief and a stay of execution for the 
     killer.\113\
       None of these cases, or many others like them, properly 
     belongs on any list of ``votes for the death penalty.''
       Believe it or not, Barkett's supporters are attempting to 
     persuade the U.S. Senate, the media, and the American people 
     that a vote to vacate a death sentence is a ``vote for the 
     death penalty.'' They claim that a vote against a death 
     sentence is nonetheless a ``vote for the death penalty.'' How 
     can they possibly justify this?
       First, the list includes many cases in which the merits of 
     a killer's conviction and death sentence had already been 
     decided, but the killer was still trying to avoid execution 
     by making motions for a variety of post-conviction relief. 
     Barkett's supporters sometimes refer to these as votes ``to 
     enforce'' the death penalty rather than votes ``for'' the 
     death penalty. Any time, for example, the court denies a 
     motion for post-conviction relief--no matter how frivolous or 
     repetitious--the case would go on the list because that 
     decision's effect was to allow implementation of the death 
     penalty.
       Second, the list includes many cases in which Barkett, 
     either with or against the court, would oppose some form of 
     post-conviction relief (justifying its placement on the list 
     as a vote to ``enforce'' the death penalty) but would grant 
     some other relief (dictating the actual outcome in the case).

  2. Gimmicks for inflating Barkett's ``votes for the death penalty''

       In addition to including many cases which do not properly 
     belong on any legitimate list of ``votes for the death 
     penalty,'' Barkett's supporters also use various gimmicks to 
     inflate the number even further. The first is multiple 
     counting of cases reviewing the merits of a killer's 
     conviction and death sentence and all subsequent efforts by 
     the same killer to avoid execution.\114\
       A second gimmick is multiple counting the very same case 
     when the court denies different kinds of post-conviction 
     relief at the same time. Death-row inmates can pursue two 
     different avenues of relief after the Supreme Court of 
     Florida rules against them on the merits of their conviction 
     and sentence. The first is under Florida Rule of Criminal 
     Procedure 3.850 and the other is a petition for a writ of 
     habeas corpus. Convicted killers often file a Rule 3.850 
     motion in the trial court and add a habeas petition when 
     appealing that motion's denial. The Supreme Court of Florida 
     will often consider both requests for post-conviction relief 
     together and decide both matters in the same opinion. 
     Barkett's supporters count such cases at least twice.\115\
       As Senator Orrin Hatch put it: ``This doublecounting has 
     the predictable effect of padding the list of cases in which 
     the White House says that Justice Barkett has voted to 
     enforce the death penalty. Even more remarkably, it has the 
     perverse effect of including in this list of supposed votes 
     to enforce the death penalty numerous cases in which Justice 
     Barkett has in fact voted to grant relief to the petitioning 
     convicted murderer.''\116\
       Consider, for example, that in Adams v. State,\117\ the 
     Supreme Court of Florida affirmed the conviction and death 
     sentence, affirmed the trial court's denial of Adams' motion 
     to vacate the judgment, denied Adams' motion for a writ of 
     habeas corpus, and affirmed the trial court's denial of 
     Adams' motion to vacate the judgment two more times. In 
     Professor Gey's analysis, any justice voting with the 
     majority in these decisions would receive five ``votes for 
     the death penalty.'' Yet each of these rulings--on the merits 
     of a conviction and sentence, reviewing a trial court's 
     denial of a motion to vacate, and considering a motion for a 
     writ of habeas corpus--has a different legal standard, raises 
     different issues, and requires a different method of 
     analysis. None but the substantive review on the merits 
     actually considered the conviction of a death-eligible crime 
     or the death sentence itself.
       A third gimmick is counting decisions on purely procedural 
     issues as ``votes for the death penalty.''\118\
       A fourth gimmick is counting decisions where Barkett 
     explicitly states opposition to precedent which precludes 
     post-conviction relief as ``votes for the death penalty.'' In 
     Hamblen v. State,\119\ the Supreme Court of Florida held that 
     a trial court is not automatically required to appoint 
     counsel to present evidence against imposing the death 
     penalty on someone convicted of a capital crime when that 
     individual chooses not to present such evidence. Barkett 
     dissented. In several subsequent cases, she appeared to join 
     the majority in one of those ``votes for the death penalty,'' 
     but specifically said that she adhered to her dissent in 
     Hamblen, meaning that she really opposed imposition of the 
     death penalty in those cases.\120\
       As usual, it is what Barkett's supporters do not say that 
     tells the real story. As Senator Bob Dole put it in his 
     Senate floor speech on February 24, 1994:
       ``Yes, it is true that Justice Barkett has, on numerous 
     occasions, joined with her colleagues on the Florida Supreme 
     Court in voting to uphold the imposition of the death 
     penalty. But it's also true that she is the most anti-death 
     penalty member of the Florida court, having dissented more 
     than one hundred times--and often without explanation--from 
     the court's decision to enforce a capital sentence. By 
     contrast, Justice Barkett has never--not once--dissented from 
     a majority decision of the Florida Supreme Court that 
     granted relief to a convicted capital murderer.''
       In other words, she has dissented from the majority to 
     argue that the court should be more lenient on a convicted 
     killer, but has never dissented from the majority to argue 
     that the court should be more harsh.


           iv. barkett's record is far outside the mainstream

       In many areas, Barkett's stated positions are at odds with 
     clear holdings of the U.S. Supreme Court, congressional 
     decisions, and views of criminal justice officials around the 
     country. Here are just a few examples.
       Executing Minors. In LeCroy above, Barkett was alone in 
     stating that executing anyone under the age of 18 violates 
     the U.S. Constitution. Her position would prevent the states 
     as well as the federal government from ever executing minors, 
     no matter how brutal the crime or how mature the criminal. 
     The U.S. Supreme Court has rejected this blanket 
     position.\121\ On November 8, 1993, the U.S. Senate rejected 
     a proposal to prohibit even the states from executing anyone 
     under the age of 18. The following Senators voted against the 
     measure:
       Baucus (MT), Bennett (UT), Bond (MO), Breaux (LA), Brown 
     (CO), Bryan (NV), Burns (MT), Byrd (WV), Cochran (MS), and 
     Craig (ID).
       D'Amato (NY), Daschle (SD), Dole (KS), Domenici (NM), Exon 
     (NE), Faircloth (NC), Feinstein (CA), Ford (KY), Gorton (WA), 
     and Graham (FL).
       Gramm (TX), Grassley (IA), Hatch (UT), Heflin (AL), Helms 
     (NC), Johnston (LA), Kassebaum (KS), Kempthorne (ID), Kerrey 
     (NE), and Lieberman (CT).
       Lugar (IN), Mack (FL), Mathews (TN), McCain (AZ), McConnell 
     (KY), Murkowski (AK), Nickles (OK), Nunn (GA), Packwood (OR), 
     and Pressler (SD).
       Pryor (AR), Reid (NV), Riegle (MI), Roth (DE), Sasser (TN), 
     Simpson (WY), Smith (NH), Specter (PA), Stevens (AK), 
     Thurmond (SC), Wallop (MY), and Warner (VA).
       Pornography and Obscenity. In Stall above, Barkett insisted 
     that all obscenity laws are unconstitutional. The U.S. 
     Supreme Court has rejected this position for decades, holding 
     instead that obscenity is not protected by the Constitution 
     at all.\122\ On November 4, 1993, the U.S. Senate voted 100-0 
     to repudiate the Reno Justice Department's effort to weaken 
     interpretation of the federal child pornography statute 
     and, six days later, President Clinton also called for 
     ``the broadest possible protection against child 
     pornography.'' The Supreme Court has held that child 
     pornography is similarly unprotected by the Constitution.
       Racial Statistics and the Death Penalty. In Foster above, 
     Barkett argued that statistical ratios comparing the race of 
     murders and victims to society at large can establish an 
     equal protection constitutional claim against implementation 
     of the death penalty. As Senator Hatch put it, this position 
     ``would virtually paralyze implementation of the death 
     penalty.''\123\
       When it debated the 1990 crime bill, Congress considered 
     the ``Racial Justice Act'' which would have established this 
     kind of numbers game. It would have allowed by defense lawyer 
     with a calculator to void the death penalty. The Los Angeles 
     Times (4/23/90) concluded that ``the practical effect may be 
     to abolish the death penalty nationwide.'' In a letter dated 
     March 12, 1990, the attorneys general of 23 states with death 
     penalty statutes stated their opposition to this measure 
     which, they wrote, ``is designed to do nothing less than end 
     the death penalty in this country.'' Barkett's statistical 
     theory goes far beyond the Racial Justice Act by allowing 
     consideration of a much broader universe of statistics, 
     including budget allocations, hiring practices, and intra-
     office humor.
       The following presently serving U.S. Senators were in the 
     majority that rejected the Racial Justice Act in 1990:
       Baucus (MT), Bingaman (NM), Bond (MO), Breaux (LA), Bryan 
     (NV), Bumpers (AR), Burns (MT), Byrd (WV), and Coats (IN).
       Cochran (MS), D'Amato (NY), Dole (KS), Domeninci (NM), Exon 
     (NE), Ford (KY), Gordon (WA), Graham (FL), and Gramm (TX).
       Grassley (IA), Hatch (UT), Heflin (AL), Helms (NC), 
     Hollings (SC), Johnston (LA), Kassebaum (KS), Lieberman (CT), 
     and Lott (MS).
       Lugar (IN), Mack (FL), McCain (AZ), McConnell (KY), 
     Murkowski (AK), Nickles (OK), Nunn (GA), Pressler (SD), and 
     Pryor (AR).
       Robb (VA), Roth (DE), Shelby (AL), Simpson (WY), Specter 
     (PA), Stevens (AK), Thurmond (SC), Wallop (WY), and Warner 
     (VA).
       Senator Robert Dole (R-KS) announced his opposition to 
     Barkett on the Senate floor on February 24, 1994. In his 
     floor speech, he noted the Supreme Court of Florida's 
     rejection of the ``statistical-evidence defense'' in Foster 
     and the similarity of Barkett's position in that case to the 
     Racial Justice Act which the Senate, let by Senator Bob 
     Graham (D-FL), rejected in 1990. He quoted Senator Graham 
     from the debate on the Racial Justice Act as saying: ``The 
     very nature of the criminal justice [system] does not lend 
     itself to statistical precision. . . . The Constitution 
     requires an individualized determination as to the 
     appropriateness of the death penalty.''
       Senator Graham was obviously in a difficult position, 
     having led the opposition to legislation in 1990 embodying 
     this radical theory while supporting a judicial nominee in 
     1994 who embraces an even more radical version of the same 
     theory. He gave a floor speech hours after Senator Dole's 
     remarks in which he tried to draw a clear distinction between 
     the two. He insisted that the Racial Justice Act dealt with 
     broad ``statistical evidence as to a wide variety of cases'' 
     covering ``an entire judicial jurisdiction.''\124\ In 
     contrast, he argued that Barkett's theory in Foster related 
     to ``a specific act of racial discrimination''\125\ by ``a 
     specific Florida State prosecutorial official.''\126\ Senator 
     Graham said, simply put, that the Racial Justice Act's theory 
     was broad while Barkett's theory in Foster was narrow.
       To prove his point, Senator Graham asked that Barkett's 
     opinion in Foster be included in the public record. In so 
     doing, he acknowledged that Barkett's own words answer the 
     question about her views on this issue. That opinion appears 
     at pages S1838-39 in the February 24, 1994, edition of the 
     Congressional Record. It omits the three most important 
     paragraphs demonstrating that Barkett's theory goes far 
     beyond the Racial Justice Act. One of those paragraphs reads:
       ``Statistical'' evidence should be construed broadly to 
     include not only historical analysis of the disposition of 
     first-degree murder cases in a particular jurisdiction, but 
     also other information that could suggest discrimination, 
     such as the resources devoted to the prosecution of cases 
     involving white victims as contrasted to those involving 
     minority victims, and the general conduct of a [prosecutor]'s 
     office, including hiring practices and the use of racial 
     epithets and jokes.
       Senator Graham said that Barkett's theory related only to 
     specific acts by a specific prosecutor in a specific 
     jurisdiction. Barkett's opinion says that relevant evidence 
     goes beyond ``the disposition of . . . cases in a particular 
     jurisdiction.'' The Racial Justice Act dealt only with 
     statistical evidence derived from analyzing the disposition 
     of actual murder cases. Barkett's theory says that relevant 
     evidence goes completely beyond such evidence to include 
     budget allocations, hiring decisions, and intra-office humor. 
     Senator Graham offered Barkett's opinion but eliminated the 
     very portion that proved him dead wrong.
       Senator Graham's chief of staff said that the mysteriously 
     missing paragraphs were ``contained on a single missing 
     facsimile page that may have been omitted by the staff who 
     assembled the Record.''\127\ He said that they would know for 
     sure by Monday, February 28. As of March 29, 1994, Senator 
     Graham's office had not produced any missing facsimile page 
     or any other evidence to explain how the very three 
     paragraphs most critical to the dispute between Senator 
     Graham and Senator Dole not only ended up cleanly isolated on 
     one facsimile page, but also were the only paragraphs to be 
     omitted from the opinion Senator Graham entered into the 
     Congressional Record. It also remains a mystery why Senator 
     Graham's office had to receive Barkett's opinion in Foster 
     suddenly by facsimile since that opinion had been the focus 
     of controversy for at least four months and Senator Graham 
     has been Barkett's leading Senate supporter. Senator Graham 
     has issued no clarification or admission that the paragraphs 
     he omitted prove him wrong.


