[Congressional Record Volume 142, Number 46 (Friday, March 29, 1996)]
[Senate]
[Pages S3177-S3181]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           JUDICIAL SELECTION

  Mr. HATCH. Mr. President, I rise to address a subject that I have 
discussed several times in the past few weeks, and that is the issue of 
judicial selection. As I said in those speeches, differences in 
judicial philosophy can have real and profound consequences for the 
safety of Americans in their neighborhoods, homes, and workplaces. 
Sound judging is every bit as much a part of the Federal anticrime 
effort as FBI and DEA agents and prosecutors.

[[Page S3178]]

  It does the Nation little good to put more cops on the beat if judges 
put the criminals back on the street. And, I might add, the President 
overstates the number of police that the Federal Government is helping 
put on the street.
  I see that the President has attempted this week to respond to my 
speeches through his subordinates. One argument, made by his former 
White House counsel, maintains that it is really the home State 
Senators who appoint judges. This argument is just another example of 
the President attempting to hide from the consequences of his 
decisions. The last time that I looked in the Constitution, it stated 
that the President ``shall nominate, and by and with the Advice and 
Consent of the Senate, shall appoint . . . Judges.'' Presidents may 
look to individual Senators to recommend good nominees in each State, 
but the Constitution itself makes clear that the choice of judges is 
the President's responsibility and the President's alone.
  I do agree with one thing that Lloyd Cutler said in his Washington 
Post op-ed. It sometimes is difficult to predict what nominees will be 
like once they ascend to the Federal bench. While the executive branch, 
as Mr. Cutler said, has ``an extensive vetting process,'' we in the 
Senate do not. For the most part, a President's nominees usually are 
confirmed by the Senate. When the people elect a President, they put 
into office with him his judicial philosophy and the judges he will 
appoint. But perhaps the Senate does need to spend more resources 
vetting nominees. Perhaps the Senate should interview each and every 
judicial nominee as a matter of routine, if Lloyd Cutler is right.
  Another argument made by President Clinton's current White House 
counsel, Jack Quinn, is that there are soft-on-crime decisions by 
judges appointed by Presidents Reagan and Bush. As I said on Monday, I 
do not agree with every decision by a Republican-appointed judge or 
disagree with every decision by a Democrat-appointed judge. Moreover, 
we all know that prosecutors and police sometimes go over the line, and 
that it is the job of state and federal judges to correct those 
mistakes. Unfortunately, sometimes those decisions will benefit 
criminals that we all know to be guilty.
  But what we are talking about here are not a few isolated cases or 
incidents. We are talking about track records: about the fact that 
judges appointed by Democrat Presidents, and President Clinton in 
particular, generally will be softer-on-crime and will be more likely 
to follow an activist judicial philosophy than judges appointed by 
Republican Presidents. Just as President Johnson appointed Judge J. 
Skelly Wright to the D.C. Circuit, a notorious judicial activist, and 
President Carter appointed, among many others, Judge Stephan Reinhardt 
of the ninth circuit, a judge who is so activist that the Supreme Court 
regularly overturns his decisions, so has President Clinton appointed 
judges such as Judges Baer and Beaty, Judges Michael and Calabresi, and 
Judges Sarokin and Barkett, whom I will discuss today.
  The President seems to think that it is wrong to evaluate the 
decisions of these judges. ``The point is that it is unfair to evaluate 
any judge on the basis of any single case,'' writes his counsel in the 
Wall Street Journal. I disagree. It is only by reading the opinions of 
these judges that we can make a determination of the kinds of men and 
women that President Clinton has chosen to send to the Federal bench. 
Let me also be clear that it is not the result of an individual case 
that is the problem. The problem with these Clinton judges is the way 
they reach their decisions--their willingness, perhaps even eagerness, 
to stretch the law, to expand criminal rights at the expense of the 
community, to seize on petty technicalities to release defendants, to 
find new constitutional rights where there were none before. Many of 
these judges are activists who simply cannot understand that their role 
as is to interpret the law, not to make it.

  But the President's approach--that once a judge is on the bench, and 
you cannot read his or her opinions--is a convenient one. It is the 
only way that he can explain his decision to appoint Judge H. Lee 
Sarokin to the U.S. Court of Appeals for the Third Circuit and Judge 
Rosemary Barkett to the U.S. Court of Appeals for the Eleventh Circuit. 
