[Congressional Record Volume 142, Number 42 (Monday, March 25, 1996)]
[Senate]
[Pages S2790-S2792]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           JUDICIAL SELECTION

  Mr. HATCH. Mr. President, I rise to address an issue that I have 
discussed recently before the Senate: judicial selection. As I have 
said before, differences in judicial philosophy can have real and 
profound consequences for the safety of Americans in their 
neighborhoods homes and workplaces. Judges are every bit as much a part 
of the Federal anticrime effort as are U.S. attorneys and FBI and DEA 
agents.
  In my last speech, I drew attention to two Federal district judges 
appointed by President Clinton--Judges Harold Baer, Jr. and James 
Beaty. These two judges rendered decisions favorable to criminal 
defendants based on legal technicalities that had nothing to do with 
their guilt.
  Judge Baer sparked outrage throughout the Nation when he suppressed 
evidence seized during the stop of an automobile by police who had 
witnessed four men drop off two bags in the trunk at 5 a.m., without 
speaking to the driver, and who then rapidly left the scene when they 
saw a police officer looking at them. The bags turned out to contain 
about 80 pounds of drugs. Judge Beaty has received similar criticism 
for releasing a man who murdered his parents in their own bed because a 
juror had gone to look at a tree where the murder weapon was found.
  I was pleased to learn that President Clinton is upset about Judge 
Baer's outrageous decision. He even momentarily suggested, through his 
press secretary, that the judge should resign if he does not reverse 
himself. But President Clinton concern is too little, too late. He 
should have been more concerned when he nominated this individual to 
lifetime tenure as a Federal judge. A mistake here lasts a lifetime, 
not just 4 years. Judge Baer is one of President Clinton's lasting 
legacies.
  And the President's concern comes only after I and many others have 
criticized the decision literally for weeks.
  The President talks about putting cops on the beat, yet he appoints 
judges who are putting criminals back on the street.
  Now that the American people are suffering from the consequences of 
this administration's judicial nominations, President Clinton's initial 
solution was to call upon Judge Baer to resign. This was a meaningless 
gesture that has no practical effect because the only way to remove a 
judge is to impeach him. President Clinton is now left to hoping Judge 
Baer will reverse himself. The true check on these solf-on-crime 
judicial activists is to never appoint them in the first place.
  Let me be clear, I did not call for Judge Baer's resignation. I 
simply pointed out that there is no substitute for the sound exercise 
of the President's power to appoint judges to lifetime positions.
  Let me assure my colleagues, Judge Baer is not the only judge 
appointed since January, 1993 that, in my view, President Clinton 
should feel misgivings about.
  Will the President chastise Judge Beaty, or does he agree with his 
decision to release a convicted double murderer on a technicality? I am 
not alone in my criticism of Judge Beaty--the Wall Street Journal has 
said that Judge Beaty and his Carter-appointed colleague took ``a view 
of defendants' rights that is so expansive that they are willing to put 
a murderer back out on the streets because a juror took a look at a 
tree.'' The entire fourth circuit has voted to grant en banc review of 
the case, and I fully expect the court to do the right thing and 
reverse Judge Beaty's misguided opinion.
  But President Clinton has not called upon Judge Beaty to resign. 
Instead, he is rewarding Judge Beaty by promoting him. He has nominated 
Judge Beaty to the fourth circuit. While the President cannot force 
activist, soft-on-crime judges to resign, he can choose to keep them 
where they are instead of promoting them to the appellate courts, where 
they can do even more damage to the law and to our communities. Will 
President Clinton regret Judge Beaty's soft-on-crime decisions if they 
start to issue from the fourth circuit? Will he then suggest that Judge 
Beaty resign? Perhaps he ought to withdraw that nomination--it is in is 
power to do so, removing Judge Baer is not.
  To be sure, Republican appointed judges can make erroneous rulings. 
And, I understand the Clinton administration is on a desperate damage 
control mission to mention such rulings. That is fine by me, because 
the more information about the track records of Republican and 
Democratic appointed judges, the better.
  I hardly agree with every decision of a Republican appointed judge. 
Nor do I disagree with every decision of a Democratic appointed judge.