                             v. conclusion

       The proper way to evaluate a judicial nominee is by 
     examining her judicial philosophy as reflected in her 
     substantive record. Rosemary Barkett's aggressive judicial 
     activism is evident throughout her record, across a range of 
     issues. She goes out of her way to block attempts to enact 
     criminal laws, to limit enforcement of criminal laws, and to 
     prevent implementation of criminal laws. Barkett uses 
     constitutional provisions such as the due process and equal 
     protection clauses to legislate from the bench, all the while 
     ignoring judicial precedent, wrongly citing the U.S. 
     Constitution, and failing to properly defer to legislative 
     judgments. Barkett's record clearly shows sympathy for rigid 
     numerical quotas based on gender or race. That record also 
     raises serious questions about her ability or commitment to 
     dispense impartial justice--the very essence of the judicial 
     function.
       Barkett's supporters never defend the many controversial 
     opinions and positions she has adopted over the years. 
     Rather, they retreat to three basic statistical arguments. 
     The most important of these is that Barkett has voted for the 
     death penalty in many cases. In what can only be called a 
     scandal, however, the list offered by the White House of 
     these cases contains so many misrepresentations as to 
     constitute an attempt deliberately to mislead the Senate, the 
     media, and the American people.
       Finally, Barkett has embraced positions on important 
     issues, including execution of murderers under the age of 18, 
     the ``statistical evidence defense'' to the death penalty, 
     and obscenity laws that are far outside the mainstream. The 
     U.S. Supreme Court and U.S. Senate have repeatedly rejected 
     these positions.
     \1\Director, Judicial Selection Monitoring Project, Free 
     Congress Research & Education Foundation. B.A. with honors, 
     Calvin College (1983); J.D. cum laude, State University of 
     New York (SUNY) at Buffalo (1987); M.A., SUNY-Buffalo (1989). 
     Law clerk, U.S. Court of Appeals, Third Circuit (1988-89).
     \2\Article II, Section 2 states in part that the President 
     ``shall nominate, and by and with the advice and consent of 
     the Senate, shall appoint . . . Judges of the Supreme Court, 
     and all other Officers of the United States.''
     \3\A project of the Free Congress Foundation's Center for Law 
     & Democracy, the Judicial Selection Monitoring Project is 
     supported by a coalition of more than 50 national and state 
     organizations. It was launched in August 1992 to expand the 
     Foundation's participation in the discussion over judicial 
     nominations.
     \4\Comment, ``Justice Barkett's Feminist Jurisprudence,'' 46 
     Univ. of Miami Law Review 1161, 1162 (1992).
     \5\Id. at 1175.
     \6\Id. at 1178.
     \7\619 So.2d 231 (Fla. 1993).
     \8\See Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
     \9\State v. Ecker, 311 So.2d 104, 109 (Fla. 1975).
     \10\Holliday v. City of Tampa, 619, So.2d 244 (Fla. 1993); 
     E.L. v. State, 619 So.2d 252 (Fla. 1993).
     \11\State v. Ecker, 311 So.2d 104 (Fla. 1975).
     \12\570 So.2d 257 (Fla. 1990).
     \13\Id. at 263 (Barkett, J., dissenting) (emphasis added).
     \14\Id. at 263.
     \15\413 U.S. 15 (1973).
     \16\Stall, 570 So.2d at 263.
     \17\Luke Records, Inc. v. Navarro, 960 F.2d 132 (11th Cir. 
     1992).
     \18\Stall, 570 So.2d at 263.
     \19\Id. at 264 (Kogan, J., dissenting).
     \20\Id. at 268.
     \21\Schmitt v. State, 590 So.2d 404 (Fla. 1991).
     \22\Florida Statutes Sec. 827.001.
     \23\Florida Statutes Sec. 827.071.
     \24\560 So.2d 228 (Fla. 1990).
     \25\See, e.g., P.L.R. v. State, 455 So.2d 363 (Fla.1984), 
     cert. denied, 469 U.S. 1220 (1985); Palmer v. State 467 So.2d 
     1063 (Ct. App. 1985); State v. Ellison, 455 So.2d 424 (Ct. 
     App. 1984); State v. Redding, 362 So.2d 170 (Ct. App. 1978).
     \26\Cross, 50 So.2d at 231 (Barkett, J., dissenting).
     \27\Florida v. Cross, 535 S.2d 282, 283 (Ct. App. 1988).
     \28\554 So.2d 1153 (Fla. 1989).
     \29\Id. at 1158.
     \30\Florida v. Bostick, 111 S.Ct. 2382 (1991).
     \31\Id. at 2385.
     \32\595 So.2d (Fla. 1992).
     \33\Id. at 2, quoting the trial judge who ``accurately set 
     forth the fact of this murder.''
     \34\A transcript of the tapes is available upon request from 
     the Judicial Selection Monitoring Project.
     \35\Dougan, 595 So.2d at 3, quoting the trial judge.
     \36\Under Florida law, a jury convicting someone of a capital 
     crime must separately consider whether to impose the death 
     penalty. The death penalty is warranted if the 
     ``aggravating'' circumstances outweigh the ``mitigating'' 
     circumstances. Florida law lists 11 aggravators and seven 
     mitigators. See Florida Statutes Sec. 921.141. The U.S. 
     Supreme Court has held that a jury may choose only from the 
     aggravators listed in the statute but may consider any 
     mitigators, whether listed or not. See Eddings v. Oklahoma, 
     455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978) 
     (plurality opinion).
     \37\Dougan, 595 So.2d at 6 (McDonald, J., dissenting).
     \38\Comment, supra note 4, at 1178.
     \39\Id. at 7.
     \40\Id.
     \41\Dougan, 595 So.2d at 7-8 (emphasis added).
     \42\Id. at 7.
     \43\Id. at 8.
     \44\Id.
     \45\Id.
     \46\593 So.2d 191 (Fla. 1991).
     \47\Id. at 195 (Barkett, J., concurring in part and 
     dissenting in part).
     \48\Id.
     \49\Id.
     \50\533 So.2d 705 (Fla. 1988).
     \51\Id. at 755-56 (emphasis added).
     \52\Id. at 756, quoting Florida Statutes Sec. 39.02(5)(c).
     \53\Id. at 759.
     \54\614 So.2d 473 (Fla. 1993).
     \55\Id. at 479.
     \56\Id. (Barkett, J., dissenting).
     \57\Id. at 480, citing Penry v. Lynaugh, 492 U.S. 302 (1989).
     \58\570 So.2d 257 (Fla. 1990).
     \59\564 So.2d 1060 (Fla. 1990).
     \60\Id. at 1065 (Barkett, J., concurring). This is an example 
     of how the label attached to an opinion written by a single 
     justice can be very misleading. Here, Barkett agreed with the 
     conviction but disagreed with the sentence, yet her separate 
     opinion is labeled a ``concurrence.''
     \61\538 So.2d 829 (Fla. 1989).
     \62\Id. at 832 (Barkett, J., concurring in part and 
     dissenting in part). This opinion, in which Barkett agrees 
     with the conviction but not the sentence, is labeled a 
     partial concurrence/dissent. As noted above, her opinion in 
     Porter, in which she also agreed with the conviction but not 
     the sentence, is labeled a concurrence.
     \63\543 So.2d 1244 (Fla. 1989).
     \64\588 So.2d 983 (Fla. 1991).
     \65\581 So.2d 121 (Fla. 1991).
     \66\559 So.2d 1097 (Fla. 1990).
     \67\510 S.2d 881 (Fla. 1987).
     \68\The 14th Amendment to the U.S. Constitution reads in part 
     that ``nor shall any State deprive any person of life, 
     liberty, or property, without due process of law.'' State 
     constitutions have a parallel provision.
     \69\Ferguson v. Skrupa, 372 U.S. 726, 731 (1963).
     \70\United States v. Carolene Products Co., 304 U.S. 144, 152 
     (1938).
     \71\See Williamson v. Lee Optical Co., 348 U.S. 483 (1955).
     \72\489 So.2d 1125 (Fla. 1986).
     \73\She also held the provision violated the Florida 
     Constitution.
     \74\619 So.2d 231 (Fla. 1993).
     \75\The 14th Amendment to the U.S. Constitution states in 
     part that ``nor shall any State . . . deny to any person 
     within its jurisdiction the equal protection of the laws.''
     \76\FCC v. Beach Communications, 113 S.Ct. 2096, 2101-02 
     (1993) (emphasis added).
     \77\Nordlinger v. Hahn, 112 S.Ct. 2326, 2331-32 (1992).
     \78\Id. at 2332.
     \79\618 So.2d 189 (Fla. 1993).
     \80\Florida Statutes Sec. 766.203-206.
     \81\Florida Statutes Sec. 766.207.
     \82\Florida Statutes Sec. 766.207(7).
     \83\Justice Kogan recused himself from this case.
     \84\563 So2d 64 (Fla. 1990).
     \85\Vance v. Bradley, 440 U.S. 93,108 (1979).
     \86\Black's Law Dictionary, Fifth Edition (St. Paul: West 
     Publishing Co., 1979), at 1130.
     \87\No. 76,639 (Fla. April 1, 1993).
     \88\McKleskey v. Kemp, 481 U.S. 279 (1987).
     \89\518 So.2d 903 (Fla. 1987).
     \90\Id. at 908 (Barkett, J., dissenting).
     \91\601 So.2d 453 (Fla. 1992).
     \92\Associated Press, ``Judge Says Hitler Could Avoid Death 
     Penalty in Florida,'' Tallahassee Democrat, May 29, 1992.
     \93\See Morgan, ``State High Court's Rulings Called an Insult 
     to Police,'' St. Petersburg Times, January 23, 1990.
     \94\See O'Neal, ``Barkett Camp Disputes Foes' Claims,'' 
     Orlando Senitel, September 30, 1992, at B-5.
     \95\Lamar, ``Lamar Responds to Editorial on Rosemary 
     Barkett,'' Orlando Sentinel, September 10, 1992, at A-15.
     \96\Associated Press, ``Florida Bar Endorses Justice Barkett, 
     But 21 Percent Oppose Her,'' Miami Herald, September 12, 
     1992, at 5B.
     \97\Halldin & Reardon, ``Barkett's Support Lags Behind Others 
     in Poll of Lawyers,'' Tamp Tribune, September 12, 1992, at 1.
     \98\Rado, ``Barkett's Support in Bar Poll is Low,'' Times, 
     September 12, 1992, at 6B.
     \99\Congressional Record, March 22, 1994, at S3383.
     \100\See Gigot, ``Crime Choice: She's No Hanging Judge,'' 
     Wall Street Journal, October 15, 1993.
     \101\``Unjust Criticism of a Chief Justice,'' Wall Street 
     Journal, November 9, 1993, at A19 (emphasis added).
     \102\Dahl, ``Florida's Ex-Nun Chief Justice Challenged as 
     Appeals Choice,'' Washington Times, October 19, 1993, at A4 
     (emphasis added).
     \103\Barkett, ``Conservatives Tear a Page from Liberals' 
     Book, `Borking' Clinton's Nominees for Legal Positions,'' 
     Wall Street Journal, November 29, 1993, at A14 (emphasis 
     added).
     \104\See, e.g., Stewart v. State, 549 So.2d 171,177 (Fla. 
     1989), where Barkett's opinion states: ``I concur in the 
     conviction, but dissent as to the sentence.'' Her supporters 
     count this as a ``vote for the death penalty.''
     \105\See, e.g., Kennedy v. Wainwright, 483 So.2d 424,428 
     (Fla. 1986) (Barkett ``would grant the application for stay 
     of execution''); Kight v. Dugger, 574 So.2d 1066, 1073 (Fla. 
     1990) (Barkett wrote that one of the killer's claims 
     ``requires an evidentiary hearing''); Thomas v. Wainwright, 
     486 So.2d 574, 577 (Fla. 1986) (Barkett ``would grant the 
     motion for stay of execution''); Adams v. Wainwright, 484 
     So.2d 1211, 1213 (Fla. 1986).
     \106\See, e.g., Kight v. Dugger, 574 So.2d 1066, 1073 (Fla. 
     1990).
     \107\See, e.g., White v. State, 565 So.2d 322, 323 (Fla. 
     1990) (Barkett ``would grant a stay of execution and 
     relief''); Hamblen v. State, 565 So.2d 320, 322 (Fla. 1990) 
     (Barkett ``would grant a stay of execution and relief'').
     \108\See, e.g., Breedlove v. Singletary, 595 So.2d 9 (Fla. 
     1992) (court denied habeas corpus relief but granted post-
     conviction relief and stay of execution); Smith v. Dugger, 
     565 So.2d 1293 (Fla. 1990), (court denied habeas corpus 
     relief but granted stay of execution).
     \109\See, e.g., Way v. Dugger, 568 So.2d 1263 (Fla. 1990) 
     (court denied post-conviction relief but granted habeas 
     relief, vacated death sentence and remanded for new 
     sentencing hearing).
     \110\See, e.g., Harich v. Dugger, 542 So.2d 980 (Fla. 1989) 
     (court granted post-conviction relief and remanded the case 
     for an evidentiary hearing); Scott v. Dugger, 604 So.2d 465 
     (Fla. 1992).
     \111\See, e.g., Heiney v. Dugger, 558 So.2d 398, 400 (Fla. 
     1990); O'Callaghan v. State, 542 So.2d 1324, 1327 (Fla. 
     1989).
     \112\See, e.g., Cherry v. State, 544 So.2d 184 (Fla. 1989).
     \113\See, e.g., Thomas v. State, 486 So.2d 577, 578 (Fla. 
     1986) (Barkett dissented from decision to deny post-
     conviction relief and stay of execution).
     \114\See, e.g., Sims v. Singletary, 622 So.2d 980 (Fla. 
     1993); Johnston v. Dugger, 583 So.2d 657 (Fla. 1991); 
     Mitchell v. Dugger, 595 So.2d 942 (Fla. 1992); Ponticelli v. 
     State, 618 So.2d 154 (Fla. 1993); Happ v. State, 618 So.2d 
     205 (Fla. 1993); Breedlove V. State, 595 So.2d 8 (Fla. 1992); 
     Davis v. State, 620 So.2d 152 (Fla. 1993); Medina v. State, 
     586 So.2d 317 (Fla. 1991); Kelley v. State, 597 So.2d 262 
     (Fla. 1992).
     \115\See, e.g., Turner v. Dugger, 614 So.2d 1075 (Fla. 1992) 
     (Barkett on result only); Henderson v. Singletary, 617 So.2d 
     313 (Fla. 1993) second motion for post-conviction relief, 
     Barkett on result only); Parker v. Dugger, 550 So.2d 459, 461 
     (Fla. 1989) (second motion for post-conviction relief, first 
     motion for habeas); Scott v. Dugger, 550 So.2d 459, 461 (Fla. 
     1989) (second motion for post-conviction relief, first motion 
     for habeas); Scott v. Dugger, 604 So.2d 465 (Fla. 1992); 
     Puiatti v. Dugger, 589 So.2d 231 (Fla. 1991); Mendyk v. 
     State, 592 So.2d 1076 (Fla. 1992); Jennings v. State, 583 
     So.2d 316 (Fla. 1991); Johnston v. Dugger, 583 So.2d 657 
     (Fla. 1991) (Barkett on result only); Koon v. Dugger, 619 
     So.2d 246 (Fla. 1993); Kight v. Dugger, 574 So.2d 1066, 1073 
     (Fla. 1990).
     \116\Congressional Record, March 22, 1994, at S3394.
     \117\ 543 So.2d 1244 (Fla. 1989).
     \118\See, e.g. Gaskin v. State, 615 So.2d 679 (Fla. 1993); 
     Mills v. Singletary, 606 So.2d 623 (Fla. 1992).
     \119\527 So.2d 800 (Fla. 1988).
     \120\See, e.g., Clark v. State, 613 So.2d 412, 415 (Fla. 
     1992); Henry v. State, 613 So.2d 429, 434 (Fla. 1992); 
     Durocher v. State, 604 So.2d 810, 812 (Fla. 1992); Henry v. 
     State, 586 So.2d 1033, 1038 (Fla. 1991).
     \121\See Thompson v. Oklahoma, 487 U.S. 815 (1988). Not 
     surprisingly, Barkett insists in her lone dissent in LeCroy 
     that the Supreme Court has ``left this question open.''
     \122\See Miller v. California, 413 U.S. 15 (1973).
     \123\Congressional Record, March 22, 1994, at S3394.
     \124\Congressional Record, February 24, 1994, at S1835.
     \125\Id.
     \126\Id. at S1834.
     \127\Roman, ``Judicial Nominee's Missing Words Hit,'' 
     Washington Times, February 26, 1994, at A5.
                                  ____


               [From the Washington Times, Oct. 15, 1993]

                   Rosemary Barkett: Clinton Nominee

                          (By Samuel Francis)

       In his weekly radio address to the nation last week, 
     President Clinton chose for his theme the subject of what a 
     tough guy he is on crime. He seized the opportunity to plug 
     his crime bill now before Congress and struck postures on the 
     need to catch criminals, convict criminals, and--sometimes--
     kill criminals.
       ``This bill,'' preached the president, ``will help to 
     restore a system where those who commit crimes are caught, 
     those who are found guilty are convicted, those who are 
     punished--sometimes by imposition of the death penalty for 
     especially serious crimes.''
       Well, no it won't. Whatever the merits of Mr. Clinton's 
     crime bill, it will have no effect whatsoever on catching, 
     convicting and punishing criminals. To do that, you have to 
     have tough judges, and at the same time Mr. Clinton is 
     blustering about his own toughness on crooks, he's sending to 
     the federal bench some of the sorriest substitutes for judges 
     since Joseph Stalin held the Moscow Show Trials.
       One recent Clinton judicial appointment is Rosemary 
     Barkett, now a justice of the Florida Supreme Court, whose 
     name the administration sent up to the Senate Judiciary 
     Committee last month. Her hearings for a seat on the 11th 
     U.S. Circuit Court of Appeals haven't been scheduled yet, and 
     if Mr. Clinton were wise, the hearings would never take 
     place. Judge Barkett will be to the Clinton administration 
     what--Lani Guinier was to the Clinton administration.
       In 1992, Judge Barkett joined in a dissent to a Florida 
     capital punishment case that involved one of the most brutal 
     racial murders in that state's history. The defendant, Jacob 
     Dougan, was the leader of a group styling itself the Black 
     Liberation Army, the ``apparent sole purpose of which'' the 
     trial judge described as being to ``indiscriminately kill 
     white people and start a revolution and a race war.''
       In 1974 Dougan and four of his liberators kidnapped an 18-
     year-old white man at random, took him to a trash dump and 
     stabbed him repeatedly. When their victim pleaded for his 
     life, Dougan himself shot him twice. Dougan then made tape 
     recordings of his boasting of the murder and sent one to his 
     victim's mother. ``Ah, it was beautiful,'' exulted the killer 
     on the tape, ``You should have seen it. Ah, I enjoyed every 
     minute of it. I loved watching the blood gush from his 
     eyes.''
       After 18 years in what passes for a criminal justice system 
     in this country, Dougan's death sentence was affirmed by the 
     state supreme court, but not without one last gurgle from 
     Judge Barkett about love and understanding. ``This case,'' 
     reads the dissenting opinion in which she joined, ``is not 
     simply a homicide case, it is also a social awareness case.''
       Dougan, you see, thought he was doing the right thing when 
     he decided to slaughter white people, and that makes 
     different. ``His frustrations, his anger, and his symbolic 
     obsession of injustice overcame reason,'' Judge Barkett's 
     dissent blathers. ``The victim was a symbolic representation 
     of the class causing the perceived injustices.'' Dougan 
     shouldn't be executed, she concluded.
       In other words, Judge Barkett endorsed the quackery that 
     committing murder as a response to purported injustices, even 
     if the victim himself had nothing to do with them, justifies 
     a lighter sentence. That kind of reasoning is consistent with 
     some of her other dissents as well.
       In yet another death penalty dissent in 1991. Judge Barkett 
     concluded that the killer, one Jerry Wickham, didn't merit 
     death because at the time of the crime, he was a ``mentally 
     deficient, socially maladjusted individual.'' Wickham and his 
     family were about to run out of gas, so he robbed and killed 
     a passing motorist, taking $4.05 from his pockets.
       ``If the death penalty is supposed to be reserved for the 
     most heinous of crimes and the most culpable of murderers,'' 
     Judge Barkett herself wrote in dissent from the court's 
     affirmation of the death sentence, ``Jerry Wickham does not 
     seem to qualify.'' Your have to wonder. Just what sort of 
     crime, in this woman's learned opinion, would be sufficiently 
     heinous to qualify for a two minute snuggle with Old Sparky?
       There are several other such cases of Judge Barkett's 
     dissents in death penalty cases, almost always on the most 
     specious and subjective grounds. It's neither the law nor 
     justice that guides her gavel but what ever feelings and 
     heartthrobs flutter in her attic that day.
       If Judge Barkett makes it through the Senate to a federal 
     judgeship, she'll be within easy reach of a future seat on 
     the U.S. Supreme Court, whence she could shoot her judicial 
     poison into the jugular of the Constitution itself. Mr. 
     Clinton knows that, so when he tells you how tough on crime 
     he is, he's simply lying. With generals like Judge Barkett in 
     charge of his war on crime, you can place your bets on the 
     enemy.

  Mr. HATCH. Mr. President, I yield 6 minutes to the distinguished 
Senator from Delaware.
  The PRESIDING OFFICER (Mr. Kerrey). The Senator from Delaware is 
recognized for 6 minutes.
  Mr. ROTH. Mr. President, among the most serious responsibilities that 
the constitution entrusts to those of us in this body is to provide our 
advice and consent regarding nominees to the Federal Bench. Every 
nominee, if confirmed, will potentially have a broadbased lifetime 
influence on the law. While we should be prepared to defer to the 
President's judgment in most cases, these nominees must be reviewed 
with careful scrutiny.
  Based upon her judicial record and her testimony before the Judiciary 
Committee, I must oppose the confirmation of Florida Chief Justice 
Rosemary Barkett to be a judge of the U.S. Court of Appeals for the 
Eleventh Circuit. In a number of cases, Chief Justice Barkett has gone 
well beyond the proper judicial role into that more properly occupied 
by the legislature, ignoring precedent and well-settled principles of 
law in the process.
  While I am troubled, for example, by Chief Justice Barkett's misuse 
of the Federal equal protection clause and of Federal substantive due 
process, which the nominee herself testified as being ``careless,'' I 
am most disturbed by her philosophy regarding criminal law issues. At a 
time when violent crime has reached epidemic proportions throughout our 
Nation, I do not believe the American people will abide us confirming a 
nominee who has consistently and mistakenly accorded greater concern to 
those who break the law than to their victims or to those who enforce 
the law.
  Let me provide some examples of Justice Barkett's troubling criminal 
law decisions. In the case of Stall versus State, Justice Barkett 
joined a dissent striking down a State obscenity statute, stating that, 
``A basic legal problem with the criminalization of obscenity is that 
it cannot be defined.'' That statement is contradicted by the U.S. 
Supreme Court's landmark obscenity decision in Miller versus 
California, which the nominee failed to even mention in her dissent.
  Another important area of criminal law in which I believe Chief 
Justice Barkett goes beyond the acceptable limits of a judge's 
responsibility to fairly apply the law concerns death penalty cases.
  One of the most disturbing of Chief Justice Barkett's opinions was 
the dissent she joined in the death penalty case of Dougan versus 
State. This case has been much discussed during the course of this 
nomination process. Briefly, this involved a grotesque murder of a 
hitchiker, following which the killer sent tapes bragging about the 
murder to the victim's mother. The nominee joined a very troubling 
dissent that would have reduced the death penalty to life imprisonment, 
with eligibility for parole in 25 years. The dissent compared this 
cold-blooded, premeditated murder--which the evidence indicated was 
motivated by racial hatred--with the emotional conditions of a 
disenchanted marriage that results in domestic homicide. That was the 
basis on which she voted to not impose the death penalty. I believe 
this is an unacceptable standard for judges to use. We rely on judges 
to apply the law evenly and to objectively apply penalties based on the 
facts of the case. To expect less is to badly distort our criminal 
justice system.
  There are many other criminals cases which could be cited in which 
this nominee has shown an untoward concern for criminal defendants and 
only perfunctory concern for criminal victims.
  Judges have the ability to either enforce or reverse the efforts of 
legislators, police and prosecutors in fighting our Nation's violent 
crime problem. It does little good for Congress to pass tough crime 
bills if our efforts are thwarted by judges motivated more by sympathy 
for criminals than by an understanding of the fear honest citizens face 
each day on the streets of our Nation. What kind of message is the 
administration sending when it talks tough on crime in town meetings 
but sends up judicial nominees who are squishy soft on crime? I would 
urge my colleagues to reject this nomination.
  Mr. President, I yield the floor.
  Mr. HATCH. Mr. President, I yield 9 minutes to the distinguished 
Senator from Iowa.
  The PRESIDING OFFICER. The Senator from Iowa, Mr. Grassley, is 
recognized for 9 minutes.
  Mr. GRASSLEY. Mr. President, I thank Senator Hatch for his leadership 
on this matter and taking the time to make sure that this issue is 
fully discussed. This nomination is important from the standpoint of 
the signal that it sends about the real predilection of this 
administration on judicial appointments. It is quite contrary to the 
direction that they want us to believe that they are taking, of being 
tough on crime. That aspect of this debate is as important as the 
personal qualifications of their nominee.
  So because of the importance of this nominee, as well as very 
substantive reasons for disagreeing with this nominee's qualifications 
to be on the eleventh circuit court of appeals, I rise to talk for a 
few moments about this nomination, and to say why I oppose Justice 
Rosemary Barkett for the U.S. court of appeals for the eleventh 
circuit.
  When the Judiciary Committee considered this nomination--that was 
just last month--I voted against her. I want to explain the reasons why 
I will vote against her again today when the full Senate votes.
  First, I share the concerns that many of my colleagues have expressed 
regarding her theories on criminal law. Many of her decisions are quite 
inconsistent with President Clinton's stated stance of being tough on 
crime and wanting to do everything he can to fight crime. This nominee 
substitutes her own subjective sense of fairness, often finding 
defendants who have committed outrageously violent murders to be 
victims of their own circumstances.
  Second, in my discussions with her, she conceded that she had made 
mistakes in some of her opinions, or that they were ``inartfully 
drafted.'' Those last two words are her words.
  Mr. President, we must demand of people who are being placed on the 
judiciary, particularly on the highest courts of this land, the 
highest, and most rigorous standards.
  There can be no place for a judge on this court, or any court, who 
says that she ``mistakenly'' cited the U.S. Constitution in an 
obscenity case as a basis for her own reasoning that there was no 
standard under which obscenity can be defined. In making that 
statement, she ignored the Miller test and again applied her own 
standard of fairness.
  Third, I have very serious doubts about her impartiality. In a 
reapportionment case, among many that I could cite, she asserted that 
she would choose a specific reapportionment plan just because it was 
submitted by a particular party--the NAACP. In her words: ``because it 
is the organization that has traditionally represented the position 
that advances all minority interests.''
  Will she decide other cases on the basis of who the litigant is 
instead of what the law is? And in the Echarte case, she wrote a 
dissent adopting the position of the Florida Trial Lawyers, stating 
that a cap on noneconomic damages in medical malpractice cases was 
unconstitutional. It just happens that that group had just named an 
award for her. She presented the award at the Florida Trial Lawyers 
Annual Dinner.
  Let us look at the ABA code of judicial conduct, canon 2, in regard 
to this. It states:

       A judge should not lend the prestige of her office to 
     advance the private interests of others, nor should she 
     convey or permit others to convey the impression that they 
     are in a special position to influence her.

  Then in canon 3, the ABA code states that:

       A judge should disqualify herself in a proceeding in which 
     her impartiality might reasonably be questioned.

  The Judicial Conference has interpreted these canons and applied them 
in situations involving Federal judges. There is a 1975 advisory 
opinion which states the following:

       Judges who have achieved a preeminence such as to prompt 
     public recognition [as in a public testimonial or award] 
     should ordinarily be able to accept such honors.

  It goes on to say:

       Before accepting such recognition, however, a judge should 
     take certain factors into consideration.
       Notwithstanding the spirit in which the award was 
     proffered, it should not be accepted from an organization 
     whose public image embodies a clearly defined point of view 
     on controversial legal, social, or political issues. Neither 
     should [it] be accepted from an organization which is apt to 
     be before the court as a litigant.

