[Congressional Record Volume 142, Number 18 (Friday, February 9, 1996)]
[Senate]
[Pages S1161-S1163]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       FEDERAL JUDGE APPOINTMENTS

  Mr. HATCH. Mr. President, as you know, I do not take the floor very 
often unless I consider it very important.
  One of the most lasting legacies of a President are the Federal 
judges he appoints for life. These judges are every bit as much a part 
of the Federal anti-crime effort as FBI and DEA agents and prosecutors.
  Mr. President, the American people are going to face stark choices on 
a range of issues in November. One of those choices will be whether we 
resume the appointment of hard-nosed Federal judges who are tougher on 
crime than we can expect from the incumbent.
  President Clinton talks about cops on the beat. Yet, he appoints some 
judges who are too willing to put criminals back on the street.
  Let me tell the American people about Timothy Sherman of Maryland. He 
was convicted in Maryland State court for the brutal shotgun murders of 
his mother and step-father. The murder occurred in the middle of the 
night when Timothy Sherman, who was 17 at the time, was at home. There 
was no indication of forced entry. Indeed, the home had an alarm 
system. The 12-gauge shotgun used in the murder belonged to the 
Shermans. Timothy Sherman's fingerprints were on the shotgun's trigger 
mechanism. A box holding five 12-gauge shotgun shells was found under 
his mattress, with two of the shells missing. The police found two 
matching expended shells that experts concluded were fired from the 
shotgun. Police found the murder weapon in the branches of a large 
tree, where the younger Sherman had hidden objects before, and which is 
located between his own house and the house of his grandparents to 
which he ran to report the killings.
  Sherman's conviction was upheld by Maryland courts and the U.S. 
Supreme Court denied certiorari. Sherman then sought to have his 
conviction overturned through a habeas corpus petition. Why? Because a 
trial juror had visited the crime scene, particularly the tree where 
the murder weapon was found. This was indeed improper. But criminal 
defendants are guaranteed a fair trial, not a perfect one. The trial 
judge found that the error was harmless and not prejudicial. The 
Federal district judge, William M. Nickerson, who heard the habeas 
claim, also found the error to be harmless, thereby upholding the 
conviction in a well reasoned opinion. Judge Nickerson is a Republican-
appointed judge, appointed by President Bush. The prisoner appealed the 
denial of the writ of habeas corpus to the fourth circuit. A Carter 
judge, Francis Murnaghan, and a Clinton district court judge sitting by 
designation, James Beaty, reversed the 