These were judges with crystal-clear track records of being liberal, 
soft-on-crime activists, when President Clinton appointed them. These 
two judges, who sit on the second most powerful courts in the land, 
have displayed an undue and excessive sympathy for the criminals who 
are destroying our society and who are all too willing to impose their 
own moral beliefs onto the law and onto our communities.
  I led the fight to oppose the confirmation of these two judges 
because their judicial records indicated that they would be activists 
who would legislate from the bench. Senators from both sides of the 
aisle joined me in that fight. I regret to conclude that we have been 
proven right in our predictions of their activism on the Federal bench.
  Let us look at what Judge Sarokin has been up to since President 
Clinton chose to elevate him in 1994. The Senate confirmed his 
nomination 63-35--a pretty large vote against him--on October 4, 1994. 
I think that it is safe to say that no Republican President would have 
nominated a judge like Judge Sarokin, and that if the Republicans had 
control of the Senate in 1994, Judge Sarokin would never have been 
confirmed.
  Let me tell the American people about the cases of William Henry 
Flamer and Billie Bailey, which were heard by the third circuit late 
last year. Delaware versus Flamer; Delaware versus Bailey. This was a 
case involving two multiple murders in which Judge Sarokin voted to 
overturn a jury's imposition of the death penalty.
  In the Flamer case, on a snowy February 7, 1979, at 8:00 a.m. in the 
morning, Arthur Smith, the 35-year old son of Alberta and Byard Smith, 
walked across the street to his parents' house in Delaware. He found 
them sprawled on the living room floor obviously murdered in cold 
blood. Both parents died of multiple stab wounds in the head and neck. 
The medical examiner counted 79 wounds on Mr. Smith's body and 66 
wounds on Mrs. Smith's body.
  Their car was stolen, a television was missing, chairs were 
overturned, bags of frozen food were strewn about, and Mr. Smith's 
pockets were turned inside out. The son--can you imagine what it must 
be like for a son to discover such violence to his parents in their own 
home--called the police.
  Eyewitnesses indicated that William Henry Flamer, whose mother was 
Mrs. Smith's half-sister, might be the killer. Police went to his 
family's residence and found the missing television, frozen food 
similar to that strewn about the Smiths' home, and a bayonet with dried 
blood stains on the blade. When police arrested Flamer, they found 
blood on his fingernails and coat and fresh scratches on his neck and 
chest.
  After he had been read his Miranda rights numerous times and after 
his arraignment, Flamer confessed. He told police that he and another 
man brought a knife, the bayonet, and a shotgun, and that he had told 
Mrs. Smith, his aunt, that his grandmother had experienced a stroke and 
was missing in order to gain entrance to the Smiths' home.
  In early 1980, a jury convicted Flamer of two charges of 
intentionally causing the death of another person and two charges of 
felony murder. A jury then sentenced Flamer to death because of several 
aggravating sentencing factors, such as Flamer's prior criminal record, 
the age of his two victims, the frailty of his aunt Mrs. Smith, and his 
exploitation of his aunt and uncle's trust in order to gain entrance to 
their home.
  Flamer had the opportunity to challenge both his conviction and his 
sentence on direct appeal. The Delaware Supreme Court rejected his 
appeal and the U.S. Supreme Court denied certiorari in his case twice. 
Flamer filed for post-conviction relief in State court, but his 
petitions were denied. Nevertheless, Flamer filed a habeas petition in 
Federal district court alleging a number of trial errors. Judge Joseph 
Farman of the U.S. District Court for the District of Delaware, who was 
appointed by President Reagan in 1985, dismissed the petition. Flamer 
appealed to the Third Circuit Court of Appeals.
  The third circuit consolidated Flamer's appeal with that of Billie 
Bailey, another multiple murderer convicted by the Delaware state 
courts.
  Bailey had been assigned to a work release facility in Wilmington, 
but he

[[Page S3179]]

escaped and then proceeded to rob a package store at gunpoint. He 
received a ride to Lambertson's Corner, 1\1/2\ miles away from the 
store. Bailey then entered the farmhouse of Gilbert Lambertson, who was 
80 years old, and of his wife, Clara Lambertson, who was 73. Bailey 
shot Mr. Lambertson twice in the chest with his pistol and once in the 
head with the Lambertsons' shotgun. He shot Mrs. Lambertson in the 
shoulder with the pistol and in the abdomen and neck with the shotgun. 