  Canon 5 cautions against a judge being a speaker or guest of honor at 
an organization's fundraising events. The canon states:

       In addition to the nature of the organization involved, the 
     judge should be concerned that his presence is not merely a 
     device to promote publicity and the sale of tickets.

  I am not familiar enough with the trial lawyers' dinner in this 
specific case to know if it was in fact a fundraiser. But I do not 
think there can be any disagreement about the legal and political 
positions of the trial lawyers, and they were before the Florida 
Supreme Court in the Echarte case at the time Justice Barkett lent her 
name to the award.
  For these reasons, I cannot support elevating Justice Barkett to the 
eleventh circuit.
  I yield the floor and the remainder of the time allotted to me.
  Mr. HATCH. Mr. President, how much time does the distinguished 
Senator from Idaho need?
  Mr. CRAIG. Five minutes.
  Mr. HATCH. I yield 5 minutes to the Senator from Idaho [Mr. Craig].
  The PRESIDING OFFICER. The Senator from Idaho [Mr. Craig], is 
recognized.
  Mr. CRAIG. Mr. President, I thank my colleague from Utah, the ranking 
senior Republican on the Judiciary Committee, for yielding me time to 
speak in relation to the nomination of Chief Justice Rosemary Barkett 
to a seat on the U.S. court of appeals of the eleventh circuit.
  Some today have called literally any opposition to this confirmation 
politically motivated. However, as my colleagues know, in the past I 
have voted to confirm even when political beliefs of the nominee 
differed radically from my own.
  Frankly, not all of my advisers have thought that wise. In fact, some 
of my constituents would prefer me to make political beliefs a litmus 
test for judicial nominees. My respect for the Constitution, though, 
frankly, Mr. President, prohibits me from doing that.
  If the President's powers to nominate a judge means anything, it must 
mean the power to nominate one of the President's own philosophical 
bent or political views. But, just as important, if the Senate's power 
to confirm means anything, it must mean the responsibility to disagree 
with the President when the nominee is unqualified for reasons other 
than political beliefs.
  My decision on a judicial nominee is based on my evaluation of his or 
her character, competence, and judicial philosophy; that is, how the 
nominee views the duty of the court and its scope and authority. It is 
my strong belief that members of the Federal judiciary should neither 
rubberstamp legislative decisions nor overreach to act as a substitute 
legislator.
  In this case, character is not in question. On the contrary, there is 
much to admire about a nominee who overcame language and cultural 
barriers to become the first woman to serve on the Florida Supreme 
Court, whose background includes service as a nun and a school teacher, 
who is a highly regarded and awarded achiever for the Florida bar.
  As to competence, I know this nominee received the American Bar 
Association's highest rating. Even so, I am aware that some members of 
the legal profession believe Justice Barkett's very unusual handling of 
constitutional and other issues puts her competency in reasonable 
question. While that may be a legitimate and important subject to 
debate among lawyers and judges trained in legal theory, I am not going 
to attempt to enter into that scholarly debate--except to note in 
passing that competence does not appear to be a question in this 
instance.
  Some of those unusual opinions do, however, concern me because of 
what they reveal about the nominee's judicial philosophy. In short, 
this judge does not appear to be constrained by constitutional limits 
or on judicial decisionmaking, and instead has given every indication 
that she is likely to pursue a political activist agenda if appointed 
to a position on the Federal bench.
  An example that I found particularly striking was her opinion on the 
LeCroy case. The perpetrator in the case was 17 years and 10 months old 
at the time of the crime. The sentencing judge found that this was no 
constitutional bar in imposing a death penalty. Although he gave 
careful consideration to the age factor, he found the individual in 
question was mentally and emotionally mature enough to have realized 
the difference between right and wrong in the brutal killing of another 
human being. Furthermore, it was a longstanding principle of Florida 
law that a child of any age charged with a capital crime must be tried 
and handled in every respect as if he or she were an adult.
  The Florida Supreme Court voted 6 to 1 to affirm the death penalty, 
with Judge Barkett the lone dissenter. Remarkably, her view was that 
imposing the death penalty violated both the Florida law and the eighth 
amendment to the U.S. Constitution, a position the U.S. Supreme Court 
later rejected.
  This Senator was one of the majority in this body who voted 6 months 
ago to table a proposal banning the death penalty for juveniles. I can 
understand the discomfort some have with this issue, and I can even 
understand why Justice Barkett may have personally abhorred the 
decision of the sentencing judge. However, that does not justify 
ignoring State law forcing Federal jurisprudence to conform to her own 
sociological theory.
  There are clearly other issues that question whether this person, if 
properly placed, will stay within the bounds of the Constitution or 
move on as she has throughout her career on her political philosophy in 
rendering decisions based on that. It is for that reason that I stand 
in opposition to her confirmation and will vote accordingly.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. I yield 5 minutes to the minority whip.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. SIMPSON. Thank you, Mr. President. I want to make a very brief 
comment about this nomination. Mr. President, Justice Barkett and I had 
a long visit in my office to discuss some of her cases, as well as her 
background and qualifications for the circuit court of appeals position 
to which she has been nominated. It was a very good visit. I was very 
impressed by her as a person, and I enjoyed very much my time with her.

  We discussed a few of Justice Barkett's more controversial cases, and 
she explained her position and the reasons for her decisions or 
dissents. I thought that was very important.
  Mr. President, in most cases she attributed the controversy over her 
decisions to the critics lack of understanding of ``capital punishment 
jurisprudence.'' Justice Barkett pointed out that the Supreme Court 
requires justice's ``to look behind every case--considering aggravating 
factors as well as mitigating factors.''
  That is indeed the law of the land, but I do not agree with Justice 
Barkett's application of that law in certain cases during the years she 
has served on the Supreme Court of Florida.
  Mr. President, I want to point out here that Justice Barkett 
obviously has the legal and judicial experience for the Federal bench, 
and I have no doubt that her judicial temperament is fully acceptable 
and appropriate.
  However, I am very disturbed when she finds it necessary during her 
hearing before the Judiciary Committee to retract or explain that she 
mis-spoke--``mis-wrote'' actually would be the term--when she cited the 
U.S. Constitution as the basis for a decision she authored in a 
particular case. That simply should not occur.
  I am also concerned that Justice Barkett may too quickly, and too 
often, see the criminal as a ``victim of society,'' and argue that the 
criminal's illegal activity should somehow be mitigated because of the 
perceived injustices that he or she has suffered at the hands of our 
society, a convenient scapegoat in our times.
  I do not believe that the courts should somehow attempt to excuse 
criminal activity by placing a share of responsibility for heinous 
crimes on society.
  I am also concerned that Justice Barkett seems, in some instances at 
least, to stretch far in efforts to reach a position that I fear may 
represent her personal views more than it represents existing law and 
precedent.
  That constitutes judicial activism, one of the most important 
disqualifications for a Federal judgeship, as far as I am concerned.
  Mr. President, I firmly believe that the President has not only the 
duty, but also the right, to choose nominees to the Federal judiciary 
who share his views. We must expect that he will nominate persons who 
share his philosophy and ideology.
  And when the nominee is qualified by education, experience and 
judicial temperament, he or she should not be opposed because I, or any 
other senator, disagree with the ideology of the nominee.
  However, the ideology and the social values of the nominee must be 
within the ``mainstream'' of American views and values.
  At a time when crime, particularly violent crime, is viewed by the 
American public as the most serious problem facing our country, and at 
a time when the Congress is debating legislation to deal in a firm and 
serious way with violent crime, and at a time when the President of the 
United States is calling for congressional action to address violent 
crime, I believe we must look closely at the thinking and the social 
values of judicial nominees who will be dealing with this very serious 
problem.
  I have reluctantly decided that Justice Barkett's views of the 
criminal and the causes of criminal activity, and her record on and the 
application of the criminal laws and sentencing are not within the 
mainstream of American thinking on this issue.
  This, combined with Justice Barkett's tendency toward judicial 
activism, has brought me to the conclusion that I must vote against the 
confirmation of Justice Barkett to the U.S. Court of Appeals.
  I thank the Chair, and I thank my colleague from Utah and commend him 
on his fine work as the ranking member of the Senate Judiciary 
Committee.
  I thank the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, I yield 15 minutes to the distinguished 
Senator from Mississippi.
  The PRESIDING OFFICER. The Senator from Mississippi is recognized.
  Mr. LOTT. Mr. President, I thank the distinguished Senator from Utah 
for yielding me this time. I am sorry I have not been able to be here 
for all of the discussion. But I do think this is a very important 
nomination, and it goes way beyond just this particular nomination to a 
circuit court.
  I rise in opposition to the nomination of Judge Rosemary Barkett, 
currently the chief justice of the Florida Supreme Court, to be judge 
on the U.S. circuit court for the eleventh circuit.
  Before I present my objections to this nomination, I want to talk 
briefly about the state of things in this country. Recently the issue 
of crime has overtaken the economy and, yes, even health care as the 
number one issue of Americans. There is a national sense of unease.
  I just spent 2 weeks back in my State, and I found that people have 
gone, when it comes to crime, from being concerned and worried and 
scared, to mad. They really do not understand the type of crime that we 
are having now--crack cocaine in our schools, shootings in our schools, 
children carrying guns in our schools, senseless, motiveless drive-by 
shootings, and they really are angry about it and they want some 
action.
  They know the Federal Government cannot totally control it, but they 
know the Federal Government has a role, they know the States have a 
role, and the local governments and, yes, the individuals in the 
communities have a responsibility.
  But the main thing they want is some results. The American people 
want to stop the mayhem they see on our streets, not only in our big 
cities but in the suburban areas and in rural areas. Crime is 
everywhere.
  We have an executive or Presidential commitment to crack down on 
crime. The President has been having some events just this week to 
emphasize his concern about crime, and many of the things he talks 
about that we need to do, certainly I agree with. I offered the 
amendment in the Senate last year for three strikes and you are out: 
commit three violent felonies, and you get life. And the President 
stood in the well of the House of Representatives in his State of the 
Union Address this year, and he endorsed that concept.
  Now we have Harvard lawyers and social reformers and others saying, 
oh, well, the three-strikes-and-you-are-out amendment, it might fill up 
our jails.
  The only thing I run into when I have spoken to different groups from 
New York City to Mississippi, is why do you give them three violent 
crimes?
  So it makes good sense, and the President has endorsed it. So, we 
have a Presidential resolve of sorts. We have a legislative resolve 
because the Senate passed a very comprehensive crime package last year. 
The other body is having some difficulty getting its act together 
passing little slithers of the crime package. But today they are trying 
to get a bigger package together. I hope they do not follow their usual 
rule, which has been to be soft on the criminal and not worried at all 
about the victim. That is what has been basically the crime legislation 
that has come out of the House over the past 20 years.
  But we do have movement in this legislative area and that is 
important.
  But Americans are very uneasy about the third branch of Government. A 
recent Gallup Poll showed 83 percent of Americans felt that the 
judicial system is not harsh enough--not harsh enough--on criminals.
  I do not want to put down the thousands of State and Federal judges 
who deal with wave after wave of criminal depravity every day. The 
American people appreciate it. It is a tough job. A lot of these judges 
do a wonderful job and they have innovative ideas for dealing with 
criminals and for trying to rehabilitate them where it may be possible. 
So you do not indict them all.
  But the problem with some judges is that they put their personal 
politics before the law, and the rights of society and the people 
upholding the law. There are judges who forget the first duty of 
Government is to protect life and property. There are judges in the 
Federal judiciary of this country who for the past 20 or 30 years have 
twisted the law and precedents to protect the thug, making the criminal 
a victim and leaving the real victim with no recourse.
  That went on for part of 1950's and 1960's and 1970's. In the 1980's, 
we started to slowly turn that around a little bit by getting, yes, if 
you will, strong law-enforcement lawyers and judges on the bench and 
moving them up the line.
  Judge Rosemary Barkett is an activist judge. She is one of those who 
has been worried about the criminal, sometimes appearing to forget 
about the victims. She has called criminals the victims of society. I 
have heard that somewhere before, usually in articles written by 
certain liberal groups and lawyers.
  Judge Barkett has written against curbs on obscenity and against 
curbs on unseemly public conduct. She backs organized labor instead of 
the rights of the working man or woman. And these are the reasons why I 
oppose her nomination to the U.S. Court of Appeals. I think she 
epitomizes, she is a perfect example of the problem with the Federal 
judiciary over the past 30 years, and she has indicated that time after 
time after time.
  Maybe she did go along with the death penalty sometime, but other 
times she dissented. I will not go over all the Florida cases that the 
Judiciary Committee has already looked at. Perhaps they have been 
mentioned on the floor.
  But I ask unanimous consent that a summary of Judge Barkett's 
questionable decisions be printed in the Record at the conclusion of my 
remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LOTT. Let me point out what Judge Barkett has said about 
criminals. In 1991, in the Wickam versus State case, Wickam shot a man 
in the back, chest, and head and stole $4.05 from the corpse. Can you 
believe that--kill a man for $4?
  The Florida Supreme Court voted to affirm the death sentence, but 
Judge Barkett dissented, blaming the ``milieu of violence'' that the 
killer grew up in. He had a rough life, therefore there were mitigating 
circumstances. Judge Barkett said the killer was ``mentally deficient'' 
and ``socially maladjusted''--thus, he should be spared.
  In the Dougan versus State case, 1992, the judge voted to overturn 
the death sentence of Jacob Dougan, who brutally murdered a teenager, 
and sent a tape describing the killing to the victim's mother.
  Now that is pretty heinous; worse than just about anything I ever 
heard of. You kill someone and then you send a tape of the killing to 
the victim's mother. Judge Barkett called the case a ``social awareness 
case'' and blamed the killing on ``discordant racial relations which 
have permeated our society.'' I wonder what the victim's mother would 
have called it.
  In the Hall versus State case in 1993, Hall and an accomplice raped, 
beat, and shot to death a woman who was 7 months pregnant. The Florida 
Supreme Court again affirmed the death penalty, but Judge Barkett 
dissented. She said the killer had had ``emotional deprivation'' in his 
life.
  In Hudson versus State, in 1989, Hudson broke into his former 
girlfriend's house, killed her roommate when the roommate surprised 
him. The Florida Supreme court voted 6 to 1 to affirm the death 
penalty. Judge Barkett dissented, saying the fact that the killer had 
been ``surprised by the victim during his burglarizing of the home'' 
meant that he was ``unable, to a certain extent, to conform his 
behavior to the requirements of law.''

  That is a new one. How can burglarizing and murder ever confirm to 
``the requirements of the law?''
  There is more, but I will not take up that much more of the Senate's 
time. Judge Barkett was very evasive. And from what I saw during her 
hearing, Senators got very little information out of her. What we do 
know is what we have read of her opinions. This is a case where she has 
voted, she has ruled, she has written and her opinions are out of the 
mainstream.
  Over the past few weeks, I have been reading some of the comments of 
Senators here on the floor about possible Supreme Court nominees, and 
why they would not support this nominee or that nominee. One of the 
phrases I have heard is, he or she was out of the mainstream. Well, 
Judge Barkett is a nominee who is out of the mainstream.
  Maybe intentionally or absent-mindedly, the administration has sent 
to this legislative body judicial nominees from the lower courts whose 
political philosophy overrules their duties of impartiality in judging 
the law. The political philosophy of some of these nominees also has 
been contrary to what the administration has been saying about crime in 
this country. Some of these past, present, and future nominees, not 
bound by State or local precedent, might use their Federal offices to 
further erode the protections that Americans should enjoy by right.
  The right to walk the streets safely at night, the right to see 
justice done, the right of victims to have redress--all of these 
Americans are entitled to. Only a triple resolve of all three branches 
of Government--the executive, the legislative, and, yes, especially the 
judiciary--to make tough laws, to execute them faithfully, and to 
interpret them fairly--only this would ensure the security that we 
deserve in this country.
  And when I talk to citizens and when I talk to law enforcement 
people, they say, without the cooperation of the courts, what use is 
there? If policemen arrest a criminal and they get out on a 
technicality because the policemen did not read them their rights just 
so, because they did not have the proper arrest papers, and the 
criminals' appeals go on, people get tired of that. The only way to 
stop this is to change the law, or change the judges who are 
misinterpreting the law in my opinion.
  President Clinton talks a lot about security, and he should. Some of 
his judicial nominees, though, undermine his message and undermine the 
law. Judge Barkett is one of these nominees.
  I believe the President has a right to choose whomever he wants for a 
post, but the Senate has a right, under the Constitution, to reject 
that nominee. The President is not the only one that is responsible. We 
have a very high responsibility, especially when it comes to the 
judiciary.
  And I put a greater emphasis on the judiciary than I do other 
executive branch appointments. I really am going to give the President 
the benefit of the doubt on a Federal Maritime Commission appointment 
or an Assistant Secretary of Education, unless there is some really 
debilitating problems.
  But when it comes to the judiciary and lifetime appointment to these 
appellate courts, the Senate really needs to ask questions, and we need 
to pursue their record with great relish.
  If we say to the American people that we want to get tough on crime, 
we should not be confirming some of these nominees. Anyone who seeks to 
undermine the law and public order should not become a Federal judge.
  This is not about politics. This is not about partisan politics. This 
is about the safety and security of the American people.
  It is time for Senators to not only talk the talk but walk the walk. 
This vote is not about the nominee; it is about her record.
  The question for us today is, will our rhetoric match our actions? We 
talk tough on crime and yet if we let a judge go through confirmation 
with this long history of voting to let criminals off the death penalty 
and a whole myriad of other areas, then we are not going to pass 
muster.
  A vote for this nominee--for this philosophy--says to the American 
people that all we have to offer them is rhetoric, not judges who will 
help make the streets safe by rightly interpreting the law.
  Judge Barkett is an activist judge who will sabotage this Nation's 
fight against criminals. Let me say again that she has been the most 
antideath-penalty member of the Florida Supreme Court. She has a 
record. She believes antiobscenity laws are unconstitutional. She has 
struck down antiloitering laws used against drug-dealing and 
prostitution.
  Judge Barkett believes cold-blooded murderers are victims of society, 
and has voted to restrict police powers.
  Tell me, is this a judge who will be tough on crime? Obviously, no. 
From now on, the standard judicial nominees will have to meet is 
whether they have been tough on crime. I think the American people are 
demanding that.
  If these nominees have not been tough on crime, then they should not 
be confirmed. Judge Barkett has been soft on criminals in many, many 
instances.
  Oh, perhaps you could say she voted for the death penalty here or 
there. But in many, many instances she voted against it. In many 
instances, she voted what most people would say were soft-on-crime 
positions, ``Because of society.''
  So I urge my colleagues to vote against her confirmation.
  I yield the floor.

                               Exhibit 1

      Memorandum: Confirmation Hearings on Judge Rosemary Barkett

       President Clinton has nominated Rosemary Barkett, currently 
     chief justice of the Supreme Court of Florida, to the U.S. 
     Court of Appeals for the 11th Circuit (FL, GA, AL). Her 
     hearing before the Judiciary Committee begins Thursday, 
     February 3.


