[Congressional Record Volume 142, Number 51 (Friday, April 19, 1996)]
[Senate]
[Pages S3725-S3727]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             FEDERAL JUDGES

  Mr. LEAHY. Mr. President, every so often we have to remember that 
this is an election year, when a lot of campaign rhetoric comes up, 
just as it has in the past few weeks about the Federal judges nominated 
by President Clinton and confirmed by this Senate, which is now under 
Republican control.
  I am a member of the Judiciary Committee and I have served on these 
nominations. I am familiar with the outstanding backgrounds of these 
nominees. I believe the U.S. Senate was right when we confirmed them 
and the President was right when he appointed them to the Federal bench 
around the country.
  President Clinton took a Federal judge, the chief district judge in 
our State, a Republican, appointed by a Republican President, and moved 
him to the Second Circuit Court of Appeals. I believe that was the 
right move. The President then appointed J. Garvin Murtha, of 
Dummerston, Vermont, as the chief Federal district judge for the 
District of Vermont--another very good move. He appointed William 
Sessions of Cornwall, Vermont, as a Federal district judge, another 
good move and one applauded by Republicans and Democrats alike 
throughout our State--all three of these. Two of them were former 
prosecutors. I served as a prosecutor with two of them.
  I am troubled by efforts to characterize President Clinton's 
appointments as soft on crime. Ask some of the people that have been 
sentenced by some of these Federal judges whether they think they are 
soft on crime. There was one reference made in one of the sentencings, 
``If you ever have to have a heart transplant, you would want the 
judge's heart because it has not been used yet.'' These are tough 
judges.
  I was privileged to serve for 8 years as a prosecutor before being 
elected to the Senate by the people of Vermont. I know a little bit 
about law enforcement, and I also know a little bit about political 
campaigns.
  If you want to play a game of, ``Oh, look at these judges President 
Clinton has appointed,'' and pick out an isolated case here and there--
and there are tens of thousands of cases--you can play that game. If 
someone were cynical, they could play that game. If somebody wanted to 
pick out selected cases, they could play the game.
  If I wanted to--and I do not, of course--I could talk about some of 
the decisions of judges appointed by Presidents Reagan and Bush, who 
reversed convictions or sentences of defendants that juries found 
guilty beyond a reasonable doubt of atrocious crimes.
  If I wanted to, I could talk about Judge Daniel Tacha. I believe he 
was suggested by the distinguished Republican leader for an appointment 
to a seat on the tenth circuit. A good Republican appointment. He 
recently wrote an interesting opinion that suppressed evidence seized 
by a Utah State trooper. After a lawful stop, upon learning that the 
license of the driver had expired and after receiving suspicious 
responses from the vehicle occupants, the State trooper asked for and 
received permission to search the trunk of the car. Let us be clear 
that he had a right to do that on the face of it. He found a gun, 
scales, and a duffel bag that had crack cocaine in it. Despite the fact 
that the driver consented to the search, this Republican Judge ruled 
that once the trooper determined that the car was properly registered, 
he could no longer detain the defendant and, thus, the search was 
unlawful. The judge ruled that the crack cocaine was to be suppressed. 
If I were cynical, I would say that was an indication of how the 
Republican judiciary feels. But I am not going to.

  In another case, a 13-year-old boy was murdered by four young men 
because the boy caught them stealing a bicycle worth $5. These men 
stomped this 13-year-old boy to death and stifled his screams by 
shoving stones down his throat. All four men were convicted by a State 
court, and their appeals were rejected. But then Judge Richard Korman, 
a Reagan appointee, decided that the State appellate court was 
incorrect. He found ``troubling inconsistencies'' in the story told by 
law enforcement officials. As a result, he decided to free the 
convicted murderers--these men convicted of stomping to death this 13-
year-old--on $3,000 bail. I have seen traffic cases that got higher 
bail than that.
  Now, if I was cynical, I would blame President Reagan for appointing 
them. But, instead, I will praise three other judges appointed by 
President Reagan--no, actually I cannot. I was going to say that they 
overturned this decision when it went to the court of appeals. But 
these other three appointees of President Reagan affirmed this. They 
did not even bother to issue an opinion. Is that an indication of the

[[Page S3726]]

judicial philosophy of President Reagan? No, I do not think so at all. 
But is it an indication of some of the judges appointed?
  Judge William Cambridge of Nebraska, a Reagan appointee, overturned 
the death sentence of a defendant who not only confessed to killing 
three young boys, but who said that he would do it again if he were 
ever set free. One of the boys was pinned to the ground by a knife 
through his back and was slashed and stabbed to death as he pleaded for 
his life. One of the other victims endured a similar fate, and when 
they found his body, it had a drawing of a plant cut into his torso. 
Judge Cambridge vacated the sentence because he concluded that the 
State statute's use of the term ``exceptional depravity'' was too 
vague. If this is not exceptional depravity, I do not know what in 
Heaven's name is.