Both Lambertsons died. Bailey fled from the scene but was spotted by a 
police helicopter. He shot at the helicopter, but was apprehended.
  Bailey was convicted of murder and was sentenced by a jury to death. 
The jury found that two factors--that the defendant's conduct had 
resulted in the deaths of two persons where the deaths were a probable 
consequence of the defendant's conduct; and that the murders were 
outrageous or wantonly vile, horrible, or inhuman--and they in turn 
supported the imposition of death. Bailey appealed, but the Delaware 
Supreme Court affirmed the conviction and the sentence, and the U.S. 
Supreme Court denied certiorari.
  Like Flamer, Bailey filed a writ of habeas corpus in Federal district 
court, claiming that the jury had considered improper factors when 
imposing the death sentence. Judge Roderick McKelvie, a Bush appointee, 
denied the writ.
  On appeal before the entire third circuit sitting en banc, Flamer and 
Bailey argued that the imposition of the death penalty was 
unconstitutional because the juries had considered an invalid factor: 
whether the murders were wantonly vile, horrible, or inhuman. It is 
true that the Supreme Court had held that such a factor is so vague as 
to be unconstitutional. But in the case of Zant v. Stephens in 1983, 
462 U.S. 862 (1983), the Supreme Court also held that so long as the 
jury's capital sentence was also based on other, legitimate 
considerations, then the death penalty is not unconstitutional.
  This, of course, was precisely the case with both Flamer and Bailey. 
In both situations, the juries had found that other factors, such as 
Flamer's commission of the murder in the course of a robbery, also 
justified the death penalty. As a result, a majority of the third 
circuit affirmed the convictions.
  Let me add that no one challenged the finding that either Flamer or 
Bailey committed the horrendous murders. No one showed that either jury 
was biased or had reached the wrong result. Instead, the defendants 
were using the writ to raise technical objections in the hopes of 
delaying the rightful execution of the death penalty. It is abuses of 
the writ such as these that lead the American people to believe that 
something is wrong with our courts. It is abuses like these that lead 
the American people to demand habeas corpus reform.
  The American people's belief would only be confirmed if they read the 
Flamer and Bailey case, because Judge Sarokin was in dissent. Judge 
Sarokin believed that the defendants had received an unfair trial, even 
though they had both had the opportunity to fully appeal all the way to 
the U.S. Supreme Court. He argued that the judge's instructions and 
interrogatories asking the jury what factors they relied upon in 
reaching their decision had ``shifted the neutral balance contemplated 
under the statute and with it, the scales of justice as well.''
  According to Judge Sarokin, State judges cannot ask juries why they 
imposed the death penalty, even though judges do this to ensure that 
the juries were unbiased. In Judge Sarokin's mind, for judges to ask 
jurors this commonsense question renders the whole process 
unconstitutional.
  The eighth amendment says only that ``Excessive bail shall not be 
required, nor excessive fines imposed, nor cruel or unusual punishments 
inflicted.''
  Further, Judge Sarokin argued that allowing juries to consider the 
invalid vile, horrible, and inhuman factor--and who can doubt that 
these murders were utterly heinous--so infected the juries' 
considerations as to render them unconstitutional. He reached this 
conclusion despite the Supreme Court's clear holding in Zant that 
consideration of one invalid factor does not make the whole decision 
unconstitutional.
  By a 10 to 4 vote, the majority on the court reached the right 
result, because the Constitution guarantees a fair trial, not a perfect 
one. Allowing defendants to win reversals on technicalities even when 
no one disputes that the defendant is guilty and deserves the death 
penalty would truly undermine the public's faith in our criminal 
justice system. As the Supreme Court has said many times, and as the 
majority recognized in Flamer, a harmless error does not render a trial 
unconstitutional, and there was no showing in this case that any error 
had influenced the jury's verdict or caused the defendant's any 
prejudice.
  If one needed any more confirmation that Judge Sarokin was wrong, one 
need only look to the epilogue of the Flamer and Bailey story. Both 
defendants appealed directly to the U.S. Supreme Court again. The Court 
refused to grant certiorari in either the Bailey or the Flamer cases, 
and the Court refused to stay their executions. Both men were executed 
in late January 1996. Certainly the U.S. Supreme Court thought little 
of Judge Sarokin's dissent. Unlike Judge Sarokin, the Justices of the 
Supreme Court thought enough was enough and that it was time to allow 
the State of Delaware to operate its own criminal justice system.