              I. BARKETT BLAMES EVERYONE BUT THE CRIMINAL

       DOUGAN v. State (1992). Barkett voted to overturn the death 
     sentence of Jacob Dougan, the leader of the Black Liberation 
     Army who slaughtered a teenager and sent a tape describing 
     the killing to the victim's mother. The court voted 4-3 to 
     affirm the death sentence. Barkett joined an opinion saying 
     that the case was ``a social awareness case. * * * The victim 
     was a symbolic representation of the class causing the 
     perceived [racial] injustice.'' Barkett blamed the killing on 
     ``discordant racial relations which have permeated our 
     society'' and found ``redeeming values'' in the killer that 
     meant the death penalty was inappropriate.
       Wickham v. State (1991). Wickham shot a man in the back, 
     chest, and head, and robbed his corpse of $4.05. The court 
     voted 4-2 to affirm the death sentence. Barkett voted again 
     to spare the killer, this time blaming this murder on the 
     ``milieu of violence'' in which the killer grew up. Here, she 
     said the death penalty was inappropriate because the killer 
     was ``mentally deficient'' and ``socially maladjusted.''
       LeCroy v. State (1988). LeCroy was 17 years old when he 
     killed a man, robbed him, and killed the man's wife to 
     silence her as a witness. The trial judge found LeCroy 
     mature. The court voted 6-1 to affirm the death sentence. 
     Barkett alone voted to spare the killer, blaming all youth 
     crime on ``a failure of family, school, and the social 
     system.'' She said executing anyone under 18--no matter what 
     their crime--violates the U.S. Constitution.
       Hall v. State (1993). Hall and a companion raped, beat, and 
     shot to death a woman who was seven months pregnant. The 
     supreme court voted 5-2 to affirm the death sentence. Barkett 
     voted to spare the killer because he had an IQ of 60 and had 
     experienced ``emotional deprivation'' during his life.
       Porter v. State (1990). Porter stalked his former lover for 
     two days, and then murdered her and her new boyfriend. The 
     court voted 5-2 to affirm the death sentence. Barkett voted 
     to spare the killer. She said that this case arose from ``a 
     lovers' quarrel'' and that Porter was not capable of 
     premeditation because of his ``emotionally charged, 
     desperate, frustrated desire to meet with his former lover.''
       Hudson v. State (1989). Hudson broke into his former 
     girlfriend's home. Her roommate surprised him and he killed 
     her. The court voted 6-1 to affirm the death sentence. 
     Barkett alone voted to spare the killer. The fact that he had 
     been ``surprised by the victim during [his] burglarizing of 
     the home'' meant that he was ``unable, to a certain extent, 
     to conform his behavior to the requirements of the law.''
       Adams v. State (1989). Adams was convicted in 1978 of 
     murdering an 8-year-old girl with whom he tried, 
     unsuccessfully, to have sexual relations. State and federal 
     courts ruled nearly a dozen times against his attempts to 
     avoid the death penalty. The court finally voted 5-2 to again 
     affirm the sentence. Barkett voted to spare the killer and 
     thought he should have had more opportunity to present 
     evidence of ``learning problems'' while growing up.


              ii. barkett ties the hand of law enforcement

       Cross v. State (1990). With Cross' permission, detectives 
     searched her bag and found a round object wrapped in brown 
     tape, a common way of transporting drugs. They arrested her 
     and later found cocaine. Barkett said the search was illegal 
     and wanted a per se rule that an object must be an 
     ``inherently suspect item'' for probable cause to exist.
       Bostick v. State (1989). With Bostick's permission, police 
     searched his bag on a bus and found drugs. Barkett wrote the 
     opinion establishing a per se rule against police searching 
     for drugs on buses, even with permission. ``This is not 
     Hitler's Berlin, nor Stalin's Moscow, nor is it white 
     supremacist South Africa.'' The Supreme Court reversed her 6-
     3.


      iii. barkett opposed laws against obscenity and prostitution

       Stall v. State (1990). The court upheld Florida's anti-
     obscenity law. Barkett dissented: ``A basic legal problem 
     with the criminalization of obscenity is that it cannot be 
     defined.'' She joined an opinion recognizing a constitutional 
     right of access to entertainment and condemning anti-
     obscenity laws as vehicles ``for restricting individual 
     autonomy.''
       Wyche v. State (1993). The court upheld Wyche's conviction 
     for loitering for the purpose of prostitution. Barkett 
     dissented; her position would probably invalidate any 
     regulation of public behavior, including disorderly conduct.


                 iv. barkett opposes the right to work

       United Teacher of Dade v. Dade County School Board (1986). 
     Barkett joined a dissenting opinion holding that Florida 
     could not give bonuses to outstanding teachers because it 
     would infringe on the teachers' union's bargaining power. She 
     admitted this was a ``liberal construction'' of state law.
       Florida Bar re Amendment to Rule 2-9.3 (Legislative 
     Policies). Barkett joined in approving a rebate scheme that 
     denied procedural protections for members of the Florida Bar 
     who objected to use of their compulsory union dues for 
     political purposes. The U.S. Supreme Court has held that 
     these protections are constitutionally necessary.

  The PRESIDING OFFICER. Who yields time?
  Mr. LOTT. Mr. President, I suggest the absence of a quorum and I ask 
the time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. Mr. President, I ask unanimous consent that the vote on 
the confirmation of Rosemary Barkett to be U.S. circuit judge for the 
eleventh circuit court of appeals be set for 3:15 p.m.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. Mr. President, I suggest the absence of a quorum and ask 
that the time under the quorum call be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, some have suggested that the Foster case is 
not as broad as some of the critics say. I believe the distinguished 
Senator from Florida has made that suggestion.
  Let me just say this.
  Justice Barkett's partial dissent in the Foster case adopts an 
approach that is akin to the so-called Racial Justice Act that the 
Senate has repeatedly rejected, and rightly so. As I have pointed out, 
Justice Barkett's approach in Foster would effectively paralyze 
enforcement of the death penalty.
  Now, Senator Graham of Florida has defended Justice Barkett's Foster 
opinion. In particular, he has claimed that her approach was highly 
specific compared to that proposed by the so-called Racial Justice Act, 
which Senator Graham has opposed. Senator Graham attached to his 
remarks a purported copy of Justice Barkett's Foster opinion.
  Curiosly, for one reason or another, the copy of Justice Barkett's 
Foster opinion that is attached to Senator Graham's comments omits 
three key paragraphs from that opinion--paragraphs that conclusively 
rebut the contention that Justice Barkett's approach in that case is 
highly specific or indeed significantly different in any respect from 
the so-called Racial Justice Act. In particular, Justice Barkett 
asserts in these missing paragraphs:

       I believe that statistical evidence of discrimination in 
     capital sentencing should * * * establish a 
     violation of article I, section 2 of the Florida 
     Constitution. ``Statistical'' evidence should be construed 
     broadly to include not only historical analysis of the 
     disposition of first-degree murder cases in a particular 
     jurisdiction, but also other information that could suggest 
     discrimination, such as the resources devoted to the 
     prosecution of cases involving white victims as contrasted to 
     those involving minority victims, and the general conduct of 
     a state attorney's office, including hiring practices and the 
     use of racial epithets and jokes.

  So much for the claim that Justice Barkett's approach in Foster was 
limited to allegations of specific acts of racial discrimination.
  This is hardly the first time that the supporters of Justice Barkett 
have made false claims in her defense. Indeed, the strategy of her 
supporters--especially of the White House--appears to be one of 
misstatements and misdirection. This is not surprising, since a candid 
assessment of Justice Barkett's record shows that she is starkly at 
odds with the President's tough-on-crime rhetoric.
  The standard for reviewing judicial nominees must be less deferential 
than the standard for reviewing executive branch nominees.
  Federal judges have lifetime tenure and are unaccountable to the 
political branches.
  If the President nominates liberal activist judges, they will 
override the political branches and impose their own agenda in the 
guise of constitutional and statutory interpretation. The second point 
I would like to make here is the basic measure of any lower court 
nominee's fitness for the Federal bench is whether that nominee will 
faithfully apply Supreme Court precedent and will construe the 
Constitution and the Federal laws as they are written, or whether that 
nominee will instead attempt to impose his or her own policy or 
ideological preferences.
  In the constitutional arena, this standard has important application 
with regard, for example, to the equal protection and due process 
clauses, which, if misused, can become completely unconstrained tools 
of judicial activism.
  This standard is also particularly important in a broad array of 
criminal law matters. For example: Search-and-seizure law: The fourth 
amendment strikes a careful balance between the interests of the 
community in detecting crime and the interests of suspects in not being 
subjected to unreasonable searches and seizures. Overly expansive 
readings of search-and-seizure protections cripple the police battle 
against drug dealing and other crimes. Will the nominee be faithful to 
Supreme Court precedent in this area? Or will the nominee evade or 
misconstrue Supreme Court precedent and find new ways to hamstring the 
police?
  Maintaining community standards: The Constitution and Supreme Court 
cases leave local communities substantial leeway to combat such 
scourges as obscenity, drug dealing, and prostitution. Will the nominee 
respect the rights of communities to regulate these illegal activities? 
Or will the nominee twist the Constitution to interfere with 
communities' ability to protect themselves from these crimes?
  Holding criminals accountable: Criminals can and should be held full 
accountable for their crimes. Does the nominee recognize that society 
is victimized by criminals? Or does the nominee believe that the 
criminal is the victim of society?

  Death penalty. Will the nominee consistently apply Supreme Court 
precedent? Or will the nominee strain for unconvincing escapes from 
imposing the death penalty?
  Florida Chief Justice Rosemary Barkett, President Clinton's nominee 
to the important eleventh circuit seat, does not measure up to this 
minimal standard. Justice Barkett believes that a ``basic problem with 
the criminalization of obscenity is that it cannot be defined''--even 
though the Supreme Court has set forth in unmistakable terms how it can 
be defined. She believes that laws against obscenity ``run counter to 
every principle of notice and due process in our society.''
  That is important stuff. I do not see how anybody on this floor can 
misconstrue it.
  Justice Barkett has voted to strike down narrowly tailored 
antiloitering laws that are essential to community policing, including 
laws prohibiting loitering for the purposes of drug dealing and 
loitering for the purpose of prostitution.
  Justice Barkett has a pattern of unduly restrictive fourth amendment 
search and seizure decisions that would hamstring police in their 
battle against drugs. Two of her opinions have been reversed by the 
Supreme Court, another has been criticized, and two others have been 
dissents.
  Justice Barkett too often subscribes to criminal-as-victim-of-society 
rhetoric. This is illustrated by the extraordinary dissent she joined 
in the Dougan case, which involved an extremely vicious and heinous 
murder. Senators voting on this nomination should read cases like 
Dougan.
  While it is true that Justice Barkett has voted to enforce the death 
penalty on a substantial number of cases, she has clearly been the 
single most anti-death-penalty member of the Florida Supreme Court. 
Moreover, she has exhibited a clear tendency to strain for unconvincing 
escapes from the death penalty in numerous cases. She has also adopted 
a position--akin to the Racial Justice Act that the Senate has 
repeatedly rejected--that would virtually paralyze implementation of 
the death penalty unless it is imposed on a quota basis.
  Concerns over Justice Barkett's nomination for the Federal appellate 
bench extend beyond her criminal law record. Her constitutional 
decisionmaking reflects a clear failure to follow precedent. For 
example, she took the position in a dissent that a statutory cap on 
noneconomic damages in medical malpractice cases violates the Federal 
equal protection clause--a conclusion that simply ignored longstanding 
equal protection principles.
  Justice Barkett similarly misused the Federal equal protection clause 
and the Federal due process clause in other cases. Her record also 
raises a serious concern that she would be prone to impose her basic 
race and gender quotas.
  Certain actions that Justice Barkett has taken also raise certain 
questions about her impartiality and her adherence to the canons of 
judicial ethics. For example, in the medical malpractice case, she 
refused to recuse herself even though a trial lawyers group that had 
named an award after her was participating as an amicus--and then she 
voted with the trial lawyers. In a redistricting case, she stated that 
she would favor one plan not on its inherent merits but simply on the 
organization that had proposed it.
  Justice Barkett's supporters say that she will follow Supreme Court 
precedent, but the simple fact is that she has not followed Supreme 
Court precedent: She has not followed Supreme Court precedent on the 
equal protection clause. She has not followed Supreme Court precedent 
on the due process clause. She has not followed Supreme Court precedent 
on fourth amendment search and seizure law. She has not followed 
Supreme Court precedent on obscenity. She has not followed Supreme 
Court precedent on the death penalty. She has not followed Supreme 
Court precedent in all of these very important fundamental areas.
  This is an important thing. I think none of us want to go against 
somebody we personally like, we personally think is a good person, but 
in all honesty she has not followed the precedents in all of these 
areas, and it is a dangerous thing to trust her, suddenly, that she is 
going to get on the court and follow Supreme Court precedents.
  In all these other areas she has, instead, pursued a liberal judicial 
activist agenda, and there is every reason to believe that she will do 
so if confirmed to the eleventh circuit court of appeals.
  Mr. President, this is really important. We have at this time a 
President who is saying that he is going to be tough on crime; he is 
going to do everything he can to stop crime; he is challenging us up on 
Capitol Hill to provide him with his crime bill. I do not think the 
rhetoric matches the actions, while at the same time we have seen judge 
after judge up here who seems to be softer on crime than his rhetoric 
would imply, and this one in particular not only seems to be, she is, 
and that is one of the problems we have.
  Mr. President, I have to say that, again, this is a fine person. None 
of my remarks should have any bearing on that. I think she is a good 
person. I think she is well intentioned. But those are not the issues.
  The issues are, will she follow the law as it is written or is she 
going to use her own social and ideological preferences and enact those 
into laws as a supermajority legislator from the bench?
  Frankly, I have not seen many judges in my 18-year history that 
really meet that qualification of being a legislator from the bench or 
a judicial activist in the worst sense of that term any more than this 
one has. And so I have to vote against her.
  I understand that she will be confirmed here today. The fact is, I 
hope we do not have judges who have ignored the law as much as she has, 
come up here in the future.
  Mr. MITCHELL. Mr. President, I wish to state just briefly that I 
strongly support the pending nomination. This is an outstanding person, 
an outstanding jurist, an outstanding judge, and someone who will serve 
with distinction on the Federal court.
  Now, an argument has been made about the President appointing people 
who are soft on crime. That is a popular political slogan. Someone is 
soft on crime. What does that mean? Are we supposed to believe that 
someone who is serving as a judge tolerates crime, condones crime, 
likes crime? The answer is, of course, ``no'' to all of those.
  What it does do is to create what I believe to be a false impression, 
that somehow in America if you believe in the Constitution, if you 
believe in the Bill of Rights, and if you believe in the rights of 
individual freedom and the limitations on the power of the government, 
you are somehow soft on crime.
  Mr. President, I served as a prosecutor at the State level and at the 
Federal level, and I daresay I am probably responsible for more 
criminals going to prison than most other Senators and, perhaps, all 
combined.
  And I say to you that here in America we can enforce the law and we 
can be tough on criminals without ignoring constitutional rights of 
law-abiding Americans.
  It is a false choice to suggest that adherence to, commitment to, and 
a deep conviction in favor of the Bill of Rights, which preserves the 
liberties of individual Americans and limits the power of Government, 
somehow makes one soft on crime. How often we have heard this argument 
about technicalities being used to let criminals off. Frequently, those 
``technicalities'' are rights that are included in the Constitution, in 
the Bill of Rights.
  Mr. President, I want to say that the most eloquent, most concise, 
and most effective statement of the individual liberties of human 
beings that has ever been devised and written down is the American Bill 
of Rights, the first 10 amendments to the Constitution.
  They set forth in a very brief, yet eloquent, way the values and 
principles which motivated the men who wrote the Constitution and the 
Americans who founded this great land. And it was this: that Americans 
are free people. And in order to ensure their freedom and to provide 
the broadest measure of individual liberty, we will restrain the power 
of Government. And that Bill of Rights is not a technicality. It is the 
essence of what makes Americans free.
  And I think we ought to have judges who honor the Bill of Rights. I 
think we ought to have judges who recognize that we can be tough on 
crime, that we can prosecute criminals, that we can punish criminals 
without violating the individual liberties of law-abiding Americans.
  It is a false choice to think that we must choose one or the other. 
We do not have to. We can do both. And I think this kind of judge will 
do both.
  I encourage the Members of the Senate to vote for this nomination.
  I want to say that we are going to get a crime bill this year, a 
comprehensive crime control bill. And we are going to get it because of 
the leadership of President Clinton and Senator Biden, who is the 
chairman of the committee. And I thank Senator Hatch for the work he 
has done on that as well.
  We ought to do it in a way that meets both objectives--tough on crime 
and observing and adhering to and revering rights guaranteed to every 
American under our Constitution. They are not inconsistent. They both 
can be attained, and we should attain them.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Florida.
  Mr. GRAHAM. Mr. President, I yield such time as I might require.
  Mr. President, we have a unique responsibility today, the 
responsibility to place on one of the highest courts of the United 
States a person who will serve for the balance of her natural life. I 
am very honored to have the opportunity to urge my colleagues to vote 
for the confirmation of Rosemary Barkett to the eleventh circuit court 
of appeals.
  This is a person who, by virtue of her personal life experience, by 
virtue of her preparation and education, by virtue of her experience, 
is especially uniquely qualified to serve as a Federal appellate judge; 
the daughter of immigrants, an immigrant herself, a nun, a teacher, a 
private practitioner, a trial judge, an appellate judge, and now the 
Chief Justice of the Florida Supreme Court, a background, a wellspring 
of personal preparation, development and experience now being made 
available to the people of America.
  Those qualifications, Mr. President, are not just written on a resume 
on paper. They have been regularly, arduously, and consistently and 
affirmatively reviewed by the people of our State and now by the 
President of the United States of America.
  She has three times been recommended for appointment to the judicial 
positions in our State through a rigorous judicial selection process. 
She has three times been appointed by Governors of our State to the 
highest positions of judicial responsibility.
  She has received the support of the broadest possible range of the 
people of our State, including the major law enforcement and police 
agencies.
  Most significantly, when she was placed before the people of Florida 
for a vote as to whether she should be retained in her position as a 
justice of the Florida Supreme Court, when she was subjected to exactly 
the same types of charges that have been made on this floor today, 61 
percent of the people of Florida voted to retain this fine woman as a 
member of the Florida Supreme Court.
  I believe, Mr. President, that those repeated affirmative approvals 
of Rosemary Barkett indicate the respect in which she is held, the 
admiration and the confidence by those who know her best.
  Mr. President, I ask unanimous consent to submit for the Record a 
series of endorsements by organizations, law enforcement, legal and 
others, and editorial boards in support of the nomination of Rosemary 
Barkett for the eleventh circuit court of appeals.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  The Florida Bar,


                                      Office of the President,

                                         Miami, November 16, 1993.
     Re: The Honorable Rosemary Barkett.
     Sen. Joseph R. Biden, Jr.,
     Chair, Senate Judiciary Committee, Washington, DC.
       Dear Senator Biden: It is with pleasure that I forward to 
     you, on behalf of the Board of Governors of The Florida Bar, 
     a resolution in support of the nomination of Chief Justice 
     Rosemary Barkett by President William J. Clinton to serve as 
     Judge of the United States Circuit Court of Appeals for the 
     Eleventh Circuit. By this resolution, the Board of Governors 
     of The Florida Bar urges the United States Senate to confirm 
     Chief Justice Barkett's nomination. If I, or The Florida Bar, 
     can be of any further assistance to the United States Senate 
     in this regard, please do not hesitate to call.
           Sincerely yours,
                                                Patricia A. Seitz,
                                       President, The Florida Bar.
                                  ____


                               Resolution

     Whereas, Chief Justice Rosemary Barkett has served the legal 
     profession as a member of The Florida Bar for over 23 years;
     Whereas, Chief Justice Rosemary Barkett has always been an 
     example and an inspiration to others in the legal profession 
     to live up to the highest standards of ethics and 
     professionalism;
     Whereas, Chief Justice Rosemary Barkett, the first female 
     Supreme Court Justice in Florida, has served the judicial 
     branch with intelligence, wisdom and professional distinction 
     for 14 years;
     Whereas, Chief Justice Rosemary Barkett served as trial Judge 
     for five years, having been appointed to the Fifteenth 
     Judicial Circuit in 1979, appointed administrative judge of 
     the Fifteenth Circuit Civil Division in 1982, and elected 
     Chief Judge of the Fifteenth Judicial Circuit in 1983;
     Whereas, Chief Justice Rosemary Barkett has served as an 
     appellate judge for nearly nine years, having been appointed 
     to the Fourth District Court of Appeals in 1984, appointed 
     Justice on the Supreme Court of Florida in 1985 and elected 
     Chief Justice in 1992;
     Whereas, Chief Justice Rosemary Barkett was retained as 
     Justice of the Supreme Court of Florida by a majority vote of 
     the electorate in Florida in the merit retention election of 
     1992;
     Whereas, Chief Justice Rosemary Barkett has served the 
     justice system as a member of the American Judicature Society 
     Board of Directors, faculty member of the National Judicial 
     College, faculty member of the Florida Judicial College, and 
     holds seven honorary Doctorate of Laws degrees;
     It is, Therefore, Resolved, that Chief Justice Rosemary 
     Barkett is hereby congratulated and commended by the Board of 
     Governors of The Florida Bar upon her nomination by President 
     William J. Clinton to serve as Judge, United States Circuit 
     Court of Appeals for the Eleventh Circuit. The Board of 
     Governors urges her confirmation by the United States Senate 
     for that office.
       Dated, this 9th day of November, 1993.
     Patricia A. Seitz,
       President.
     John F. Harkness, Jr.,
       Executive Director.
                                  ____

                                                 December 7, 1993.
     Re: Nomination of Rosemary Barkett, Eleventh Circuit Court of 
         Appeals.