  On appeal, the deciding vote to reverse Judge Cambridge and affirm 
the death sentence, the deciding vote to reverse the Reagan appointee's 
decision was cast by Judge Diana Murphy--and she, incidentally, was a 
Clinton appointee. She helped correct what I think was an egregious 
mistake and concluded that under any reasonable interpretation of the 
statute, these crimes certainly qualified as depraved and for the 
sentence.
  In another recent case from Nebraska, Judge Richard Kopf, an 
appointee of President Bush, reversed the death sentence of a convicted 
double murderer. The defendant was given two capital sentences in the 
stabbing deaths of his cousin and her house guest. Despite suffering 
seven stab wounds, the defendant's cousin was able to make her way to a 
phone, summon help, and then died. After the Nebraska Supreme Court 
twice rejected appeals, Judge Kopf granted a habeas corpus petition, 
concluding that the Nebraska Supreme Court had misinterpreted its own 
State law by reweighing the aggravating and mitigating circumstances 
involved in the case. It went up on appeal, and the eighth circuit 
reversed the decision, finding that Judge Kopf had exceeded his 
authority by contesting the Nebraska Supreme Court's interpretation of 
a Nebraska statute.
  These were all Reagan and Bush appointees, and one of the most 
egregious decisions made was reversed by a Clinton appointee.
  Those of us who have tried a lot of cases know that sometimes cases 
do not turn out the way you want. That is why you have appellate 
courts. Sometimes judges rule in a way that you just cannot understand. 
But I am not going to condemn President Reagan's appointees as judges 
and President Bush's appointees as judges, or President Reagan or 
President Bush, because of a few aberrations, decisions about which I 
do not know all the facts and in connection with which I have not 
reviewed all the evidence. I would not do this and no one else should 
try, in a political year, to condemn President Clinton, who I must say 
has appointed some darned good men and women to the judiciary--just as 
President Bush appointed some darned good men and women to the 
judiciary, and President Reagan did, and President Carter did, and 
President Ford did. All of these Presidents have appointed judges on 
whom I had the opportunity to vote.

  I have voted for some Republican nominees and against some. I voted 
for some Democratic nominees and against some. But that is where we get 
involved. We can vote for them or against them. But do not take some 
isolated incident and try to turn it into a Presidential election year 
thing.
  If we did that, we could go to the notorious 911 murders in Detroit. 
One of the victims was shot repeatedly while frantically calling for 
police assistance. The entire episode was recorded by the 911 operator, 
and the defendant ultimately pleaded guilty to two counts of murder. 
Sixteen years after the fact, the convicted murderer filed his second 
habeas corpus petition claiming that comments made by the African-
American State judge, several years after the case was over, somehow 
revealed bias against fellow African-Americans. Make sure you 
understand this. The defendant said that based on the comments made by 
the African-American judge 16 years after the case concluded the judge 
had expressed bias against African Americans. Most judges would just 
toss this out the window it is so far-fetched. But Judge David 
McKeague, a Bush appointee, granted relief and ordered resentencing. 
Fortunately, the prosecutor appealed and the decision was unanimously 
reversed.
  The defendant in another case broke into his neighbor's home and 
brutally attacked four young children. Three children died from 
multiple skull fractures, and the fourth survived an apparent sexual 
assault. The defendant was convicted of murder and sentenced to death. 
Because the jury had not been presented with mitigating evidence 
concerning the childhood abuse and mental disorder the defendant 
allegedly suffered, Judge Sam Sparks, an appointee of President Bush, 
vacated the sentence. That decision, incidentally, was unanimously 
reversed on appeal.
  Another defendant brutally murdered his ex-wife in the basement of 
her residence, stabbing her over 40 times. He was convicted by a jury 
of murder. Judge Thomas O'Neil, a Reagan appointee, reversed the 
conviction. That decision was unanimously reversed on appeal.
  Does that mean that President Reagan was soft on crime? Of course 
not, even though obviously a number of his judges made decisions that I 
as a former prosecutor find very, very difficult to understand.
  Just like Judge Huff, an appointee of President Bush, who sentenced a 
defendant to 2 years and 9 months in prison for smuggling illegal 
aliens into the country even though three of the illegal aliens died 
during the attempt. That is hard to understand. But I do not consider 
President Bush, whom I happen to know and admire, as being soft on 
crime because of that.
  Judge Vaughn Walker, appointed by President Bush, publicly called for 
the legalization of drugs. He has repeatedly refused to abide by 
binding Supreme Court precedents, the sentencing guidelines, and 
mandatory minimum sentencing statutes based on his personal beliefs 
about the propriety of decriminalizing narcotics. The ninth circuit has 
frequently and summarily reversed him.
  He has also issued a number of rulings that stymied efforts to 
prosecute drug traffickers. The U.S. attorney's office for the Northern 
District of California, which is headed by a U.S. attorney appointed by 
President Clinton, has found itself frustrated with the judge's rulings 
in major drug cases. In a case involving the seizure of 1,000 pounds of 
heroin--incidentally, the largest bust of heroin in U.S. history at the 
time--Judge Walker repeatedly dealt setbacks to prosecutors, including 
suppressing several key pieces of evidence and releasing two defendants 
on bail. In one of his suppression orders, he minimized heroin 
trafficking as little more than mercantile crimes. Two of these were 
reversed.
  Does that mean that President Bush favored legalizing heroin or 
drugs? I doubt that very much--any more than I do. It is unfortunate 
that the Clinton appointee, the person that President Clinton appointed 
as U.S. attorney, who is trying to clean up drug trafficking and is 
trying to stop heroin trafficking, is frustrated by the judge appointed 
by the previous Republican administration. But I do not think it 
reflects the views of President Bush.
  I think what is more accurately reflected is that a U.S. attorney can 
be replaced very easily. In fact, you have a tough U.S. attorney out 
there who really wants to prosecute drugs and who reflects President 
Clinton's views.
  Chief Judge Richard Posner of the seventh circuit, is another 
appointee of President Reagan, who has similarly taken a public 
position advocating the legalization of drugs.
  If I was cynical, which, fortunately, I am not, being from a small 
State like Vermont, I could come to the floor and make the case that 
Republican judges let off criminals on technicalities and that they are 
soft on crime. Some might even call for impeachment of the judges that 
made such decisions and took such positions. But in the recorded words 
of another Republican President, for whom I have a lot of affection, I 
say, That would be wrong.
  As I said in my statement 2 weeks ago on this floor, no one should be 
making such statements or demagoging judges based on isolated 
decisions. We disserve our system of