  But Judge Sarokin was willing to overturn the considered judgments of 
the juries, of the Delaware Supreme Court, of the U.S. Supreme Court, 
of two Federal district court judges, and of the majority of his 
colleagues, because the jury did not think about the death penalty the 
way he wanted them to, and because the judge asked the jury a 
question. Judge Sarokin believes that Federal judges have a roving 
mandate to interfere in the operation of the State criminal justice 
system, just because he found a technicality that no one showed had any 
influence on the outcome of the trial.

  Judge Sarokin suffers from the same problem that Judges Beaty and 
Baer do--an inability to understand their role as judges. They have not 
been appointed as Federal judges to legislate from their benches or to 
act as philosopher-kings. If Judge Sarokin does not like the way that 
Delaware has chosen to operate its criminal justice system, then he 
should be running for Governor of the State--but the last place he 
should be imposing his policy views is from the Federal bench.
  Of course, as I said earlier, judicial activism of this sort is not 
restricted solely to judges appointed by Democratic Presidents. In the 
Flamer case, Judge Timothy Lewis, who was appointed in the waning days 
of the Bush administration, also argued that the capital sentences 
should be overturned. Judge Lewis agreed with Judge Sarokin that the 
consideration of the invalid factor had an injurious effect on the 
defendant, even though no such influence on the verdict was shown, and 
that the judge's interrogatories prejudiced the jury. Judge Lewis also 
questioned why, quoting Justice Blackmun, ``We should no longer tinker 
with the machinery of death.'' He called the Nation's system of capital 
punishment cluttered and confusing and ultimately questioned whether it 
comported with fundamental principles of liberty and due process.
  While one Reagan judge, Judge Carol Mansmann, also joined Judge 
Lewis, it should be noted that the rest of the Reagan-Bush appointees, 
joined by one Carter judge, correctly upheld the imposition of the 
death penalty. The two judges appointed by President Clinton--Judges 
Sarokin and McKee--did not. I believe that Judges Lewis and Mansmann 
were wrong, just as Judge Sarokin was wrong. But I believe that their 
mistake is not representative of a pattern and practice of activism, as 
it is on the part of Judge Sarokin.
  If there can be any more doubt about the activist character of Judge 
Sarokin, one can find proof in his other opinions. Although I do not 
have the time to discuss other decisions in detail, I would just note 
the case of United States v. Baird [63 F.3d 1213 (CA3 1995)].
  In Baird, Judge Sarokin, dissenting, argued that administrative 
forfeiture of drug proceeds preclude criminals from being prosecuted 
under the double jeopardy clause. That case involved the seizure of a 
criminal's drug factory, drug stockpiles, and ill-gotten drug proceeds, 
in the amount of $2,582. The

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Drug Enforcement Administration carried out an administrative 
forfeiture of the drug proceeds.
  Following the DEA's administrative forfeiture, Baird was then 
indicted for a variety of Federal drug and drug-related crimes. For 
Judge Sarokin, the administrative forfeiture was enough to opine that 
if Baird, the drug-producer, had owned the money, then the first 
proceeding was enough to bar the Government from prosecuting him for 
the drug crimes.
  Judge Sarokin relied on a Supreme Court case, Austin versus United 
States, that did not even apply to the double jeopardy context. Judge 
Sarokin showed a willingness to stretch Supreme Court precedent beyond 
its proper bounds and to read the double jeopardy clause expansively at 
the expense of law enforcement, and to the benefit of illegal 
drugmakers and dealers. Incidentally, Baird never even claimed 
ownership of the money, making Judge Sarokin's result all the more 
strange.
  In Judge Sarokin's strange universe, if the Government convicts a 
criminal of drug selling, it cannot require the criminal to forfeit the 
money made through his illegal activity; but if the Government first 
tries to forfeit the proceeds, then it cannot prosecute the drug 
seller. Again, Judge Sarokin has shown a willingness to interpret the 
Constitution expansively to defeat society's legitimate interest in 
combating crime and maintaining public health and safety.