     Sen. Joseph Biden,
     Chairperson, Senate Judiciary Committee, Washington, DC.
       Dear Senator Biden: We, the undersigned, are all former 
     Presidents of The Florida Bar.
       The purpose of this letter is to advise you and your 
     distinguished Committee, of our total support of the 
     nomination of Chief Justice Rosemary Barkett to the Office of 
     Circuit Judge of the Eleventh Circuit Court of Appeals.
       We know and attest to Chief Justice Barkett's commitment to 
     the rule of law. As both a trial and appellate judge, she has 
     compiled a brilliant record of dispensing justice without 
     fear or favor.
       The nominee has a proven record of judicial excellence. Her 
     opinions are scholarly and reflective of her keen analytical 
     mind. We hold Justice Barkett in high esteem. Her brilliance 
     and her high integrity are recognized throughout our State.
       Chief Justice Barkett possesses every attribute required 
     for exemplary service as a United States Circuit Judge.
       The undersigned unqualifiedly and enthusiastically support 
     the President's nomination of Rosemary Barkett to the Federal 
     appellate bench.
           Respectfully,
         Marshall M. Criser, Alan T. Dimond, Robert M. Ervin, 
           Robert L. Floyd, Leonard H. Gilbert, William O.E. 
           Henry, Benjamin H. Hill, III, Mark Hulsey, Rutledge R. 
           Liles, James Fox Miller, Joe Reiter, Gerald F. Richman, 
           James C. Rinaman, Jr., Fletcher G. Rush, L. David 
           Shear, Chesterfield Smith, Samuel S. Smith, Wm. Reece 
           Smith, Jr., Russell Troutman, Burton Young.
                                  ____

                                            TRIAL LAWYERS SECTION,


                                              THE FLORIDA BAR,

                                                 January 20, 1994.
     Sen. Joseph Biden,
     Chairman, Senate Judiciary Committee, Washington, DC.
       Dear Senator Biden: Enclosed please find a resolution 
     passed by the Executive Council of the Trial Lawyers Section 
     of The Florida Bar. The Trial Lawyers Section represents over 
     6,000 lawyers regularly appear and try cases in both the 
     state and federal courts in Florida.
       The Executive Council urges the Senate Judiciary Committee 
     and the full Senate to consider their resolution on behalf of 
     Chief Justice Barkett.
       Further the Trial Lawyers Section requests that a 
     representative of the trial lawyers of Florida be allowed to 
     address your committee during hearings on Chief Justice 
     Rosemary Barkett's confirmation.
           Very truly yours,
                                                       Bill Hoppe.
                                  ____


  [From the Trial Lawyers Section of the Florida Bar, Tallahassee, FL]

       Resolution in Support of Confirmation of Rosemary Barkett

       Whereas, Chief Justice Rosemary Barkett has served as a 
     trial judge in the 15th Judicial Circuit, Appellate in the 
     4th District Court of Appeals and for the last fourteen years 
     as a Florida Supreme Court Justice.
       Whereas, Chief Justice Rosemary Barkett is well known to 
     the trial lawyers of Florida for her intelligence, knowledge 
     of the law and judicial temperament.
       Whereas, Chief Justice Rosemary Barkett has been nominated 
     to serve as judge of the United States Court of Appeals for 
     the 11th Circuit.
       Whereas, opposition to Chief Justice Barkett's nomination 
     comes from organizations and persons whose opposition is not 
     to the chief justice's qualifications, but to the chief 
     justice's position on certain legal issues.
       It is therefore resolved that the executive council of the 
     Trial Lawyers Section of the Florida Bar which as 
     representatives of over 6,000 trial lawyers in Florida, urges 
     the chief justice's confirmation by the United States Senate. 
     The executive council is opposed to single issue opposition 
     to judicial nominations and believes that such opposition is 
     contrary to the concept of an independent judiciary. The 
     executive council finds that Justice Barkett is highly 
     qualified to serve as judge of the United States Court of 
     Appeals for the 11th Circuit and endorses her nomination for 
     that position.
                                  ____



                            Hispanic National Bar Association,

                                   Melville, NY, October 25, 1993.
     Hon. Joseph R. Biden, Jr.,
     Chairman, Senate Judiciary Committee, U.S. Senate, 
         Washington, DC.
     Hon. Orrin G. Hatch,
     U.S. Senate, Washington, DC.
       Gentlemen: The Hispanic National Bar Association has 
     reviewed the qualifications of Florida Supreme Court Chief 
     Justice Rosemary Barkett for the United States Eleventh 
     Circuit Court of Appeals, and find her highly qualified to 
     serve. Accordingly, we urge the Senators' confirmation of her 
     to fill the vacancy on this court.
       Justice Barkett has served on the Florida Supreme Court 
     since 1985, and as Chief Justice since 1992. Before serving 
     on the Supreme Court, she served on the Fourth District Court 
     of Appeals, State of Florida, from 1984-1985. From 1979 to 
     1984, Justice Barkett served on the Fifteenth Judicial 
     Circuit, State of Florida, as a circuit judge (appointed 
     1979), administrative judge in the civil division (appointed 
     1982), and as chief judge (elected 1983). Before becoming a 
     judge, Justice Barkett was in private practice in West Palm 
     Beach, Florida, from 1971 to 1979.
       Justice Barkett received her Juris Doctor in 1970 from the 
     University of Florida Law School. She received a Bachelor of 
     Science, Summa Cum Laude, from Spring Hill College in Mobile, 
     Alabama, in 1967. Justice Barkett has been bestowed with 
     Honorary Doctorates of Laws, Civil Laws, and Humane Letters, 
     from Nova University, Rollins College, Spring Hill College, 
     University of South Florida, John Marshall Law School, 
     Florida International University and Stetson University.
       Justice Barkett has demonstrated her commitment to the 
     legal community and the state of Florida by serving on 
     various committees of the American and Florida Bar 
     Associations; Florida Bar Foundation; Child Welfare Study 
     Commission; Child Support Study Commission; Study Commission 
     on Guardianship Law; Juvenile Justice Center; Palm Beach 
     Marine Institute, Inc.; American Judicature Society; and 
     Court Statistics and Workload Committee. Additionally, she 
     is a member of several other associations and 
     organizations, including Children, Families, and the Law 
     Judicial Council; Florida Kids Count Advisory Council; 
     National Association of Women Judges; Florida Commission 
     on the Status of Women; Gender Bias Study Implementation 
     Commission; Florida Association of Women Lawyers; National 
     Association for Court Management; Sentencing Guidelines 
     Commission; and Statewide Prosecution Function Commission; 
     and Statewide Prosecution Function Commission; and is a 
     fellow of the Academy of Matrimonial Lawyers.
       Justice Barkett has been the recipient of numerous awards, 
     including ``Breaking the Glass Ceiling Award,'' presented by 
     the Palm Beach Chapter of the National Association of Women 
     Business Owners; Latin Business and Professional Women 
     Lifetime Achievement Award; ABA Minority Justice Award 
     Honoree; Judge Matties Belle Davis Award, presented by the 
     Florida Association for Women Lawyers, Dade County; Hannah G. 
     Solomon Award, presented by the National Council of Jewish 
     Women; an Achievement Award presented by the Academy of 
     Florida Trial Lawyers; Judicial Achievement Award for the 
     State of Florida, presented by the Association of Trial 
     Lawyers of America; Woman of Achievement Award, presented by 
     the Palm Beach County Commission on the Status of Women; 
     American Academy of Matrimonial Lawyers Award; and the J. 
     Hillis Miller Memorial Award from the University of Florida 
     Law School. Justice Barkett has been inducted into Florida 
     Women's Hall of Fame, and the Academy of Florida Trial 
     Lawyers has established the Rosemary Barkett award to be 
     presented annually.
       Justice Barkett is a faculty member of several colleges, 
     universities, and seminars, including National Judicial 
     College, Florida Judicial College, American Bar Association 
     Appellage Judges Continuing Education Seminars, and Institute 
     of Judicial Administration, New York University, appellage 
     Judges Seminars. She is an adjunct professor, Constitutional 
     Law Class, for Florida State University College of Law. 
     Justice Barkett also serves several institutions of higher 
     education in an advisory capacity.
       The legal and professional abilities Justice Barkett has 
     exhibited in her distinguished career as a Florida state 
     jurist and private practitioner make her an excellent choice 
     for appointment to the Eleventh Circuit Court of Appeals. For 
     these reasons, the Hispanic National Bar Association strongly 
     supports her prompt confirmation.
       If I may be of any assistance to you in answering questions 
     you may have about Justice Barkett, please do not hesitate to 
     contact me.
           Sincerely,
                                           Christopher A. Miranda,
                                       Chair, Judiciary Committee.
                                  ____

                                            National Conference of


                                     Women's Bar Associations,

                                  Edenton, NC., November 23, 1993.
     Re: The Hon. Rosemary Barkett 11th Circuit Court of Appeals.
     Hon. Joseph R. Biden,
     U.S. Senate, Washington, DC.
       Dear Senator Biden: President Clinton has nominated Chief 
     Justice Rosemary Barkett of the Florida Supreme Court for a 
     position on the 11th Circuit Court of Appeals. The Board of 
     the National Conference of Women's Bar Associations, which 
     represents several hundred voluntary bar associations across 
     the United States, has endorsed her appointment and urges you 
     to recommend approval to the Senate.
       Justice Barkett brings to the Judiciary a background rich 
     in diversity and based on a strong family work ethic. Justice 
     Barkett was born of Syrian parents in Ciudad Victoria, 
     Mexico. At age six, when she entered school in Miami, 
     Florida, she did not speak English; nevertheless, she 
     excelled. Her life has also been one of public service. At 
     age 17 she became a Catholic nun, devoted for eight years 
     primarily to teaching children. Justice Barkett has long 
     advocated children's issues and the improvement of juvenile 
     justice.
       When she left the convent, she continued her education by 
     obtaining her undergraduate degree summa cam laude, and was 
     the outstanding law graduate at the University of Florida 
     College of Law. In 1979, after practicing civil and criminal 
     law for nine years, she was appointed as a circuit court 
     judge in the Fifteenth Judicial Circuit of Florida. She has 
     since served on the Florida Fourth District Court of Appeals 
     and is presently the Chief Judge of the Florida Supreme 
     Court.
       Justice Barkett is not ``soft on crime'' contrary to the 
     allegations in some letters you may be receiving from 
     opponents of her confirmation. She has voted with a majority 
     of the Florida Supreme Court 89 percent of the time. 
     Furthermore, she voted to uphold the death penalty in more 
     than 200 cases.
       Justice Barkett is a woman of experience, scholarship, and 
     high moral principles who deserves your support. Her opinions 
     are well reasoned and in the best interest of fairness and 
     justice for all citizens. She would be a tremendous asset to 
     the bench of the 11th Circuit and an inspiration to all of 
     our citizens whose family language was not English.
       Thank you for you consideration.
           Very truly yours,
                                              Katherine H. O'Neil,
                                                        President.
                                  ____

                                           Florida Association For


                                                Women Lawyers,

                               Tallahassee, FL., October 26, 1993.
     Hon. Joseph R. Biden, Jr.,
     Chairman, U.S. Senate,
     Washington, DC.
       Dear Senator Biden: As president of the 3,000 member-strong 
     Florida Association for Women Lawyers, I want to encourage 
     you to give positive consideration to the nomination of 
     Florida Supreme Court Justice Rosemary Barkett to the federal 
     bench. Justice Barkett is a jurist of the highest caliber. 
     Her intellect and her integrity are an inspiration to the 
     many lawyers who seek clear legal reasoning and just results 
     consistent with the law.
       In supporting Justice Barkett, I realize that Florida will 
     lose a great jurist. But the nation will realize a great 
     gain, and those of us in Florida who will miss her keen legal 
     insight and her dedication to our system of law, cannot stand 
     in the way--indeed must hardily support--her ascension to the 
     federal arena.
           Sincerely,
                                                   Virginia Daire.
                                  ____

                                               The Governor of the


                                             State of Florida,

                                                 November 4, 1993.
     Hon. Joseph R. Biden, Jr., Chairman,
     Russell Senate Office Building, Washington, DC.
       Dear Senator Biden: Your committee will soon take up the 
     confirmation of Rosemary Barkett, Chief Justice of the 
     Florida Supreme Court and President Clinton's nominee for 
     appointment to the 11th U.S. Circuit Court of Appeals. The 
     nomination has the enthusiastic support of our citizens, who 
     know that the interests of justice and the people of the 11th 
     circuit will be well served by the confirmation of this 
     extraordinary Floridian.
       The selection of Justice Barkett is another significant 
     milestone in a life that demonstrates a modern day version of 
     the American Dream. The daughter of immigrants who came to 
     the United States when she was a child, Rosemary Barkett is 
     an exemplary individual whose record of success is a direct 
     result of hard work, determination and a commitment to 
     fairness. The zeal with which she pursued her education is 
     typical of the energy she has brought to her other diverse 
     experiences--as nun, teacher, community leader, lawyer and 
     judge. All have been marked by a singular dedication to 
     excellence and service.
       Justice Barkett has served the people of Florida with 
     distinction during a career that has consistently won her 
     respect, admiration and praise. She has offered a strong and 
     steady voice for justice and reason in Florida through her 
     long record of leadership that resonates with integrity. Her 
     judicial colleagues are continually impressed by her 
     scholarship, intellect, temperament and focused sense of 
     fairness.
       Last year, during the statewide merit retention election 
     for Florida Supreme Court justices, some splinter groups 
     waged a nasty and shallow campaign that unfairly attempted to 
     portray Justice Barkett as soft on crime. Floridians, 
     familiar with the truth about Justice Barkett's long and 
     strong record of protecting public safety, were not fooled. 
     Not surprisingly, voters overwhelmingly cast their ballots--
     by nearly a two-to-one margin--to return their Chief Justice 
     to the state's highest court. I am concerned that any 
     similarly misguided effort to misrepresent the facts and the 
     record of Justice Barkett be identified for what it is.
       Rosemary Barkett's example of leadership in Florida is one 
     that surely reflects all that is best about America today. We 
     are proud of her achievements and commend her to you and your 
     committee. I personally offer my highest recommendation for 
     Justice Barkett. She deserves timely consideration and action 
     in the confirmation process. The people of the 11 U.S. 
     Circuit Court of Appeals deserve her service, strength and 
     humanity.
       I know that you are being inundated by recommendations and 
     criticisms about each nominee whom you review. In this case, 
     however, I believe you will find that Rosemary Barkett is an 
     outstanding nominee who is fully deserving of your support.
       With kind regards, I am,
           Sincerely,
                                                    Lawton Chiles.
                                  ____



                                     American Jewish Congress,

                               Miami Beach, FL, December 27, 1993.
     Hon. Joseph R. Biden, Jr.,
     Chairman, Committee on the Judiciary, Washington, DC.
       Dear Mr. Chairman: We are writing on behalf of the 50,000 
     members of the American Jewish Congress to voice our strong 
     support for the nomination of Florida Supreme Court Chief 
     Justice Rosemary Barkett to the United States Court of 
     Appeals for the 11th Circuit. The American Jewish Congress 
     advocates for a federal judicial system whose members are 
     vigorously independent and committed to equal justice for 
     all. Rosemary Barkett has made the dispensation of justice in 
     support of these values the foundation of her legal career.
       We would like to respectfully request that a confirmation 
     hearing date be set for Chief Justice Barkett as soon as 
     possible after the Senate reconvenes in January. We are aware 
     of the fact that a small number of extreme special interest 
     groups have attempted to distort Chief Justice Barkett's 
     judicial record in an effort to scuttle the nomination and 
     deny hear a hearing before the Committee. We believe these 
     actions amount to nothing more than an irresponsible and 
     repugnant effort to smear the reputation of a distinguished 
     and respected jurist.
       Chief Justice Barkett's nomination enjoys strong bipartisan 
     support because her judicial record and philosophy are well 
     within the mainstream of American jurisprudence. She has been 
     endorsed for confirmation by Senator Bob Graham and Senator 
     Connie Mack of Florida, and in last year's merit retention 
     election Chief Justice Barkett received the approval from 
     nearly two-thirds of Florida's diverse electorate. She 
     deserves nothing less than swift confirmation so she might 
     serve our nation as ably as she has served the people of 
     Florida.
           Sincerely,
     Rabbi Ralph P. Kingsley,
       President, Southeast Region.
     Richard F. Wolfson,
       Chairman, Commission on Law and Social Action, Southeast 
     Region.
     Mark S. Freedman,
       Executive Director, Southeast Region.
                                  ____


   [From the American Jewish Congress, Washington, DC, Dec. 28, 1993]

 American Jewish Congress Endorses Rosemary Barkett for Appeals Court 
             Nomination and Calls for Confirmation Hearings

       The American Jewish Congress today endorsed the nomination 
     of Florida Supreme Court Chief Justice Rosemary Barkett to 
     the United States Court of Appeals for the 11th Circuit, and 
     called upon Senate Judiciary Committee Chairman Joseph R. 
     Biden, Jr. to schedule a confirmation hearing date as soon as 
     possible after the Senate reconvenes in late January.
       Rabbi Ralph P. Kingsley, president of the Southeast Region 
     of the AJCongress, said that setting an early hearing date is 
     important to counteract the campaign orchestrated by those 
     who have attempted to distort Chief Justice Barkett's 
     judicial record in an effort to scuttle the nomination.
       In a letter to Senator Biden written by Rabbi Kingsley, 
     AJCongress' Southeast Region Commission on Law and Social 
     Action Chairman Richard F. Wolfson, and Regional Director 
     Mark S. Freedman, AJCongress asserts, ``We believe these 
     actions amount to nothing more than an irresponsible and 
     repugnant effort to smear the reputation of a distinguished 
     and respected jurist.''
       Rabbi Kingsley also praised Republican Senator Connie Mack 
     for joining his Democratic Florida colleague, Senator Bob 
     Graham, in endorsing the nomination. Mack concluded his own 
     independent review of Justice Barkett's judicial record and 
     announced his support in advance of any confirmation hearing.
       The AJCongress letter notes, ``Chief Justice Barkett's 
     nomination enjoys strong bipartisan support because her 
     judicial record and philosophy are well within the mainstream 
     of American jurisprudence. . . . She deserves nothing less 
     than swift confirmation so she might serve our nation as ably 
     as she has served the people of Florida.''
                                  ____

                                           National Association of


                                   Police Organizations, Inc.,

                                 Washington, DC, October 22, 1993.
     Hon. Joseph R. Biden, Jr.,
     Chairman, Committee on the Judiciary, Senate Office Building, 
         Washington, DC
       Dear Senator Biden: The National Association of Police 
     Organizations (``NAPO'') which represents over 143,000 sworn 
     law enforcement officers in more than 2000 associations 
     throughout the United States wholeheartedly supports the 
     nomination of Florida Chief Justice Rosemary Barkett to the 
     Federal Judiciary. The 26,000 NAPO members in Florida are 
     represented by Area Vice Presidents who have unanimously 
     voted for this endorsement.
       During the recent retention election in Florida there was 
     much debate and rhetoric. Representatives of the Florida PBA 
     reviewed Justice Barkett's record and the Florida PBA Board 
     of Directors, as well as most mainstream law enforcement 
     associations, voted unanimously to endorse Justice Barkett's 
     retention. She subsequently won a resounding victory 
     indicating the electorate's support for her efforts on behalf 
     of the citizens of Florida.
       It is our hope that after careful consideration of her 
     record you will agree that Justice Barkett has the 
     professional experience, personal integrity and judicial 
     temperament to serve as a Federal Judge. We respectfully 
     request that you support and vote for this nomination.
           Sincerely,
                                                 Robert T. Scully,
                                               Executive Director.
                                  ____


                [From the News-Journal, Sept. 28, 1993]

                     Fine Choice for Appeals Court

       Florida Supreme Court Justice Rosemary Barkett would be an 
     excellent addition to the 11th Circuit Court of Appeals in 
     Atlanta. Her nomination by President Clinton announced Friday 
     deserves swift Senate confirmation.
       Justice Barkett has been an outstanding jurist. Appointed 
     to the state's high court in 1985 by then-Gov. Bob Graham, 
     she became Florida's first female justice. The other members 
     of the state high court voted her the state's first female 
     chief justice in 1992.
       The child of immigrants, she was a nun and teacher before 
     becoming a lawyer. Her experiences in overcoming a humble 
     background, her intellect, integrity and scholarship have 
     combined to produce a first-rate judge.
       Because Florida's high court judges face an in-or-out merit 
     retention vote every six years, Justice Barkett was on the 
     ballot in 1992. She faced a negative campaign from groups 
     which distorted her record and tried unsuccessfully to paint 
     her as an out-of-control left-wing judicial activist.
       Most of these complaints came from a few activists who want 
     to outlaw abortion in Florida and nullify the state's privacy 
     amendment.
       The labels these groups peddled during the campaign were 
     nonsense and the voters rejected them. Justice Barkett stayed 
     on the bench by a 2-1 margin.
       The same talents Justice Barkett brought to the Florida 
     courts would serve the country well, particularly on the 
     Circuit Court of Appeals. This is the court which has the 
     final say in all appeals not heard by the U.S. Supreme Court. 
     Because the high court hears relatively few cases, the 
     federal appellate courts are powerful arbiters of 
     constitutional issues.
       A judge on such a court must possess rigor of intellect 
     tempered by broad sympathies for litigants. In this regard, 
     Justice Barkett is an unusually strong candidate.
       The Senate should take note and vote to confirm her.
                                  ____


                [From the Miami Herald, Sept. 28, 1993]

                          A Boon for the Bench

                         (By Rosemary Barkett)