[[Page S3727]]

justice, our system of government, and the American people when we 
engage in such rhetoric.
  As anyone who is at all familiar with our criminal justice systems 
knows, in the overwhelming majority of cases, Federal judges, 
regardless of whether they were appointed by Republican Presidents or 
Democratic Presidents, uphold the law, and they do an excellent, if 
often difficult, job.
  We have been fortunate, Mr. President, in this country that 
Presidents of both parties have appointed some of the finest men and 
women in this country as Federal judges. Those men and women have 
upheld the liberties of every one of us, no matter what our political 
party might be, no matter what our ideology might be, no matter whether 
we are wealthy or poor, and no matter what our backgrounds are.
  We have been blessed in this country with very, very good Federal 
judges. We have had a few clunkers. Yes, we have a few clunkers. I 
probably appeared before some at one time or another. But the vast, 
vast majority of our Federal judges do a very difficult, very 
honorable, and a very good job.
  The Presidents who appoint them ought to be praised for it. I think 
that it demeans the Office of the Presidency and it demeans the Federal 
judiciary and it demeans the Senate to make this some a political thing 
where we go after the incumbent President and claim that he is not 
doing a good job in appointing judges.
  In fact, President Clinton's judicial appointees have won praise 
around the country as well qualified and centrist. That is why we have 
confirmed each of them--the Republican-controlled Senate has, and the 
Democratic-controlled Senate has. Each of them has had an exhaustive 
and intrusive examination before the Judiciary Committee, and each has 
been confirmed by this body. In fact, only 3 of the 185 lower Federal 
court judges who President Clinton appointed to the bench have even 
been the subject of contested votes.
  We hear a lot of criticism now, but the distinguished majority leader 
and the chairman of the Judiciary Committee voted for 182 of the 185 
judges now on the courts of appeals and districts courts appointed by 
President Clinton.
  In fact, the Legal Times says of President Clinton's judges:

       From the beginning, his philosophy toward judicial 
     selection has differed from that of his two immediate 
     predecessors [who] engaged in a crusade to put committed 
     conservatives on the bench. President Clinton's criteria, by 
     contrast, seem less ideological. He has primarily sought two 
     attributes in his judicial candidates--undisputed legal 
     qualifications, and gender and ethnic diversity.

  In a comprehensive report at the midpoint of President Clinton's 
first term, the New York Times reported:

       Political scientists, legal scholars and nonpartisan groups 
     like the American Bar Association who have studied the new 
     judges' records also said Mr. Clinton's choices were better 
     qualified than those of Mr. Reagan or President George Bush.
       The new judges were deliberately chosen to fit squarely in 
     the judicial mainstream and were, by and large, replacing 
     liberal Democrats.

  Everyone always talks about making the judicial selection process 
less political. Now election year politics threaten to bring political 
rhetoric about judges to the forefront. Let us not make judges or 
isolated decisions into political issues. Let us work together to 
increase respect for our system of justice and for those who serve 
within it.
  Mr. President, I see my good friend from Tennessee in the Chamber and 
I know he seeks--I see both of my good friends from Tennessee in the 
Chamber. I know one or the other is going to want to talk. So I yield 
the floor.

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