[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.
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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
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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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