       To those who say that it can't be done and feel like 
     quitting: Rosemary Barkett has just done it--again.
       The only woman ever to sit on the Florida Supreme court, 
     she has been nominated to the 11th U.S. Circuit Court of 
     Appeals, one rung below the Supreme Court. What a triumph!
       Her Syrian family emigrated from Mexico to Miami when she 
     was 6. At 18 she became a U.S. citizen and a nun. After nine 
     years of teaching, she entered the University of Florida Law 
     School. She became a top-notch trial lawyer in West Palm 
     Beach. Appointed a trial judge in 1979, she moved to the 
     Fourth District Court of Appeal, then to the Supreme Court.
       True, some critics don't like her for holding that the 
     Florida Constitution's privacy section protects a woman's 
     right to abortion, or for her opinion declaring 
     unconstitutional the Broward sheriff's random drug searches 
     of interstate bus passengers. Others like her decisions but 
     find her writing murky.
       Florida voters looked seriously at Justice Barkett's 
     ``liberal'' record in 1992. Up for merit retention, she was 
     ``targeted'' for removal by abortion opponents and 
     conservative organizations, which called her ``soft on 
     crime.'' Justice Barkett, who has voted 200 times to uphold 
     the death penalty, was re-elected easily.
       The best measure of a judge is not splendid writing but 
     fair decisions. By that measure, Justice Barkett stands tall 
     on merit and on the full range of her life's experience. That 
     experience, of course, is different from that of her male 
     predecessors on the bench. The judiciary ought to welcome 
     that diversity.
       Maybe somewhere in the 11th Circuit there's a ``better 
     qualified'' nominee. But President Clinton could hardly have 
     found anyone better prepared.
       ``I'd like to think that I've made a contribution and a 
     difference in terms of protecting the people of this state, 
     and in terms of caring,'' says Justice Barkett, 54. She has 
     made a difference. More important, she has more to 
     contribute.
                                  ____


              [From the Orlando Sentinel, Sept. 29, 1993]

                      Barkett Right for U.S. Bench

       For eight years, Rosemary Barkett has served Florida with 
     distinction and quiet aplomb--her integrity beyond reproach.
       It was no surprise that such a solid record of fairness on 
     the state Supreme Court bench would catch the attention of 
     President Clinton.
       Last week, Mr. Clinton nominated Florida's chief justice to 
     serve on the federal appeals court in Atlanta, which hears 
     cases from Florida, Georgia and Alabama.
       Ms. Barkett, Florida's first and still only woman on the 
     state Supreme Court, is a top-notch choice for the 11th U.S. 
     Circuit Court of Appeals.
       Last year, Floridians expressed their vote of confidence 
     for Ms. Barkett in her merit-retention election, despite a 
     campaign by detractors who tried to make her seem soft on 
     crime. By focusing on a smattering of controversial cases, 
     though, her critics ignored the bulk of Ms. Barkett's 
     rulings.
       Chances are good that those critics will try to revive such 
     diversionary tactics.
       A look at her state Supreme Court record since 1985 
     produced an indisputable fact: Ms. Barkett placed solidly in 
     the mainstream, voting with the majority in 91 percent of 
     civil and criminal cases and supporting the death penalty in 
     more than 200 cases.
       She is hardly out of step with the law or on a campaign to 
     wage an activist agenda from the bench, as some of Ms. 
     Barkett's critics charged.
       The 54-year-old jurist has shown an uncompromising 
     obligation to uphold Florida's constitution.
       Such was the case when her vote decided that the privacy 
     amendment in Florida's constitution protects all the state's 
     citizens, including pregnant minors who want an abortion.
       Surely, deciding that case must have been difficult for Ms. 
     Barkett, a former Catholic nun, but the state's constitution 
     did not allow for anything else. It is an issue that should 
     be settled by voters changing Florida's constitution, not by 
     a campaign to smear Ms. Barkett's good name.
       U.S. Sen. Bob Graham, who appointed Ms. Barkett to a 
     judgeship when he was governor calls her ``a rigorous legal 
     scholar with an understanding of how the law affects the 
     everyday lives of men and women..''
       And the lives of children, too. Ms. Barkett serves on an 
     American Bar Association panel that is looking at the unmet 
     needs of children. It's heartening that she plans to continue 
     her work on that panel.
       When senators meet Ms. Barkett during confirmation 
     hearings, they will find a committed judge who strives for 
     justice under the law.
                                  ____


                 [From the Sun-Sentinel, Oct. 1, 1993]

Barkett a High-Quality Nomination for Court, Source of Pride for South 
                                Florida

       As expected, President Clinton has nominated Rosemary 
     Barkett, chief justice of Florida's Supreme Court, to become 
     a federal appellate judge.
       The choice is an excellent one, reflecting well on 
     Clinton's commitment to quality in making appointments. If 
     confirmed, she would join the 11th U.S. Circuit Court of 
     Appeals in Atlanta, which hears cases from Florida, Georgia 
     and Alabama.
       Barkett's rise up the legal and judicial ladder has been 
     swift, earned by skill as a trial attorney and judge, 
     leadership as chief judge and chief justice, intelligence as 
     a legal scholar (tops in her law school class), tenacity in 
     problem-solving, plus a commitment to social justice, 
     particularly the needs of the poor.
       Her confirmation by the Senate should be swift, despite 
     likely opposition from groups like Florida Right to Life and 
     the National Rifle Association, which mounted a noisy but 
     ineffective campaign in 1992 to defeat her in a merit 
     retention election.
       Her critics have claimed, falsely, that she is ``soft'' on 
     crime and criminals and engages in a pattern of ``liberal 
     activism'' to free convicted killers, weaken law enforcement 
     and usurp crime victims' rights.
       To the contrary, the court almost always upholds death 
     penalty convictions (she has done so 200 times) and avoids 
     engaging in ``judge-made law.'' So-called liberal activism 
     really involves overturning convictions or sentences based on 
     major trial court errors, protecting people from abusive 
     police and prosecutorial tactics and upholding federal laws 
     and higher court rulings.
       An evaluation of Barkett's rulings shows she is not an 
     extremist, going against the grain, but is clearly in the 
     court's mainstream, siding with the majority 91 percent of 
     the time.
       Barkett, 54, is a University of Florida Law School graduate 
     who has been on the court since her appointment in 1985 by 
     then-Gov. Bob Graham, who as a senator will vote on her 
     confirmation.
       In a sense, she exemplifies one aspect of the American 
     dream--an immigrant who moves to America, learns English and 
     achieves success. Born in Mexico of Syrian parents, she is a 
     former nun and schoolteacher.
       South Floridians have particular cause for pride. Raised in 
     Miami, Barkett served as a private attorney in West Palm 
     Beach for nine years before being appointed a Circuit Court 
     judge in 1979. She became Palm Beach County's chief judge in 
     1983 and joined the 4th District Court of Appeals in West 
     Palm Beach in 1984, moving to the Supreme Court a year later. 
     In July 1992, she was named Florida's first female chief 
     justice.
       Barkett is also living proof of why Florida's ``merit 
     selection'' appointment process does a far better job than 
     elections in putting high-quality people on the bench.
                                  ____


                 [From the Tampa Tribune, Oct. 2, 1993]

                     Clinton Wise To Choose Barkett

       President Clinton made a wise and courageous choice in 
     nominating Florida Supreme Court Chief Justice Rosemary 
     Barkett to fill a seat on the 11th Circuit Court of Appeals 
     in Atlanta.
       Wise because Barkett, a former non and schoolteacher, would 
     bring a lifelong commitment to fairness and justice 
     unsurpassed on the appellate court responsible for hearing 
     cases from Florida, Georgia and Alabama.
       Courageous because despite Barkett's long record of 
     upholding the law while defending the rights of all people, 
     her critics will be out in force when the U.S. Senate 
     confirmation hearing begin.
       Her detractors will be quick to falsely portray Barkett as 
     soft on crime, careless of the rights of children and 
     promoting a liberal agenda.
       Senators, including Florida's owns Connie Mack, will do 
     well to dispense with the rhetoric and, instead, take a hard 
     look at Barkett's record.
       The senators will find that while she has refused to accept 
     the death penalty carte blanche, she has voted to uphold it 
     more than 200 times. She is one of the state's strongest and 
     most outspoken defenders of children's rights. Of the more 
     than 3,000 cases in which she and the other justices have 
     rendered opinions based on a vote of the court, she has voted 
     with the majority in 91 percent of the cases. That scarcely 
     indicates she is guided by her own personal agenda or is out 
     of the mainstream.
       Of the 19 specific cases used to attack her record during 
     the 1992 retention election, seven were unanimous decisions 
     by the court. The 270 cases cited as evidence that she 
     somehow favors criminals were chosen from among 3,000 
     decisions because they supported the critics' points; her 
     supporters would easily select 270 that would have refuted 
     them.
       Fortunately, voters saw through the smoke and returned her 
     to the bench with more than 60 percent of the vote.
       A 1970 honors graduate of the University of Florida Law 
     School, Barkett has experience with the law that includes 
     nine years as a lawyer in West Palm Beach, six years as a 
     circuit and state appellate judge and eight years as a member 
     of the state Supreme Court, the last year as chief justice. 
     She has consistently spoken out for public participation in 
     and inspection of fiscal and managerial matters of the 
     government and courts. But she also recognizes the need to 
     shield some judicial files, including psychological 
     evaluations of children and private papers filed in divorce 
     disputes.
       ``She is everything you want in a judge,'' said Florida 
     Attorney General Bob Butterworth. ``Someone who listens 
     thoroughly to a case, researches both sides fully and renders 
     a decision which is in accordance with the law.''
       Off the bench, Barkett, 54, has touched many lives on the 
     lecture circuit and served admirably as chairwoman of the 
     Study Commission on Child Welfare, which helped lead to the 
     ongoing overhaul of the state Department of Health and 
     Rehabilitative Services (HRS).
       Overall, Barkett's reputation--as dynamic thoughtful, 
     intelligent and personable--makes her amply suited to serve 
     on the federal bench.
       The Senate should move swiftly to confirm her appointment.
                                  ____


             [From the St. Petersburg Times, Oct. 19, 1993]

                  Right Wing Is Recycling Old Garbage

                           (By Philip Gailey)

       The Wall Street Journal editorial page and the Free 
     Congress Foundation--the hard-right team that seeded the 
     political controversy that engulfed Lani Guinier's nomination 
     to a top Justice Department post--have discovered another 
     threat to the republic. This time it is Florida Supreme Court 
     Justice Rosemary Barkett, who is President Clinton's nominee 
     to a seat on the 11th U.S. Circuit Court of Appeals.
       To hear the rap sheet they have compiled on Barkett, you'd 
     think she is personally responsible for most of the crime and 
     mayhem in Florida, that she is aggressively pro-criminal and 
     anti-police, and that she spend most of her waking hours 
     looking for technicalities to spare brutal killers from the 
     hot seat.
       In his Wall Street Journal column last Friday, Paul Gigot 
     wrote that ``to wade through Ms. Barkett's opinions is to 
     encounter root causes, `unconscious discrimination,' fear of 
     police and other liberal explanations for crime. This is 
     especially true in death penalty cases, which she attempts to 
     overturn on the smallest technicality.''
       Gigot and his friends on the right are recycling the same 
     garbage that anti-abortion forces, the National Rifle 
     Association and some state prosecutors threw at her in last 
     year's retention election. The smell is even fouler this time 
     around. They're using the same distortions, 
     oversimplifications and untruths that her Florida opponents 
     used in their smear campaign.
       The state's voters sorted through the garbage and affirmed 
     Barkett, the first woman to serve on Florida's high court, 
     for another term. She won 61 percent of the vote. Remember, 
     Florida's conservative voters stuck with George Bush last 
     year, and they overwhelmingly support the death penalty.
       Sen. Orrin Hatch of Utah, a conservative Republican on the 
     Senate Judiciary committee, plans to lead the inquisition at 
     Barkett's confirmation hearings. If President Clinton is 
     willing to nominate to federal judgeships men and women who 
     personally oppose abortion, you would think Republicans would 
     be willing to accept nominees who have shown they can uphold 
     the death penalty regardless of their personal feelings.
       What will it take to convince people like Hatch that 
     Barkett has not attempted to pull the plug on Florida's 
     electric chair?
       Barkett was nominated to the Florida Supreme court by then-
     Gov. Bob Graham, who signed dozens of death warrants. She has 
     hardly been a disappointment to Graham on that score: Barkett 
     has upheld the death penalty in more than 200 cases since she 
     joined the court.
       A study by Steven Gey, a professor of constitutional law at 
     Florida State University, found that Barkett voted with the 
     majority of the court in 88 percent of the criminal cases it 
     decided from 1986 to September 1992. No one would call the 
     Florida Supreme Court a bunch of bleeding heart liberals, and 
     Barkett has often stood with some of the court's most 
     conservative members in her opinions.
       Yes, Barkett has voted to overturn death sentences. But 
     what appeals judge hasn't? The criminal justice system makes 
     mistakes. The courts are there to correct them. The thing 
     that really bothers her critics is Barkett's obvious lack of 
     enthusiasm for the death penalty.
       Barkett, a former nun, refuses to say what her personal 
     views are. I assume she personally opposes capital punishment 
     but understands a judge must follow the law. Attorney General 
     Janet Reno personally opposes state executions, but as Dade 
     County state attorney she sought the death penalty in plenty 
     of cases. And what about Ruth Bader Ginsburg? The newest 
     member of the U.S. Supreme Court, which has the final word on 
     these matters, was confirmed even though senators still don't 
     know much about her views on capital punishment.
       When the Senate Judiciary Committee opens its confirmation 
     hearings on the Barkett nomination, the Florida jurist will 
     be escorted to the witness table by Democratic Sen. Bob 
     Graham. It would be a shame if the state's Republican 
     senator, Connie Mack, doesn't join Graham for the customary 
     introduction of the nominee.
       Mack, who voted to confirm Ginsburg, says he won't make up 
     his mind about Barkett until he sees what the hearings 
     produce. That's a cop-out. It is usually Graham, not Mack, 
     who waits until the last minute to take a position on a 
     controversial issue.
       Mack, who is facing an easy re-election campaign next year, 
     has grown as a senator in recent years. Even many of his old 
     critics grudgingly acknowledge that much. That's why it's 
     disappointing to see Mack holding back while the hard-right 
     ideologues in Washington circle Barkett for the kill.
       For Mack, the choice is simple: He can stand with Florida 
     voters, who stuck with Barkett last year, or he can stand in 
     the slimy swamp with the vipers who poison nearly every issue 
     they touch.
                                  ____


               [From the Orlando Sentinel, Oct. 25, 1993]

                       Barkett in the Mainstream

       Consevatives on Capitol Hill have started to question 
     whether Chief Justice Rosemary Barkett of the Florida Supreme 
     Court is too soft on crime to be a federal appeals judge.
       Nothing new there.
       President Clinton's choice for the 11th U.S. Circuit Court 
     of Appeals already fought that war last year during her 
     retention election to Florida's top court. Armed with the 
     facts, she won over Floridians with 61 percent of the vote.
       Last year, Ms. Barkett's detractors--from the National 
     Rifle Association to abortion-rights opponents--used a few 
     high-profile cases in which Ms. Barkett sided with the 
     minority to try to paint her as out of step with Florida's 
     judiciary.
       A review of Ms. Barkett's record from 1985, when she was 
     appointed to the Supreme Court, to September 1992, however, 
     shows the jurist to be solidly in the mainstream. She voted 
     with the majority in 91 percent of all cases before the 
     court, and in 88 percent of the criminal cases.
       That apparently isn't enough for Utah Republican Sen. Orrin 
     Hatch or the Free Congress Foundation, an ultra-conservative, 
     judicial watchdog group. Both Mr. Hatch and, the foundation 
     are questioning Ms. Barkett's commitment to uphold the death 
     penalty.
       Certainly, Ms. Barkett has been cautious about applying the 
     death penalty in certain instances. Taking into account that 
     there is no turning back on such a decision, however, that 
     caution is warranted.
       Consider that a study released Thursday by Death Penalty 
     Information Center, a group that opposes capital punishment, 
     documents the cases of 48 men who were released from death 
     row in their states during the past 20 years when new 
     evidence emerged to prove their innocence.
        The report concludes that, in those cases, perjured 
     testimony or improper conduct of prosecutors led to guilty 
     verdicts. It points out several cases in which coincidence, 
     rather than courtroom procedure, produced evidence of an 
     inmate's innocence.
       As it stands, Ms. Barkett voted to uphold the death penalty 
     200 times when the issue came before the Florida Supreme 
     Court in the past eight years she has been on the bench.
       Not only that, but of seven cases in which the U.S. Supreme 
     Court decided to overturn Florida death sentences while 
     George Bush was president, Ms. Barkett had voted to execute 
     in four.
       That would seem to make Ms. Barkett much tougher than the 
     U.S. Supreme Court majority appointed by two Republican 
     presidents in the past decade.
       Clearly, drawing conclusions from a few cases about Ms. 
     Barkett's integrity and her commitment to the law is reckless 
     and unfair. Let the Senate judge Ms. Barkett based on her 
     overall record.
       Senators are sure to find Ms. Barkett's caution to be well-
     reasoned and in the best interests of fairness and justice 
     for all Americans.
                                  ____


               [From the Orlando Sentinel, Oct. 31, 1993]

   Cheap-Shot Artists Waste Taxpayers Dollars To Take Aim at Barkett

                           (By Charley Reese)

       To sue mild language, I don't have much use for the U.S. 
     Senate Judiciary Committee. In recent years, it has allowed 
     the confirmation process for judicial appointments to become 
     show and circus in which the news media and special-interest 
     groups play a bigger role than the senators themselves.
       That is wrong. It doesn't matter which nominee is being 
     trashed or smeared or which party is in the White House. As 
     citizens, we have a vested interest in the integrity of our 
     governmental processes. We have a vested interest in those 
     processes not becoming so distorted and destructive of 
     people's reputations that no decent person would even accept 
     a presidential nomination.
       Finally, we as citizens have a vested interest in our 
     governmental processes always being fair and just.
       For all those reasons, I was ticked off--I'm really trying 
     to use mild language--to find a large package in my mailbox 
     from the Senate Judiciary Committee. It was addressed to me 
     in care of my syndicate and was unsolicited.
       In it was a couple of memoranda from some public servant 
     named Mark R. Disler, who identifies himself as Republican 
     Staff Director, Senate Judiciary Committee. The two memos are 
     addressed to ``interested parties'' and to ``interested 
     persons.'' One dated Oct. 5, states: ``Re: Nomination of 
     Great Interest.'' The second, dated Oct. 12, states: ``Re: 
     Rosemary Barkett.''
       They are both about Florida Supreme Court Justice Rosemary 
     Barkett, who has been nominated by President Clinton to be a 
     federal appeals court judge in the 11th Circuit.
       The packages contain a number of cases in which she has 
     written dissents, as well as a so-called analysis of them. He 
     urges me to feel free to use them, though they are not for 
     attribution. Disler has been in Washington too long. I don't 
     let some staff turkey I never laid eyes on send me an 
     unsolicited package of information, all acquired and paid for 
     at the public's expense, and then be told not to attribute 
     the information. I don't grant anonymity to cheap-shot 
     artists. The public has a right to know how their public 
     servant, in this case Mr. Mark Disler, is wasting their 
     money.
       If you see some other pundit pontificating about Justice 
     Barkett as if he or she actually knew anything about her, 
     you'll know the source--Little Mr. Leaker on the minority 
     staff of the Judiciary Committee.
       In the second memo, while repeating that his memoranda are 
     not for attribution, he states, ``but you can feel free to 
     use the information in them. Please write early and often. 
     Thanks. You can contact Ed Whelan of my staff at the above 
     number if you have questions.''
       I don't know what the official duties of the Republican 
     Staff Director of the U.S. Senate Judiciary Committee are, 
     but they surely do not include instigating a disinformation 
     campaign against a nominee. Somebody ought to fire the jerk. 
     The so-called analyses of the cases he includes are inept 
     distortions. They are wrong characterizations, not analyses. 
     Some are so far off the mark one wonders if the writer can 
     even comprehend the English language.
       The drift of this poisonous partisan, so-called analyses is 
     that Justice Barkett is soft on crime. In one such bit of 
     garbage, it says, ``Barkett views herself as one of the 
     enlightened elite who must override democratically enacted 
     laws in order to bring about what the riff-raff would really 
     want.'' That's a demned lie.
       Listen, I happen to know this lady justice. She is not soft 
     on crime. She has one of finest legal minds in the country, a 
     terrific set of moral values, and abiding respect for the 
     U.S. Constitution and the principles of liberty and law. 
     Thomas Jefferson, James Madison and Patrick Henry would love 
     her--and respect her brilliant mind. They would despise 
     dimwit partisan pipsqueaks like Disler who abuse their 
     positions and the taxpayers.
                                  ____


                  [From the New Yorker, Dec. 20, 1993]