  Judge Sarokin, who I understand will soon be taking senior status, is 
perhaps second only to Judge Barkett in his continuation of an 
activist, soft-on-crime approach upon reaching the Federal bench. In 
1994, by a vote of 61 to 37, the Senate confirmed Judge Barkett--a 
nominee that no Republican would have appointed to the Federal bench. I 
opposed her nomination because, time and again, Judge Barkett as a 
member of the Florida Supreme Court erroneously had favored lawbreakers 
and criminals over the interests of the police and of the community to 
enforce the law. The full record of my concerns is set forth in the 
March 22, 1994, Congressional Record. As I declared there, there were 
just too many cases, across too wide a range of subjects, where Judge 
Barkett had stepped beyond the line of responsible judging.
  In particular, I warned that Judge Barkett should not be confirmed 
because of her unduly restrictive view of the fourth amendment that 
would hamstring the police, especially with regard to controlling 
drugs. I highlighted the case of Bostick versus State, a case involving 
cocaine trafficking, in which Judge Barkett adopted an across-the-board 
per se ban on bus passenger searches, even though Supreme Court 
precedent clearly called for an analysis of the search based on the 
particular circumstances present. The Supreme Court of the United 
States had to grant certiorari and reverse Judge Barkett's soft on 
crime decision.
  I am sorry to say that Judge Barkett's misunderstanding of search and 
seizure law has only continued. Only now, thanks to President Clinton, 
her opinions apply to all prosecutions brought in Georgia and in 
Alabama as well as in Florida. Her ongoing willingness to raise 
groundless fourth amendment arguments to prevent our Nation from 
combating the damage that drugs are causing our society is evident in 
two recent opinions, Merrett versus Moore [Feb. 26, 1996], in which 
Judge Barkett dissented from denial of en banc review, and in Chandler 
versus Miller, [73 F.3d 1543 (CA11 1996)], in which Judge Barkett again 
dissented.
  In Merrett, Florida law enforcement officials and the Florida Highway 
Patrol set up roadblocks on four Florida highways for the chief purpose 
of locating illegal drugs. On two successive days from 4 p.m. to 10 
p.m., Florida police briefly stopped vehicles, checked for obvious 
safety defects, and examined drivers' licenses and vehicle 
registrations. While this examination was undertaken, the police used 
dogs to sniff the outside of each car for illegal drugs. If a dog 
alerted to the presence of drugs, the car was pulled out of line. As 
Judge Edmonson, a Reagan appointee, noted for the majority, these 
searches were minimal and the entire encounter between police and the 
motorist lasted only a few minutes. Police also moved traffic through 
without stopping cars when long backups developed.
  Of the 2,100 vehicles that passed through the checkpoints and of the 
1,300 vehicles stopped, there were few long delays, one car overheated, 
one minor accident occurred, the dogs scratched a few cars, and one 
person was bitten by a dog. Judge Edmonson, joined by Judge Birch, a 
Bush appointee, and Judge Hill, a senior judge appointed by President 
Ford, properly held that the roadblocks were reasonable under the 
fourth amendment's search and seizure clause. The intrusion of the 
search was minimal and was far outweighed by the State's interest in 
enforcing its traffic laws and in preventing the flow of drugs into our 
Nation. Indeed, recognizing these facts, the Supreme Court has approved 
reasonable roadblock searches before for the purpose of checking 
sobriety, [see Michigan Department of State Police v. Sitz [496 U.S. 
444 (1990)], and for border patrols [see United States v. Martinez-
Fuerte, 428 U.S. 543 (1976)].
  But the persuasive reasoning of Judge Edmonson and his colleagues, 
the decisions of the Supreme Court, and the need to stem the flow of 
destructive drugs into our society were not enough for Judge Barkett. 
Judge Barkett voted to grant review of the decision before the entire 
eleventh circuit, and she wrote a dissent joined by Judges Kravitch and 
Hatchett, both Carter appointees, when she lost. Fortunately, the six 
Reagan-Bush appointees, the one Ford appointee, and one Carter 
appointee voted to keep Judge Edmonson's ruling in place.
  Continuing her unduly restrictive view of the fourth amendment's 
application to drug searches, Judge Barkett declared:

       In my view, permitting law enforcement to stop every 
     vehicle at a roadblock based on the mere possibility that one 
     or more of the vehicles passing through will contain illegal 
     drugs--evidence of a crime completely unrelated to highway 
     safety--is * * * intolerable and unreasonable.