  Nevertheless, there can be little doubt that judges appointed by 
Republican Presidents will be generally tougher on crime than 
Democratic appointees. As I will explain in this and subsequent 
speeches, on the whole judges appointed by Democrat Presidents are 
invariably more activist and more sympathetic to criminal rights than 
the great majority of judges appointed by Republican Presidents.
  I does little good to ask these judges to resign or to chastise them 
after they have inflicted harm upon the law and upon the rights of our 
communities to protect themselves from crime, violence, and drugs. 
President Clinton's momentary resignation gesture is only the latest 
example of this administration's eagerness to flip-flop wherever it 
meets a stiff breeze of public disapproval of its actions.
  And what excuse, Mr. President, does President Clinton have for the 
nomination of Judge J. Lee Sarokin of the U.S. Court of Appeals for the 
Third Circuit, and Judge Rosemary Barkett of the U.S. Court of Appeals 
for the Eleventh Circuit? These are two of the most activist friends of 
criminal rights on our Federal courts of appeals. Their judicial track 
records were crystal clear at the time President Clinton appointed 
them. The President nominated Judges Sarokin and Barkett with full 
knowledge of their records.
  I will have more to say about these two judges in the future, but let 
me remind the Senate and the American people that I led the opposition 
to these two nominees because of their activist, soft-on-crime 
approach. The Clinton administration fought hard to get these nominees 
through the Judiciary Committee and through the Senate, which confirmed 
both Judge Sarokin and Judge Barkett in 1994.
  I regret to say that my predictions about these two judges have been 
proven correct. Judge Sarokin has repeatedly come down on the side of 
criminals and prisoners in a series of cases, and he recently voted to 
overturn the death sentences of two Delaware men who, in separate 
cases, killed several elderly people. Not to be outdone by her New 
Jersey colleague, Judge Barkett has continued her tolerant attitude 
toward drugs in our society and her suspicion of the police. Just last 
month she argued in an opinion that police could not conduct random 
roadblocks to prevent traffic violations and to search for drugs--in 
her words the searches were ``intolerable and unreasonable.''
  Luckily, in both of the cases that I have just mentioned, Reagan and 
Bush appointees formed a majority of the court and ensured that Judges 
Sarokin and Barkett's views were made known as dissents. But if Judges 
Sarokin and Barkett and other Clinton nominees had formed a majority on 
those courts, they would have put the criminals back on the street. If 
President Clinton should win a second term, he will appoint a majority 
of the judges on the Federal courts of appeals. Judges Barkett and 
Sarokin provide a clear

[[Page S2791]]

example of what we can expect from the Federal courts should President 
Clinton appoint judges for 4 more years.
  Can the administration name any Reagan or Bush appellate judges who 
have argued so often and so vigorously in favor of elevating criminal 
rights above the right of the community to protect itself? I don't 
think they can. In fact, the record indicates that the current 
administration has nominated several judges who have ruled in favor of 
criminals or prisoners clearly and consistently. When they are right, 
that is fine. In most of these cases they are wrong.
  For example, let me tell the American people about the case of United 
States v. Hamrick, [43 F.3d 877 (CA4 1995) (en banc)]. While serving 
time in Federal prison for threatening to kill President Reagan, 
defendant Rodney Hamrick built several improvised bombs, threatened to 
destroy a Federal building, shot other inmates with improvised guns, 
and threatened to kill Federal judges. While serving his various 
sentences, Hamrick built a letter bomb of materials available in prison 
that, in the words of Judge Michael Luttig's opinion for the fourth 
circuit, if fully effective could have produced a 1,000-degree fireball 
up to 3 feet in diameter. This fireball would have burned the skin and 
eyes of anyone exposed to it. If those exposed were inhaling when the 
bomb detonated, the fireball could have seared their lungs, possibly 
resulting in death.
  Hamrick sent the bomb to William Kolibash, the U.S. attorney for the 
Northern District of West Virginia, whose office was responsible for 
Hamrick's prosecution. Kolibash opened the package, but the bomb was 
faulty and only scorched the package instead of detonating. Hamrick put 
his own return address on the envelope, making his arrest an easy 
matter since he was in prison. Hamrick confessed and stated that he 
intended the bomb to go off in retaliation for his prosecution.