                            Clinton's Judges

       George Bush has been out of there for less than a year, and 
     already it's hard to remember much of anything about his 
     Presidency--except that he waged the Gulf War and appointed 
     David Souter and Clarence Thomas to the Supreme Court. In the 
     long view of history, the appointments will probably loom 
     larger than the war. In fulfilling their constitutional duty 
     to populate the federal judiciary, Presidents leave a legacy 
     that long outlasts them. Federal judges hold office for life; 
     they serve as arbiters of the Constitution's magnificent--and 
     magnificently vague--commands; on issues as various as racial 
     equality, personal privacy, and religious liberty, they shape 
     the society in which we live. Whatever questions may obsess 
     and torment us in the future (Do clones have inheritance 
     rights? Are speed traps permissible on the information 
     highway?), we can pretty sure that federal judges will have 
     the last word on them.
       With Congress in recess, President Clinton has done all the 
     judicial nominating he can do for his first year in office, 
     and it is possible to make an early assessment of how he has 
     discharged this pivotal duty. He turns out to have launched a 
     quiet revolution in the ``diversity''--Beltway shorthand for 
     ethnic and gender heterogeneity--of the federal judiciary. A 
     glance at the record of his predecessors shows the dimensions 
     of the change. According to a comparative analysis by the 
     Clinton White House Counsel's Office, Jimmy Carter, by 
     Thanksgiving of his first year in office, had nominated 
     thirty-four judges, one of whom was a woman; in that same 
     span, Ronald Reagan had nominated forty, two of them women, 
     and George Bush had nominated twenty-three, four women among 
     them. Bill Clinton has nominated forty-eight judges--and 
     eighteen of them are women, including, of course, his most 
     important appointee, Justice Ruth Bader Ginsburg of the 
     Supreme Court. The same pattern holds true for minorities. In 
     the first eleven months of their terms, Carter nominated five 
     black or Hispanic judges, Reagan one, and Bush two. Clinton 
     has nominated fourteen. To put it another way, eighty-two 
     percent of Carter's first-year nominees were white males, 
     and so were ninety-two percent of Reagan's and seventy-
     four percent of Bush's, while only thirty-eight percent of 
     Clinton's first-year nominees to the federal bench were 
     members of that not yet long-suffering breed. The first-
     year trends among Clinton's predecessors continued with 
     little change, and it's logical to expect this President 
     to maintain his pace as well.
       All this good news on the diversity of Clinton's nominees 
     would be bad news indeed if the President had achieved 
     diversity at the expense of quality. But, if the ratings of 
     judicial candidates put out by the American Bar Association 
     are any guide, that hasn't happened. Of the Clinton nominees 
     rated so far this year, three-quarters have received the 
     A.B.A.'s ``well qualified'' label--a higher percentage than 
     Carter's Reagan's, or Bush's first-year nominees achieved. A 
     look at a few of the nominees themselves shows what's behind 
     this favorable consensus. In New York, for example, Pierre N. 
     Leval has long been among the region's most eminent district-
     court judges; he richly deserved to be elevated to the court 
     of appeals. Dean David Trager of Brooklyn Law School, who 
     likewise has a long and distinguished record in public 
     service, clearly belongs on the district-court bench. Highly 
     qualified nominees of diverse backgrounds have been the rule 
     throughout the country. Martha Craig Daughtrey, whom Clinton 
     appointed to the court of appeals, was the first female 
     prosecutor in Tennessee, the first woman to serve as a state-
     court judge in Tennessee, and the first woman to serve on 
     that state's supreme court. Martha Vazquez, an appointee to 
     the district court in New Mexico, is the daughter of Mexican 
     immigrants and is a distinguished trial lawyer. And Nancy 
     Gertner, a nominee to the district court in Massachusetts, 
     has been a leading civil-liberties practitioner and a 
     professor at Harvard Law School.
       The nominee who has generated the most controversy may be 
     the most highly qualified of all. The life story of Rosemary 
     Barkett reads like a gloss on the American dream. She was 
     born in 1939 in a small town in Mexico. Her parents, who were 
     immigrants from Syria, had sixteen children, of whom only 
     five survived. The Barkett family moved to Miami when 
     Rosemary was five. About the time she turned eighteen, she 
     became both a Roman Catholic nun and a United States 
     citizen. After teaching school for several years, she 
     graduated from college, and then, having left the convent, 
     she graduated near the top of the University of Florida 
     College of Law's class of 1970. Following a successful 
     stint as a litigator, Barkett became a lower-court judge 
     in the Florida state system in 1979, and by 1985 she had 
     worked her way up to an appointment to the Florida Supreme 
     Court. As a justice on that court--she is now its chief 
     justice--she won a reputation as one of the most 
     progressive and intelligent judges in the nation, gaining 
     particular notice for her 1989 vote that the Florida 
     Constitution protects a woman's right to choose abortion.
       A handful of conservative critics have assailed Barkett for 
     insufficient zeal in support of Florida's death-penalty 
     statute. One may question whether such zeal is something to 
     be desired in a judge; in any event, Barkett has shown 
     nothing but evenhandedness in enforcing that doleful law, 
     voting more than two hundred times to approve death 
     sentences. Barkett's opponents managed to prevent her 
     confirmation to a seat on the court of appeals from going 
     forward before Congress adjourned in November, but, since she 
     has virtually the entire Florida legal establishment behind 
     her--and most of the state's major newspapers as well--she 
     stands every chance of winning approval early next year.
       Clinton's nominees are different from those of his 
     Republican predecessors in more suprising ways, too. Bush 
     and, especially Reagan nominated any number of aggressively 
     opinionated young academics to the federal bench. Clinton has 
     resisted the temptation to match that record ideologue for 
     ideologue; rather, he has drawn in significant measure from a 
     deep pool of judges on state courts, which served as a refuge 
     for many moderate jurists over the past twelve years. Nor has 
     Clinton sought to magnify his legacy by reaching out for 
     notably youthful nominees; his selections include many judges 
     in their fifties and a few in their sixties. It's true that, 
     as the Washington Post pointed out the other day, the Clinton 
     judge-picking machinery has moved slowly, and that the age 
     factor will cause vacancies to remain endemic in the system. 
     But this President seems to recognize that, in the long run, 
     who the judges are rather than how long they serve will 
     determine their contribution to the judicial system and the 
     nation.

  Mr. GRAHAM. Mr. President, the question that has been asked is, 
``Will she carry out the law?'' The statement has been made that she 
did not follow the edicts of the U.S. Supreme Court as it related to 
equal protection, to due process, to privacy, and a list of other 
items, a charge to which I would say she would enthusiastically plead 
guilty. And the reason is because she was not sitting as a Federal 
judge with responsibilities singularly for enforcing the Constitution 
of the United States of America. She took a dual oath of office to 
enforce not only the Constitution of the United States of America, but 
where it went beyond the standards available to all Americans to 
enforce the constitution of the State of Florida.
  Mr. President, let me just bring to your attention, as I did earlier 
today to the Members of the Senate, a provision which was adopted in 
our Constitution in 1980, 5 years before Justice Barkett became a 
member of the supreme court. It was adopted by an overwhelming vote of 
the people of Florida in November 1980. It is our State's right to 
privacy. That amendment reads:

       Every natural person has the right to be left alone, has 
     the right to be free from governmental intrusions into his 
     private life.

  Mr. President, those words are part of the protections available 
through the Florida Constitution to the citizens of our State. The 
arguments against her would state that she was disqualified from being 
a member of the Federal judiciary because she had faithfully carried 
out the mandates of the State constitution to which she swore an oath 
of allegiance. Had she failed to do so, I think that would have been 
the disqualifying factor. Yes. Under provisions like that, as well as 
other State constitutional provisions, which give additional 
protections in important areas of equal protection and due process, she 
has judged the constitution of Florida as it has been interpreted in 
the past and as it is written, by the vote of the people, to give those 
additional protections. She has been a faithful jurist in discharging 
her responsibilities.

  Mr. President, if she had been less than that, she would not have had 
the support of the law enforcement agencies, of the legal community, of 
the leading observers of the civic life of our State, as she did when 
she continued in service in the Florida Supreme Court in 1992, and now, 
as she has been nominated by the President of the United States of 
America to serve in this high Federal judicial position.
  I am surprised that her opponents would essentially argue for a 
unitary judicial system in America, which would deny States the right 
to afford to their citizens a different standard of protection.
  Mr. HATCH. Will the Senator yield?
  Mr. GRAHAM. Mr. President, I will finish my remarks, and then I will 
yield for whatever questions or comments the Senator cares to make.
  As Senator Mitchell referred to the first 10 amendments to the 
Constitution of the United States as being man's highest statement of 
human rights and civil rights, I point out that the 10th of those 10 
first amendments was one which reserved to the States and to the people 
all powers not delegated by the Constitution to the central Government. 
The State of Florida and other States have exercised that reserve 
power, including exercising it to grant additional protections to the 
people of their State.
  Mr. President, in conclusion, this is a uniquely qualified woman to 
serve in the Federal judiciary. She has served our State with 
distinction for a significant portion of her adult life. She has met 
every test in terms of her personal, professional, and judicial 
qualifications, and has passed each of those tests. She has 
demonstrated her knowledge and her willingness to enforce the law. She 
has stated that she understands the difference between her service as a 
member of the Florida Supreme Court--now the chief justice of the 
supreme court--and the responsibilities she will have as a member of 
the Federal judiciary. And in her new position, she will follow the 
precedents as established by the U.S. Supreme Court.
  She has the support of law enforcement, of those persons who know 
what contributions she has made toward the provision of criminal 
justice in our State.
  Mr. President, this is a person whom I know personally; this is a 
person whom I recommend in the strongest terms for this important 
Federal judicial responsibility.
  I am now pleased to yield.
  Mr. HATCH. I thank my colleague for yielding.
  Mr. President, I know the distinguished Senator from Florida is very 
sincere and very dedicated in getting this nominee through. I admire 
him for that and appreciate it. Keep this in mind: When I listened to 
the majority leader saying that the Bill of Rights is what is involved 
here, I think it is the Bill of Rights. Nobody reveres the Bill of 
Rights more than I do. That is precisely why I do not think this judge 
should be confirmed.
  Secondly, the Senator from Florida has indicated that, yes, there 
have been some problems with Justice Barkett's not following Federal 
precedents. There really have, and she has admitted it. In the first 
place, the role of a State supreme court justice and of a Federal 
appellate court judge are absolutely identical in terms of their 
obligation to follow U.S. Supreme Court precedent on issues of Federal 
constitutional law. The issue is not whether she reads the Florida 
Constitution more broadly--as has been argued here--than the U.S. 
Constitution. The issue is that she has a clear pattern of misreading 
the U.S. Constitution and clear-cut Supreme Court precedent. That has 
to be said. Nobody believes in the Bill of Rights more than I do. That 
is why I do not think this judge should be confirmed for the circuit 
court of appeals.
  Mr. GRAHAM. Mr. President, in the remaining 30 seconds, I will 
briefly respond. In case after case that has been cited on the 
principle that Justice Barkett is not following precedent, those are 
the cases which she resolved under State standards, not under Federal 
standards. There has been no allegation that she was not faithfully 
adhering to the law and precedent, and applying her judgment as she 
felt it appropriate to do to carry out her dual responsibilities as a 
State supreme court justice and to the Federal Constitution.
  She will meet that same high standard of fidelity and judicial 
commitment to the law as a judge on the Eleventh Circuit Court of 
Appeals, to which I am confident this Senate will soon confirm her.
  Mr. WALLOP. Mr. President, last January 25, President Clinton used 
his State of the Union Address to assure Americans that he was tough on 
crime. He urged that we pass a ``strong, smart, tough crime bill,'' and 
endorsed, among other things, boot camps for young offenders and the 
``three strikes, you're out'' provision which mandates life in prison 
for criminals convicted of a third serious felony.
  I applaud those statements. I would suggest, however, that what we 
need is not more rhetoric, but firm leadership, actions that speak 
louder than words.
  A President who is tough on crime would not appoint judges who 
believe in coddling criminals because they are the victims of society. 
A President who was tough on crime would not appoint Justice Rosemary 
Barkett to sit on the U.S. Court of Appeals for the Eleventh Circuit.
  In particular, I am referring to decisions by Justice Barkett that 
would severely hamper the ability of police officers to enforce laws 
against drug trafficking and other crimes. I am not a lawyer, Mr. 
President, but when the ranking member of the Judiciary Committee 
describes a pattern of unduly restrictive fourth amendment decisions on 
search and seizure then I understand that the result is a soft-on-crime 
approach.
  A person certainly does not have to be trained in the law to 
understand just how outrageous was the dissent in which she joined in 
the Dougan case. Let me briefly outline the facts in that case.
  Dougan was the leader of a group called the Black Liberation Army, a 
group which had the sole purpose of killing white people in order to 
start a revolution and racial war. In 1974, Dougan and four other 
members of the group picked up a white hitchhiker, drove him to a dump, 
and repeatedly stabbed and then shot him in the chest and head.
  Later Dougan made several tape recordings bragging about the murder, 
describing it in graphic detail and stating that he thought it was 
beautiful and that he enjoyed every minute of the grisly scene.
  Dougan was ultimately sentenced to death because the trial court 
found aggravating circumstances and no mitigating circumstances. The 
Florida Supreme Court agreed. However, Justice Barkett joined in a 
dissent which stated:

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

  On a side note, Mr. President, I find it ironic that a Senate which 
recently passed a strong anticrime measure containing a provision to 
enhance sentences for hate crimes--where a defendant selects a victim 
because of race--would affirm any nominee who finds hate a mitigating, 
rather than an aggravating factor.
  This is just a short synopsis of Justice Barkett's record. This 
nomination typifies the hypocrisy of an administration that on the one 
hand says it is tough on crime but on the other does its level best to 
see that no one can, or will by their own admission ensure that 
happens.
  President Clinton can use a high-visibility speech or he can use the 
weight of his office to convince America that he cares about the 
problem of crime.
  Mr. NICKLES. Mr. President, Rosemary Barkett, chief justice of the 
Florida Supreme Court, has been nominated to the U.S. Court of Appeals 
for the Eleventh Circuit. I am going to vote against her.
  To help explain my vote, I will refer to three capital punishment 
cases. These cases help illuminate Justice Barkett's views of life and 
the law--and it seems to me that these views disqualify her for 
elevation to the court of appeals.
  Justice Barkett has, of course, written hundreds of opinions and 
participated in thousands of cases, and perhaps it is unfortunate that 
we must focus on a small number of her cases. I acknowledge that 
Justice Barkett has often, indeed usually, voted with the majority of 
her court. However, her dissents most vividly outline her views, and 
when we turn to the dissents we see most clearly those cases where she 
has drawn a line between her and her colleagues.
  Former Associate Justice William J. Brennan has written:

       [D]issents are * * * critical to an understanding of [a] 
     justice. Just as we judge people by their enemies, as well as 
     their friends, their dislikes as well as their likes, the 
     principles they reject as well as the values they 
     affirmatively maintain, so do we look at judges' dissents, as 
     well as their decisions for the court, as we evaluate 
     judicial careers. In Defense of Dissents, 37 Hastings L.J. 
     427, 428 (1986).)

  Let us now turn to the cases that illustrate Justice Barkett's views:
  First, Dougan v. State, (595 So.2d 1 (Fla. 1992) (per curiam)), a 
case where a racially motivated murder was committed in the hope that 
it would trigger a race war. Here are the facts as reported by the 
court:
  Jacob Dougan and four of his friends belonged to the Black Liberation 
Army [BLA]. They were, perhaps, the only members of this group ``whose 
apparent sole purpose was to indiscriminately kill white people and 
thus start a revolution and race war.''
  In June 1974, Dougan and his accomplices drove around Jacksonville, 
FL, searching for victims, but they saw no one who could be murdered 
secretly. Dougan did, however, write a note that was to be placed on 
the body of the eventual victim. Later that night the BLA chose its 
victim, a lone, white hitchhiker named Stephen Orlando, age 18. Orlando 
was kidnaped, taken to an isolated garbage dump, stabbed repeatedly, 
and shot by Dougan.
  Dougan then took to bragging about the murder. He made audiotape 
recordings which he mailed to the media and, as if that weren't 
villainous enough, to the victim's mother. The following excerpt is 
from one of Dougan's tapes--which the court said aptly illustrates 
their contents:

       The reason Stephen was only shot twice in the head was 
     because we had a jive pistol. It only shot twice and then it 
     jammed; you can tell it must have been made in America 
     because it wasn't worth a (expletive deleted). He was stabbed 
     in the back, in the chest, and the stomach, ah, it was 
     beautiful. You should have seen it. Ah, I enjoyed every 
     minute of it. I loved watching the blood gush from his eyes.

  At trial, one of Dougan's accomplices testified for the State, and 
the other four were convicted of murder. Only Dougan, however, was 
sentenced to death. The trial court found three aggravating factors and 
no mitigating factors.
  The dissent, which sought life imprisonment rather than death, was 
not written by Justice Barkett, but she joined it. It said:

       This case is not simply a homicide case, it is also a 
     social awareness case. Wrongly, but rightly in the eyes of 
     Dougan, this killing was effectuated to focus attention on a 
     chronic and pervasive illness of racial discrimination and of 
     hurt, sorrow, and rejection. Throughout Dougan's life his 
     resentment to bias and prejudice festered. His impatience for 
     change, for understanding, for reconciliation matured to 
     taking the illogical and drastic action of murder. His 
     frustrations, his anger, and his obsession of injustice 
     overcame reason. The victim was a symbolic representative of 
     the class causing the perceived injustices.

  At her hearing in the Senate Judiciary Committee on February 3, 1994, 
Justice Barkett said that she was attempting to follow the law in 
Dougan, and that although she didn't pen the dissenting opinion she had 
no problem in agreeing with it.
  The majority of the Florida Supreme court said that the dissenters' 
logic in the Dougan case ``would lead to the conclusion that the person 
who put the bomb in the airplane that exploded over Lockerbie, 
Scotland, or any other terrorist killer should not be sentenced to 
death if the crime were motivated by deep-seated philosophical or 
religious justifications.''
  Mr. President, in his recent book, ``The Moral Sense,'' Prof. James 
Q. Wilson writes of the ``philosophical doubts, therapeutic nostrums, 
and ideological zealotry'' that have ``infected'' the modern age. He 
said:

       ``The moral relativism of the modern age has probably 
     contributed to the increase in crime rates. * * * It has done 
     so by replacing the belief in personal responsibility with 
     the notion of social causation and by supplying to those 
     marginal persons at risk for crime a justification for doing 
     what they might have done anyway. If you are tempted to take 
     the criminal route to the easy life, you may go further along 
     that route if everywhere you turn you hear educated people 
     saying--indeed proving--that life is meaningless and moral 
     standards arbitrary.

  Mr. President, I am unwilling to confirm Justice Barkett because this 
dissenting opinion sounds to me like an apology for murder--so long as 
the murder is politically correct. I cannot vote for a judge who would 
write, or join, such an opinion.
  The second case is Cruse v. State, (588 So.2d 983 (Fla. 1991) (per 
curiam), cert. denied, 112 S. Ct. 2949 (1992), a case involving a 
notorious mass murderer and cop killer. Here are the facts as reported 
by the court:
  In the spring of 1987, in Palm Bay, FL, William Cruse shot and killed 
rookie police officers Ronald Grogan and Gerald Johnson and four 
others. They were shot with a powerful semiautomatic rifle--which Cruse 
had purchased a month earlier--fitted with special ammunition clips--
which Cruse had purchased a week earlier.
  Cruse's first three victims were killed at a Kmart shopping center. 
When Cruse heard sirens approaching, he got in his car and drove across 
the street to another shopping center where he began firing into a Winn 
Dixie store. When officers Grogan and Johnson drove into the Winn Dixie 
parking lot in separate police cars, Cruse turned his attention from 
the store, inserted a fresh 30-round clip into his assault rifle, and 
fired eight times through Grogan's windshield, killing him. As Officer 
Johnson was getting out of his car, Cruse wounded him in the leg. 
Officer Johnson then attempted to find cover among the cars but Cruse 
pursued him and killed him with three shots. When a rescue team tried 
to retrieve Grogan's car, Cruse opened fire on them, shouting, ``Where 
is the cop? Get away from the cop. I want the cop to die.''
  At trial, the jury found Cruse guilty of six counts of first-degree 
murder and numerous other counts and recommended the death penalty for 
each of the murders. However, the trial judge upheld those 
recommendations only for the murders of Grogan and Johnson. All 12 
jurors agreed that Officer Johnson's murder was worthy of the death 
penalty; 11 of them agreed that Officer Grogan's murder called for 
death. The trial judge concurred in both cases. On appeal, six of the 
seven members of the Florida Supreme Court also concurred--the one 
exception was Rosemary Barkett.
  In sentencing Cruse to death, the trial court found one mitigating 
circumstance--extreme mental or emotional disturbance--to which it gave 
great weight. That court also found four aggravating circumstances, 
including that the murders were committed in a cold, calculated, and 
premeditated manner without any pretense of moral or legal 
justification.