  I would have thought that drug use would be a great threat to highway 
safety, and as I have noted, the Supreme Court has already held that 
sobriety checkpoints--alcohol is, after all, a drug--are 
constitutional.
  Judge Barkett and her dissenting colleagues also should examine the 
text of the fourth amendment, which she never even quoted in her 
opinion. The fourth amendment states that ``The right of the people to 
be secure in their persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be violated.'' Unlike the 
judges in the majority, Judge Barkett never asked whether the roadblock 
searches were reasonable. Instead, she sought vainly to say that using 
roadblocks to search for drugs was patently illegal. But most judges of 
the courts of appeals, most Justices of the Supreme Court, and, I 
think, most of the American people, would agree that the minimal search 
involved here--a stop for a few minutes combined with a sniff by a 
dog--is certainly reasonable, especially when balanced against the need 
to combat the influx of destructive drugs in our society.
  Judge Barkett also continues to remain suspicious of the efforts of 
police to defend our communities against crime and against drugs. In 
Merrett, she declared that she believed that Florida's claim that the 
roadblock was also used to check for traffic violations was only a 
pretext for an illegal search for drugs. In Judge Barkett's mind, this 
raised the fundamental concern that officers will attempt to evade the 
requirements of the fourth amendment by using a traffic stop to detain 
someone for a purpose that would not lawfully support a detention.
  I believe that our police officers are good people who are laying 
their lives on the line to protect our lives, our families, and our 
communities. Like Judge Baer, Judge Barkett sees our law enforcement 
officers as using any pretext they can to conduct illegal searches. I 
see them asking for a minimal amount of time to ensure that drugs are 
not being transported for distribution to our children and to our poor. 
Judges like Judge Barkett and Judge Baer are all too willing to place 
legal technicalities as obstacles before our law enforcement officers, 
who are only trying to take criminals off of the street.
  Furthermore, as the majority in the original case noted, and as the 
Supreme Court has made clear before, roadblocks are often more 
respective of

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fourth amendment values because they are random. They do not rely upon 
the discretion of the police officer to choose whom to stop and 
search--all are treated the same. Roadblocks, in the Supreme Court's 
words, avoid the standardless and unconstrained discretion present in 
individual stops. [Delaware v. Prouse, 440 U.S. 648, 661 (1979).]
  I presume that Judge Barkett also would find fault with the metal 
detectors at airports and government buildings, or stops at the border, 
or customs searches, because even though they are all minimal 
intrusions into an individual's privacy, they subject everyone to a 
search without a warrant. Fortunately, Judge Barkett's feelings on this 
point conflict with Supreme Court precedent, and even though Judge 
Barkett seems to have always had trouble following the precedent of the 
Supreme Court, most other Federal judges do not, including the 
Republican-appointed judges on the eleventh circuit.
  Merrett is not the only case in which Judge Barkett has been willing 
to place obstacles before our Nation's war on drugs, a war in which the 
administration has been AWOL--absent without leadership. In Chandler 
versus Miller, a January 1996 case, Judge Barkett again dissented in a 
case involving drugs and search and seizure. Georgia passed a statute 
requiring drug testing of political candidates and nominees for State 
offices. In cases such as National Treasury Employees v. Von Raab [489 
U.S. 656 (1989)], Skinner v. Railway Labor Executives' Association [489 
U.S. 602 (1989)], and last Term's Vernonia School District v. Acton 
[115 S.Ct. 2386 (1995)], the Supreme Court has declared that courts 
must balance the individual's privacy expectations against the 
Government's special interests in preventing drug use in that area.
  In these cases, the Supreme Court has upheld drug testing of drug 
agents, of railway workers, and of high school athletes. For Judge 
Barkett, however, these were all narrow exceptions to a general rule in 
her own mind that no one should be subject to drug testing, including 
candidates for high public office. In her mind, controlling drug use 
among the highest public officials involves no immediate or direct 
threat to public safety, and that there is no showing that waiting to 
obtain a warrant based on individualized suspicion would cause any dire 
consequences. In Judge Barkett's words, ``[t]here is nothing so special 
or immediate about the generalized governmental interests involved here 
to as to warrant suspension'' of the warrant requirement.