[[Page S1162]]
Federal district court judge in a per curiam opinion. These two judges 
believed that the juror's visit had so prejudiced the proceedings as to 
invalidate the conviction and they granted Sherman the right to a new 
trial.
  Judge J. Harvie Wilkinson dissented: ``In light of all the evidence 
presented at trial, [the juror's] unauthorized excursion to the crime 
scene was harmless.'' Judge Wilkinson was appointed to the fourth 
circuit by President Reagan, over vigorous opposition by the other side 
of the aisle. Indeed, the other side of the aisle conducted a 
filibuster against this nominee at the time.
  The two Republican appointed judges, then, would have rejected this 
convicted murderer's effort to overturn his conviction. The two 
Democratic-appointed judges have given him a new trial, which, if not 
undertaken within 6 months, will result in the prisoner's release.
  Not to worry, say Judges Murnaghan and Beaty: ``If the State of 
Maryland elects promptly to retry him, a jury, acting properly, may 
well again convict. It also may not, however, [convict him again] * * 
*,'' but, at least the second trial will meet their standard of 
justice, and at the taxpayers' expense.
  Fortunately, the entire fourth circuit will rehear this case. Mr. 
President, who do you think the American people would prefer to rehear 
this criminal case: a majority of judges appointed by Presidents Carter 
and Clinton, or judges appointed by Presidents Reagan and Bush? I 
should point out that President Clinton wishes to promote Judge Beaty 
to the Fourth Circuit Court of Appeals.
  Let me turn to another recent, disturbing case. The New York Times of 
January 25, 1996, tells the story of Carol Bayless, who confessed to 
charges of possession of 75 pounds of cocaine and 4.4 pounds of heroin. 
She faced a minimum sentence of 10-years in jail and as much as life 
imprisonment.
  According to the police officer's testimony, on April 21, 1995, he 
was patrolling in an unmarked car in plain clothes with his partner, 
both 10-year police veterans, in Washington Heights, an area he said 
was known as a hub for the drug trade. At about 5 a.m., he noticed Ms. 
Bayless' car, which had an out-of-State license plate, moving slowly 
down the street. She then double parked her car.
  Four unidentified males then emerged from between parked cars and 
crossed the street in single file. Ms. Bayless popped open the car's 
trunk, and the men placed two large duffel bags in the trunk and closed 
it. The police officer did not observe any conversation between the 
males and the car's driver, and the entire episode took mere seconds. 
Ms. Bayless drove off and the police officer and his partner pulled up 
behind her at a stop light. As the two officers stared at the four men, 
two of the men noticed the police officers, spoke briefly to each 
other, and split up, rapidly moving in different directions, with at 
least one of the men running from the area.
  Do my colleagues find these circumstances suspicious? The police 
officer did. He pulled Ms. Bayless over, searched the car, and found 
the nearly 80 pounds of illegal drugs.
  But according to Judge Harold Baer, Jr., appointed by President 
Clinton, the police officer is out of step and out of line. Judge Baer 
ruled that the police officer violated the Constitution's ban on 
unreasonable searches. Why? According to Judge Baer, the police officer 
did not have reason to be suspicious of the four men and Ms. Bayless. 
Oh no. Instead, according to this bleeding heart judge, the four men 
had reason to be suspicious of the police officer.
  Here is what the Judge said: ``Even before this prosecution * * * 
residents in this neighborhood tended to regard police officers as 
corrupt, abusive and violent * * * had the men not run when the cops 
began to stare at them, it would have been unusual.''
  Whose side is this judge on?
  Understandably, ``Ms. Bayless reacted with glee * * * over the ruling 
* * *'' according to the New York Times. I am absolutely sure she did. 
As a practical matter, the judge's ruling, if it stands, lets her off 
the hook--free to run more dope into the veins of our people. Her 
lawyer called Judge Baer courageous. I would say he lacks common sense 
and judgment.
  By the way, Ms. Bayless' 40-minute videotaped confession was also 
thrown out by Judge Baer because it resulted from the stopping of the 
car. In that confession, Ms. Bayless said she had made over 20 trips 
from Michigan to New York City to buy cocaine for her son and others 
beginning in 1991. Judge Baer found this drug runner's statement about 
what happened the morning of her arrest to be credible, and he rejected 
the police officer's testimony.

  The President speaks about cops on the beat. This police officer was 
on the beat. He was risking his life on behalf of decent, law abiding 
citizens in Washington Heights and for all of us. He made a good 
arrest. He took nearly 80 pounds of deadly dope off the street, worth--
well, it is incalculable how much that 80 pounds is worth.
  But what is the use of cops on the beat if the President appoints 
soft-headed judges who let the criminals they catch back on the 
street? It just seems a waste of taxpayers' money. We might as well 
just let them do whatever they want to do. At least that is the 
conclusion one would draw from what Judge Baer did in this case.

  I, for one, hope the U.S. attorney in this area appeals this 
decision, and I am going to be burned up if he does not.
  In 1994, by a vote of 61 to 37, the Senate confirmed a Florida State 
judge, Rosemary Barkett, for the eleventh circuit, that no Republican 
would have appointed to the Federal bench.
  Time and again, Judge Barkett, as a State judge, erroneously came 
down on the side of lawbreakers and against police officers and law 
enforcement. The full record of my concerns is set forth in the March 
22, 1994, Congressional Record. But I cannot refrain from reminding my 
colleagues of one shocking and outrageous dissent she joined in a 
brutal murder case, in which she would have reduced a vicious killer's 
death penalty to life imprisonment, with eligibility for parole in 25 
years.
  Dougan versus Florida involved a terrible, racially motivated murder. 
The killer bragged about the murder in tape recordings which he mailed 
to the victim's mother. The dissent which Judge Barkett joined had the 
gall to say, in part:

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

  This opinion reeks of moral relativism and excuse making that is 
totally unacceptable in a judge. And this opinion, which she joined, is 
just the tip of the iceberg regarding Judge Barkett's very liberal 
record as a State judge. Yet, President Clinton found her record to be 
within his mainstream and promoted her to an important judgeship.
  Why is this so important? Why am I raising cain here today? As a 
practical matter, the Senate gives--and certainly I give--every 
President deference in confirming judicial candidates nominated by the 
President. A Republican President would not nominate the same judges 
that a Democrat would, and vice versa. Although the Senate has a 
constitutional duty to advise and consent to the nominees, the Senate, 
as a practical matter, gives the President leeway. The President has 
been elected by the whole country and, while this President has been 
unable to put all of his choices on the bench, he has filled many 
judgeships, as have his predecessors. We on the Judiciary Committee 
have gone along with him because we want to give this President 
deference. He did win the election. But let us not miss the point of 
this. We have to be concerned about what kind of judges this President 
is going to appoint.

  I respectfully submit, therefore, that the American people must bear 
in mind that when they elect a President, they get his judges too--and 
not just for 4 years, but for life.
  And, while the Senate has served as a check on the President, there 
is no substitute for holding, and exercising, the power to nominate 
Federal judges.
  Indicia of judicial activism or a soft-on-crime outlook are not 
always 

[[Page S1163]]
present in a nominee's record. Not every nominee who turns out to be a 
judicial activist or soft on crime can be ferreted out in the 
confirmation process. Indeed, as I mentioned earlier, every President 
is able to obtain confirmation of most of his nominees.
  The general judicial philosophy of nominees to the Federal bench 
reflects the general judicial philosophy of the person occupying the 
White House--the Oval office, if you will. And differences in judicial 
philosophy have real consequences for the safety of Americans in their 
streets, homes, and workplaces.
  I want to say that I believe the next President of the United States, 
whether it be President Clinton or whoever, is probably going to have 
the opportunity to nominate at least two Supreme Court Justices, maybe 
three. If President Clinton is reelected, he will have appointed better 
than 50 percent of the total Federal judiciary. It is something we all 
have to think about. I decry these kind of decisions made by the 
Clinton judges that I have named so far, and Carter judges--one.
  I believe you could probably point out deficiencies in judges of 
every President. But I am really concerned, in this day of rampant 
criminal activity, with the flood of drugs into our society, that we 
have judges who are being appointed on a daily basis who have a 
philosophy like Judge Barkett's, who do not blame the acts of these 
criminals on themselves but blame them on society, blame them on their 
environment, on anything but their own volition and their own desire to 
do wrong.
  I believe there are wrongs in our society. I believe that there are 
injustices. I believe that there is still discrimination in our society 
against certain people. I believe these things are wrong.
  On the other hand, when people who are not insane commit heinous 
murders and heinous crimes and are spreading drugs among our young 
people and are destroying the youth of this Nation and doing it with 
full intent to do so and to profit from their decisions, or because 
they are murderers, then I think we ought to come down pretty doggone 
hard on them; that is, if we want to have a civil, humane, free, and 
fair society.
  I will have more to say about these judges in the future, but I have 
become so alarmed about some of these decisions that I just felt I had 
to come to the floor today and make this point, since we on the 
Judiciary Committee have this very important honor of working with 
these judges. I do not think anybody can say that I have not done my 
very best to try to accommodate this administration, to try to help 
them in the appointment of judges. I am going to continue to do that as 
long as I can. I want to be fair to this President.
  On the other hand, these type of judges are giving me the chills, and 
I think they are giving the American people the chills as well. We have 
to consider just who we want appointing these judges in the future.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.

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