  Although Cruse had procured the weapons, clips, and ammunition in 
advance, driven to one shopping center and then another, reloaded 
before opening fire on Officer Grogan, and tracked Officer Johnson 
through the parking lot, Justice Barkett held that Cruse was too 
mentally disturbed for cool and calm reflection. Furthermore, she 
wrote, Cruse had acted with a pretense of moral or legal justification 
because he ``was acting in response to his delusions that people were 
trying to harm him.'' Justice Barkett would have revoked the death 
sentences and imposed life sentences.
  Justice Barkett also dissented because she believed that the 
prosecution in Cruse had withheld evidence from the defense in 
violation of the U.S. Supreme Court's mandate in Brady v. Maryland, 
(373 U.S. 83 (1963)). On this ground, she would have reversed the 
convictions and remanded for a new trial. No other justice agreed with 
her on this point, either.
  Justice Barkett was asked about Cruse in her hearing before the 
Senate Judiciary Committee on February 3. She said she had merely 
followed precedent, and she asked not to be judged on this one case.
  The question is, is Cruse an aberration, or is it illustrative?
  Senator Dole has pointed out that ``Justice Barkett has never--not 
once--dissented from a majority decision of the Florida Supreme Court'' 
when the court was overturning a capital sentence, but she has 
dissented more than 100 times when the court enforced a capital 
sentence (140 Cong. Rec. S1822 (daily ed. Feb. 24, 1994)). Her dissent 
in Cruse was one of those 100-plus dissents. Justice Barkett does not 
always oppose capital sentences, though. According to one count, she 
has voted to uphold them some 120 times. Here, then, is Justice 
Barkett's record:
  Voted with majority to uphold capital sentence: some 120 times,
  Voted against majority when it upheld capital sentence: 100-plus 
times,
  Voted against majority when it struck down capital sentence: zero.
  This is not, Mr. President, a balanced judicial record.
  The third case is, LeCroy v. State (533 So.2d 750 (Fla. 1988), cert. 
denied, 109 S.Ct. 3262 (1989)), a case where a double murder was 
committed by a 17-year-old. Here are the facts as reported by the 
court:

       While camping in a wild area of Palm Beach County, FL, in 
     January, 1981, husband and wife John and Gail Hardeman were 
     murdered by Cleo LeCroy. Mr. Hardeman was killed by a shotgun 
     blast to the head. Mrs. Hardeman was shot in the chest, head, 
     and neck with a small caliber gun. There was some evidence 
     that Mrs. Hardeman was sexually molested after she was shot. 
     LeCroy was 17 years and 10 months old when he killed the 
     Hardemans.

  The jury found LeCroy guilty of first-degree felony murder in the 
murder of Mr. Hardeman because the murder was part of a robbery. LeCroy 
was found guilty of first-degree premeditated murder in the murder of 
Mrs. Hardeman because that murder was committed to silence a witness. 
The jury recommended a life sentence for the murder of Mr. Hardeman but 
recommended death for the murder of Mrs. Hardeman. The trail judge 
agreed with the jury on both counts.
  In his sentencing order for the murder of Mrs. Hardeman, the judge 
found there aggravating circumstances and two mitigating circumstances.

       The trial court gave great weight to the second mitigating 
     factor [LeCroy's age] but found that the evidence showed that 
     [he] was mentally and emotionally mature and that he 
     understood the distinction between right and wrong and the 
     nature and consequences of his actions.

  Florida, like all States, recognizes numerous distinctions between 
adults and minors, but a Florida statue provided that a minor of any 
age charged with a capital crime ``shall be tried and handled in every 
respect as if he were an adult.'' The Florida Supreme Court deferred to 
the legislature's judgment and upheld the death sentence against the 17 
year old.
  Only Justice Barkett dissented. She said:

       I believe that imposing the death penalty on one who was a 
     child at the time of the crime violates the [proscription 
     against cruel and unusual punishments in] the eighth 
     amendment to the federal constitution and article I * * * of 
     the Florida Constitution. * * * I believe the death penalty 
     is totally inappropriate when applied to persons who, because 
     of their youth, have not fully developed the ability to judge 
     or consider the consequences of their behavior.

  When asked about LeCroy at her Judiciary Committee hearing, Justice 
Barkett said she was applying principles she had derived from a case 
decided by the U.S. Supreme Court four months earlier. That case was 
Thompson v. Oklahoma, (48 U.S. 815 (1988) (plurality opinion), where 
the Court held that the Constitution of the United States does not 
allow capital punishment for a person who was 15 years old when he 
committed murder. To be more precise, the Court did not announce a flat 
rule against such executions, although four members of the U.S. Supreme 
Court were prepared to do so. Justice O'Connor, who cast the deciding 
vote, was willing to strike down the Oklahoma statute but unwilling to 
announce a per se rule.

  On the other hand, the six-member majority of Justice Barkett's court 
gave four reasons for believing that Thompson versus Oklahoma did not 
control LeCroy. The reasoning of the majority was subsequently 
justified when a few months later in Stanford v. Kentucky, (492 U.S. 
361 (1989)), the U.S. Supreme Court held that the Constitution of the 
United States does not forbid a State to impose capital sentences on 
persons who were 16 or 17 years old when they committed murder. At the 
time Stanford was decided, of the 37 States that permitted capital 
punishment, 25 States allowed the death penalty for 17 year olds and 12 
States did not. (492 U.S. at 370 n. 2).
  In her dissent in LeCroy, Justice Barkett cited ``evolving societal 
standards'' which are, of course, a fixture of eighth amendment law. 
Many Americans wonder, though, why some judges have society evolving in 
ways that make it more and more difficult to punish criminals. As 
criminals themselves become younger and more vicious and more efficient 
in their lawlessness, the law seems to evolve into confusion and 
powerlessness. What kind of evolution is this, Mr. President?
  I cannot support Justice Barkett's nomination and will vote against 
her. I encourage our colleagues to do likewise.
  Mr. KENNEDY. Mr. President, I commend President Clinton for 
nominating Justice Rosemary Barkett to the U.S. Court of Appeals.
  Justice Barkett's career is a powerful symbol of the American dream 
and the achievement that is possible through hard work and commitment 
to the Nation's ideals. One of 16 children born to an immigrant family 
living in Mexico, she came to America at the age of 5. She knew only a 
few words of English. She became a Roman Catholic nun and taught school 
for several years before attending the University of Florida Law 
School, where she graduated near the top of her class.
  After 8 years in practice, she was appointed to the State trial court 
in 1979, then to the State appellate court, and finally to the Florida 
Supreme Court in 1985, the first woman to be accorded that high honor. 
For the past 2 years, she has served as chief justice of that 
distinguished court. She has been a leader in assuring that the courts 
are accessible to persons with disabilities, and she has been a strong 
advocate of pro bono work by all members of the bar.
  Justice Barkett has been harshly attacked by a small group of critics 
who claim that she is soft on crime. Few people are in a better 
position to understand and appreciate the falsity of that charge than 
the people of Florida, who have overwhelmingly rejected such claims. On 
two occasions, the people of Florida have voted overwhelmingly to 
retain her on the State supreme court. She was endorsed in her most 
recent election by the Police Benevolent Association, the Fraternal 
Order of Police, and the Peace Officer's Association.
  The impressive bipartisan support she has received for this position 
is a tribute to her outstanding qualifications for this important 
court. Elected officials from Florida, including Senator Graham and 
Senator Mack, Gov. Lawton Chiles, and the attorney general and his 
Republican predecessor in the State all support Justice Barkett's 
nomination. None of them supports coddling criminals, and none of them 
would support Justice Barkett's nomination if they though she was soft 
on crime.
  Her critics have sought to characterize Justice Barkett as opposed to 
the death penalty, because she has voted in selected cases to set aside 
a death sentence.
  In our system of justice, if the death penalty is to be imposed, the 
courts must take care to ensure that it is not imposed on an innocent 
person. These life or death cases are among the most important 
responsibilities of the courts, and Justice Barkett clearly takes that 
responsibility seriously.
  In fact, Justice Barkett has voted to enforce the death penalty more 
than 100 times. It would be wrong to oppose an outstanding nominee with 
a distinguished record on the bench simply because she has voted to set 
aside the death penalty in a few cases.
  Justice Barkett is an outstanding jurist. She is well qualified to 
serve on the court of appeals, and I urge the Senate to reject the 
baseless charges against her, and confirm her nomination.
  Mr. BURNS. Mr. President, President Clinton has exercised his 
constitutional power and nominated Judge Rosemary Barkett to the U.S. 
Court of Appeals for the Eleventh Circuit. While the President has the 
right to choose his political appointments, we as Members of the U.S. 
Senate have the responsibility to thoroughly review these nominations.
  I believe the proper way to evaluate a judicial nominee is by 
examining her judicial philosophy as reflected in her substantive 
record. While there's no question that I have philosophical differences 
with Justice Barkett on some of her political viewpoints, my greatest 
concern is that she is too soft on crime. Her record has shown that she 
has gone out of her way to block attempts to enact criminal laws, to 
limit enforcement of criminal laws, and to prevent implementation of 
criminal laws.
  The most salient of her efforts to soften criminal law are her 
efforts to block the implementation of the death penalty. Rosemary 
Barkett has tried to set a precedent for great empathy for convicted 
killers. While this position is borne out of the best intentions, her 
personal empathy has led her to blame even the most heinous crimes on 
everything from troubled racial relations to a failure of the social 
system and learning problems during a killer's youth. To this end, she 
has embraced a radical theory of statistical manipulation--rejected by 
both the U.S. Supreme Court and the U.S. Senate, as well as State 
attorneys general across America--that would effectively abolish the 
death penalty without regard to whether actual killers in actual cases 
deserved execution.
  At a time when violent crime is one of the foremost concerns across 
the United States, and the Senate has focused an unprecedented amount 
of time and effort to produce legislation that will finally address the 
crime problem and alleviate the growing concerns of American citizens. 
I am frustrated that the President, with his tough-on-crime rhetoric, 
would counteract these efforts and nominate a judge whose record has 
made evident that she will not uphold tough criminal laws in our 
judicial system.
  I urge my colleagues to review Justice Barkett's judicial opinions, 
as a member of Florida's supreme court, and cast their votes with 
Justice Barkett's views on crime in mind. We have made great strides in 
our unified support for the passage of the crime bill. But, placing 
more police officers on the street and building new regional prisons 
will do little good if judges will misconstrue our intentions and 
narrow the scope of the criminal laws.
  Ms. MIKULSKI. Mr. President, I just want to take this opportunity to 
offer my support for the nomination of Rosemary Barkett, of Florida, to 
serve on the eleventh circuit court of appeals.
  I have three criteria that I apply to all nominees for Federal 
judicial appointments: First, is the nominee competent? Second, does 
the nominee posses the highest personal and professional integrity? 
Third, will the nominee protect and preserve the core constitutional 
values and guarantees that are central to our system of Government?
  First, Chief Justice Barkett's background is evidence of her 
competency and qualifications to serve on the circuit court. Not 
surprisingly, she graduated among the top of her class in law school In 
1979, she was appointed to the trial court and became the first woman 
to serve as a chief judge of Florida circuit court and Florida supreme 
court. Justice Barkett is held in high regard by her colleagues, 
supported by both U.S. Senators representing Florida and Florida's Gov. 
Lawton Chiles, and endorsed by several organizations including the 
Fraternal Order of Police.
  Second, prior to becoming a lawyer, Justice Barkett was a school 
teacher and was a Roman Catholic nun. She taught religious and public 
school children while at the convent and her life exemplifies the 
utmost in personal and professional integrity.
  It may seem unusual to some for a former nun to serve on the court, 
but I will tell you what her nomination actually represents. This 
nomination is indicative of the progress we have made. It shows that we 
are able to judge individuals on their qualifications and merit. Judge 
Barkett through her efforts and hard work is refuting old stereotypes--
religious and gender.
  Finally, I believe that Chief Justice Barkett has shown that she will 
continue to be a great jurist. She will serve the court well to protect 
and preserve our core constitutional values. I commend the President 
for nominating her and demonstrating his support for diversity on the 
court.
  Mr. McCAIN. Mr. President, after reviewing Judge Barkett's judicial 
record and her testimony before the Judiciary Committee, I regret that 
I must oppose her confirmation to be a judge of the U.S. court of 
appeals for the eleventh circuit. I believe that Justice Barkett is a 
fine person, but I am greatly concerned by many of her judicial 
opinions which have led me to believe the judge might misconstrue the 
written law in order to support her own personal views and that she 
will take a weak stance on criminal law enforcement.
  One of the most important issues in which she has ruled and would 
rule on the eleventh circuit is the death penalty. According to a 
January poll by the Prodigy Service, 71 percent of the American people 
favor the death penalty and would like to see it applied to more 
violent crimes. The people are correct on this issue. However, if 
Justice Barkett's opinions were to be followed, application of the 
death penalty would be rendered much less likely an option.
  For example, Judge Barkett has advocated that a seemingly limitless 
and legally tortuous defense against the death penalty be applied to 
the Florida State Constitution in response to U.S. Supreme Court ruling 
against the use of ``disparate impact'' statistical evidence under the 
Federal Equal Protection Clause in McCleskey v. Kemp, 461 U.S. 279 
(1987). Judge Barkett then responded to the ruling by stating that 
McCleskey failed to address the problems concerning ``unconscious 
discrimination,'' and that statistical evidence should include not only 
the disposition of first degree murder cases, but also ``other 
information that could suggest discrimination'' including ``the general 
conduct of a state attorney's office, including hiring practices. * * 
*'' The defendant can then use this ``statistical'' evidence to prove 
that discrimination influenced the decision by the State attorney's 
office to seek the death penalty, which the State is then forced to 
disprove.
  This opinion would allow any death penalty defendants to investigate 
the offices of the State attorneys to find latent discrimination 
resulting in discriminatory death penalty prosecution. Under Judge 
Barkett's skewed standard, there could be cases where defendants can 
claim discrimination based upon race, religion, or sex. Judge Barkett's 
opinion, if applied, could drive the legal system to a halt, clogging 
the courts with cases where death penalty defendants appeal their 
sentences not on their innocence or guilt but on the basis of the 
atmosphere in the State attorney's office.
  Justice Barkett's supporters will argue that this is merely one case, 
and that she has, on occasion, voted in favor of the death penalty. 
However, I want to point out that well over 100 times she dissented 
from the majority of the Florida Supreme Court, and voted against the 
death penalty. She never once dissented from the majority to vote in 
favor of the death penalty. Judge Barkett's record raises serious 
doubts about her true support for the death penalty and her judicial 
judgment.
  Mr. President, Justice Barkett has also proven herself to be soft in 
other areas of crime, especially on the issue of obscenity. In the case 
of Stall versus State of Florida, Justice Barkett dissented from the 
Florida Supreme Court majority by ruling that a Florida obscenity law 
violated due process. In her opinion, she stated that, ``A basic legal 
problem with criminalization of obscenity is that it cannot be 
defined.''
  This is a direct contradiction of the U.S. Supreme Court case, Miller 
versus California, which stated that obscene material can be defined as 
material that appeals to the prurient interest, or offensively 
describes sexual conduct without artistic, political or literary 
standards, when it is judged by the contemporary community standards. 
It appears that Justice Barkett did not know that these Florida laws 
were based on the Miller standard. I'm particularly concerned that she 
did not even mention this important Supreme Court case in her decision.
  Finally, Justice Barkett also suffers from some troubling ethical 
problems. Serious concerns have been raised regarding her impartiality, 
specifically her actions during the deliberation on the case of 
University of Miami versus Echarte. In October 1991, the Academy of 
Florida Trial Lawyers submitted an amicus brief in this case, and 
argued that a cap on noneconomic damages in medical malpractice cases 
were unconstitutional. In 1992, this organization set up an annual 
award to be named after Judge Barkett, and she was invited to present 
the first annual award at the trial lawyers' convention in November. In 
May 1993, she dissented from the court's ruling, and followed the trial 
lawyers' argument that the caps were unconstitutional.
  Her actions in this case were inconsistent with her duty as a Justice 
to be impartial in both appearance and fact. By deciding a case in 
which an organization that had named an award after her filed a brief, 
Judge Barkett may have violated the ABA Code of Judicial Conduct. Canon 
2, subpart B of the code clearly states that a judge ``shall not lend 
the prestige of judicial office to advance the private interests of 
others; nor * * * convey the impression that they are in a special 
position to influence the judge.'' I am troubled by the fact that 
during the confirmation hearings, Justice Barkett did not see any way a 
possible appearance of an ethical lapse.
  In conclusion, Mr. President, I must regretfully oppose the 
nomination of Justice Rosemary Barkett. I am greatly concerned by the 
fact that her decisions on the death penalty seem to have more to do 
with her personal views on the subject than the dictates of the law. In 
the case of the obscenity law, I am disturbed not only by her belief 
that obscenity cannot be defined, but also by her refusal to even 
address important Federal Supreme Court precedents. Finally, her 
appearance of partiality toward one group, and her refusal to even 
acknowledge that she might have acted unethically when deliberating the 
Echarte case makes me wonder if she possesses the proper judicial 
temperament to serve as a circuit court judge.
  Mr. President, we recently passed a tough crime bill. We now need 
tough judges who will not undermine that tough legislation. I believe, 
as Senator Hatch has noted, that the President's tough-on-crime 
rhetoric will certainly be downgraded if he appoints judges, such as 
Rosemary Barkett, who will contradict his stances and go easy on 
criminals. In order to successfully carry out the war against crime, we 
must be prepared not only to have enough police to arrest the 
criminals, but we must also have enough tough judges to see that these 
criminals are brought to justice.
  Mr. President, I urge my colleagues to oppose this nomination and I 
yield the floor.
  Mr. DURENBERGER. Mr. President, I rise today to briefly explain my 
reasons for supporting the nomination of Rosemary Barkett to the U.S. 
Court of Appeals for the Eleventh Circuit.
  I have served with four Presidents during my career in the U.S. 
Senate, and I have always used the same standard to evaluate the 
nominees of each administration. The criteria I use are whether the 
nominee has the experience necessary to do the job, the temperament to 
serve honorably, and the character to be entrusted with this serious 
responsibility. After a review of Chief Justice Barkett's record, I 
believe that she deserves confirmation.
  As an opponent of capital punishment, I am probably much less 
troubled than many of my Republican colleagues about Justice Barkett's 
dissent in several capital cases. I do not believe that a lack of 
enthusiasm for the death penalty in several cases should disqualify a 
nominee from serving on the Federal bench. I respect retiring Supreme 
Court Justice Harry Blackmun for his recent renouncement of the death 
penalty, and I very much doubt that his position makes him an unfit 
jurist.
  I do not always agree with the ideology of nominees that I vote to 
confirm. I have never considered applying an ideological test to be an 
appropriate part of my duty as a Senator to advise and consent on 
Presidential nominations. I am supporting this nomination because Chief 
Justice Barkett has had a distinguished career of service on the State 
bench in Florida, and I believe that she has the experience, 
temperament, and character to serve with distinction at the Federal 
level.
  The PRESIDING OFFICER. Under the previous order, the hour of 3:15 
p.m. having arrived, the Senate will now vote on the President's 
nomination of Rosemary Barkett to be U.S. Circuit Judge for the 
Eleventh Circuit.
  Mr. BIDEN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays are ordered, and the clerk will call the roll.
  The bill clerk called the roll.
  Mr. FORD. I announce that the Senator from Colorado [Mr. Campbell] is 
necessarily absent.
  I also announce that the Senator from Alabama [Mr. Shelby] is absent 
because of illness.
  The result was announced--yeas 61, nays 37, as follows:

                       [Rollcall Vote No. 92 Ex.]

                                YEAS--61

     Akaka
     Baucus
     Biden
     Bingaman
     Boren
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Chafee
     Cohen
     Conrad
     Danforth
     Daschle
     DeConcini
     Dodd
     Dorgan
     Durenberger
     Exon
     Feingold
     Feinstein
     Ford
     Glenn
     Graham
     Harkin
     Hatfield
     Heflin
     Hollings
     Inouye
     Jeffords
     Johnston
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mack
     Mathews
     Metzenbaum
     Mikulski
     Mitchell
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Packwood
     Pell
     Pryor
     Reid
     Riegle
     Robb
     Rockefeller
     Sarbanes
     Sasser
     Simon
     Wellstone
     Wofford

                                NAYS--37

     Bennett
     Bond
     Brown
     Burns
     Byrd
     Coats
     Cochran
     Coverdell
     Craig
     D'Amato
     Dole
     Domenici
     Faircloth
     Gorton
     Gramm
     Grassley
     Gregg
     Hatch
     Helms
     Hutchison
     Kassebaum
     Kempthorne
     Lott
     Lugar
     McCain
     McConnell
     Murkowski
     Nickles
     Pressler
     Roth
     Simpson
     Smith
     Specter
     Stevens
     Thurmond
     Wallop
     Warner

                             NOT VOTING--2

     Campbell
     Shelby
       
  So the nomination was confirmed.
  Mr. DODD. Mr. President, I move to reconsider the vote by which the 
nomination was confirmed.
  Mr. GRAHAM. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________