  But as the majority correctly held, the Government's interest in 
preventing drug use among its highest public officials is a powerful 
one. In the majority's words, the people of a State place their most 
valuable possessions, their liberty, their safety, the economic well-
being, ultimate responsibility for law enforcement, in the hands of 
their elected and appointed officials, and the nature of high public 
office demands the highest levels of honesty, clear-sightedness, and 
clear-thinking. We permit drug testing of drug agents; we permit drug 
testing of railroad engineers; we even permit drug testing of high 
school athletes. Judge Barkett would have us believe that the damage 
that would be caused by drug use in these situations is far greater 
than that caused by drug use by legislators, by executive branch 
officials, and by judges. Judge Barkett's reasoning strikes me as 
unreasonable, and her efforts again appear designed to restrict the 
tools that our society can use to combat drug use, even in the face of 
contrary Supreme Court precedent.
  Perhaps Judge Barkett's position on the fourth amendment in Chandler 
was a reasonable one. But no one can claim that her further statements 
in that case had any grounding in Federal constitutional or statutory 
law. Not only did Judge Barkett argue that the Georgia statute was an 
illegal search, she also argued that it was a violation of the 
candidates' first amendment rights.
  I am not making this up.
  If you don't believe me, Mr. President, listen to her own words. 
``This statute is neither neutral nor procedural, but, * * * attempts 
to ensure that only candidates with a certain point of view qualify for 
public office.'' Judge Barkett interprets the drug testing requirement 
as an attempt to ``ban[] from positions of political power not only 
those candidates who might disagree with the current policy 
criminalizing drug use, but also those who challenge the intrusive 
governmental means to detect such use among its citizenry.''
  Such reasoning reeks of the very worst of the moral relativism that 
characterizes liberal judicial activism. Judge Barkett appears to 
believe that if one is in favor of drug legalization or against drug 
testing, why, one must be a drug user. In fact, Judge Barkett appears 
to believe that drug use is an ideology and that drug testing is, in 
her words, ``a content-based restriction on free expression.'' If that 
is so, then does Judge Barkett believe that any effort to prevent drug 
use is an attempt to suppress the first amendment rights of drug users, 
and that drug use itself is a form of expression?
  Mr. President, this is the 1990's, not the 1960's; America has not 
been transformed into a Woodstock from sea to shining sea. The first 
amendment does not protect illegal, harmful conduct, and it does not 
permit people to plan and encourage illegal conduct. Although this 
administration has been absent without leadership in the drug area, the 
American people and the Congress are not. We are determined to prevent 
drugs from ruining the lives of our young people, and the tolerant 
attitude of some of the Clinton administration's nominees, who equate 
drug use with protected first amendment expression, will not stand in 
our way.
  Why is this so important? As a practical matter, the Senate gives 
each president deference in confirming judicial candidates. A 
Republican President would not nominate the same judges that a Democrat 
would, and vice versa. 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, there are hundreds of judgeships to fill in order 
to keep the justice system functioning.
  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, there were crystal clear signs of their activist 
mindsets. Yet the President appointed these two judges and pushed hard 
successfully to get them through the Judiciary Committee and the 
Senate, despite opposition, largely on this side of the aisle.
  We can now 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. We now can see that President Clinton has sent 
liberal activists to the Federal appellate courts, where their 
decisions bind millions of Americans.
  Judge Sarokin's opinions, if they garner a majority, are the law in 
Pennsylvania, New Jersey, and Delaware. Judge Barkett's opinions, if 
they garner a majority, are the law in Florida, Georgia, and Alabama. 
Criminals whom they would set free on technicalities can strike again, 
anywhere, anytime. This makes all Americans potential victims of these 
judges and their soft-on-crime outlook.
  The general judicial philosophy of nominees to the Federal bench 
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 talk, his judicial nominations too often 
elevate the rights of the criminal above the rights of the law-abiding 
citizen, and undermine safety in our streets, in our homes, and in our 
workplaces.
  The PRESIDING OFFICER. Under the previous order the Chair now 
recognizes the Senator from North Carolina to speak for up to 10 
minutes as in morning business.
  Mr. FAIRCLOTH. Mr. President, I thank the Chair.
  (The remarks of Mr. Faircloth pertaining to the submission of Senate 
Resolution 237 are located in today's Record under ``Submission of 
Concurrent and Senate Resolutions.'')

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