  Hamrick was convicted by a jury of assault of a U.S. attorney with a 
deadly or dangerous weapon under 18 U.S. Sec. 111(b). Relying upon 
applicable Supreme Court precedent, Judge Luttig affirmed the 
conviction for the en banc fourth circuit. He was joined by Judges 
Russell, Widener, Wilkinson, Wilkins, Niemeyer, and Williams. Judge 
Hamilton wrote a concurring opinion. All of these judges were appointed 
by Republican Presidents.
  Judge Ervin, then chief judge and an appointee of President Carter, 
wrote the dissent. He was joined by every Democratic appointed judge on 
the circuit in arguing that because the bomb was made badly, it could 
not constitute a deadly or dangerous weapon under the statute. Judge 
Blane Michael, President Clinton's appointment to the fourth circuit, 
joined this illogical, unreasonable decision. He joined Chief Judge 
Ervin's conclusion that because the bomb lacked an igniter, it could 
not be called a dysfunctional bomb, as the majority concluded, but 
instead was, in the dissent's phrase, an ``incomplete bomb,'' and hence 
could not be a dangerous weapon under the statute. Goodness gracious. 
What if it had been a real bomb?
  Mr. President, I imagine that Judge Ervin and Judge Michael also 
would think that if a defendant pointed a gun at you or me and pulled 
the trigger, but the gun is defective and doesn't fire, the defendant 
would not be guilty of attempted murder because he used an incomplete 
gun. Such sophistic word games demonstrate the eagerness of Judge 
Michael and his dissenting colleagues to protect criminals at the 
expense of law enforcement.
  Even once the criminals are convicted and sent to prison, the judges 
nominated by President Clinton continue to adopt a tolerant attitude. 
These judges are determined to defend prisoners against the rights of 
society to defend itself from violent crime. These judges should be 
more concerned about the rights of society to incarcerate convicted 
criminals and to run orderly prisons before they start wringing their 
hands about how unfair a punishment it is to be in jail.
  On this score, let me just identify one decision out of many that 
exemplifies the willingness of some activist Clinton judges to protect 
those who have harmed and attacked our society. Let me tell the 
American people about Giano versus Senkowski, a case in which an inmate 
brought a Federal civil right suit against a prison that refused to 
allow inmates to possess sexually explicit photographs of spouses or 
girlfriends. The plaintiff somehow felt that his first amendment rights 
were violated. It is a demonstration of how far activist judges have 
already expanded the laws that a prisoner can even bring a lawsuit on 
such a frivolous claim.
  The majority, Judges Joseph McLauglin and Dennis Jacobs, both Bush 
appointees, properly rejected the prisoner's amazing claim that this 
policy violated his first amendment rights. Under Supreme Court 
precedent, courts are to uphold prison regulations if they are 
reasonably related to a legitimate penological interest. This was the 
case here, especially in light of the duty of the Federal courts to 
grant prison administrators discretion to run their prisons in a safe, 
efficient, and orderly way. Convicted criminals are in prison for a 
reason: punishment. Sometimes, activist judges forget this simple fact.
  Unfortunately, Judge Guido Calabresi, a former dean of the Yale Law 
School who President Clinton appointed to the second circuit, 
disagreed. He dissented from the majority and asserted that the first 
amendment provides prisoners with the right to possess such sexually 
explicit photographs. Judge Calabresi even went so far as to compare 
his position with the position of the Supreme Court in the Pentagon 
Papers case, as examples of instances in which the courts courageously 
resisted scare tactics in the absence of proof.
  What the first amendment's plain words--``Congress shall make no law 
abridging the freedom of speech, or of the press''--has to do with 
convicted prisoners prossessing sexually explicit pictures is beyond 
me.
  Judge Calabresi argued that the case should be sent back for 
factfinding--what this factfinding would be I do not want to know--
because he thought it possible that these pictures might diminish 
violence by mollifying prisoners. Gee. What reasoning. Judge Calabresi 
also saw fit to suggest several alternative policies, such as allowing 
inmates to be sent photographs but providing that the pictures may be 
seen only at appointed places, or allowing photographs to be received 
and seen for a brief time before they must be returned.
  It is exactly this intrusiveness that demonstrates the activist 
stance of the Clinton judiciary. Here we have a Federal judge of the 
Second Circuit Court of Appeals deciding what policies a prison ought 
to have regarding sexually explicit photographs. The judge wants 
factfinding conducted to produce evidence about the link between such 
photographs and violence. He has ideas about how the pictures are to be 
provided and used. I am sorry, but this seems like a job for prison 
administrators, who are expert at these issues and who are accountable 
to the people. It is the people, after all, who must pay for the costs 
of incarceration and who ultimately must fund the fanciful policies 
Judge Calabresi would impose.
  Why is this so important? As a practical matter, we in the Senate 
give the President deference in confirming judicial candidates 
nominated by the President.
  No one can say that I have not been at the forefront to giving 
deference to this President. I like him personally. I want to help him. 
I certainly believe he was elected and I believe he has a right to 
nominate these judges. I might say though that a Republican President 
would not nominate the same judges that a Democrat would and vice 
versa.
  Indicia of judicial activism or a soft-on-crime outlook are not 
always present in a nominee's record. But in the cases of Judge Sarokin 
and Barkett, they were, and we Republicans in the Senate attempted to 
defeat them on those grounds.
  We also now can view the products of the President's choices. We do 
not just have two trial judges, Judges Baer and Beaty, who have trouble 
understanding the role of the Federal courts in law enforcement and in 
the war on crime. President Clinton has sent judicial activists to 
Federal appellate courts as well, and the effects of his approach to 
judicial selection are felt even at a court as high as the Supreme 
Court. This is not good for the Nation, which

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must live under the permissive rules set by these liberal judges when 
they attempt to rid our streets of crime and drugs.
  The judicial philosophy of nominees to the Federal bench generally 
reflects the judicial philosophy of the person occupying the Oval 
Office. We in Congress have sought to restore and strengthen our 
Nation's war on crime and on drugs and to guarantee the safety of 
Americans in their streets, homes, and workplaces. For all of the 
President's tough-on-crime rhetoric, his judicial nominations too often 
undermine the fight against crime and drugs.
  This is an important issue. It may be the single most important issue 
in the next Presidential campaign. Frankly, I hope everybody in America 
will give some thought to it because I for one am tired of having these 
soft-on-crime judges on the bench. I for one am tired of having people 
who, as activists, do not understand the nature and role of judging, 
which is that judges are to interpret the laws that are made by those 
who are elected to make them. Judges are not elected to anything. They 
are nominated and confirmed for life. Hopefully, they will be removed 
from the pressures of politics and will be able to do what is right. I 
have to say that many of these judges are very sincere. They are kind-
hearted, decent, honorable people who are so softhearted that they just 
do not see why we have to punish people because of the crimes they 
commit, or why we have to be as tough as we have to be. But those of us 
who really study these areas know that if a person is put in jail--a 
violent criminal--until they are 50 years of age there is a very high 
propensity that they will never commit violence after 50. But if we 
have them going in and out of the doors in those early years when they 
are violent criminals, they just go from one violent crime to the next, 
and society is the loser. We understand that here in the District of 
Columbia, which is sometimes known as ``Murder Capital U.S.A.'' and 
``Drug Capital U.S.A.'' That needs to be cleaned up.
  That is why I put $20 million in a recent bill to give directly to 
the chief of police here so that they can acquire the necessary cars 
and weapons and ammunition and other facilities that they need to be 
able to run a better police force. Consider that it was the best police 
force in the Nation 20 years ago; today it is the worst in the Nation. 
So we put our money where our mouth is, at least as far as the Senate 
is concerned. I hope that money stays in in the House.
  We have to pay attention where judges are concerned, too. We have to 
get people who really are going to make a difference against the 
criminal conduct in our society. I am fed up with our streets not being 
safe. I am fed up with our homes not even being safe. We are becoming a 
people who have to lock the doors every time we turn around, and I for 
one think it is time to stop it.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The absence of a quorum has been noted. The 
clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered. The Senator from Alaska is recognized.
  Mr. MURKOWSKI. I thank the Chair.

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