[Congressional Record Volume 142, Number 54 (Wednesday, April 24, 1996)]
[Senate]
[Pages S4009-S4011]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            JUDGES AND CRIME

  Mr. HATCH. Mr. President, I wish to respond to some of the 
extraordinary remarks President Clinton made during the recent 
congressional recess on crime and judicial appointments. Let me note, 
again, that there is simply no substitute, as a practical matter, for 
the sound exercise of Presidential judgment in nominating persons to 
lifetime Federal judgeships.
  I find President Clinton's remarks on April 2--which have been echoed 
by Vice President Gore and by White House aides--concerning the 
administration's record on judges to be a remarkable effort to dodge 
the consequences of his own judicial selections and to deflect the 
attention of the American people from these selections. I welcome the 
opportunity to set the record straight and to dispel the 
administration's myths they are attempting to weave to protect their 
judges and themselves.


                               myth no. 1

  The President said, regarding criticism of his judicial selections, 
that this side is ``sort of embarrassed'' by our crime record. Vice 
President Gore repeated this assertion before a group of newspaper 
editors, and Jack Quinn, the White House counsel, echoed it in 
yesterday's USA Today. This simply is not true, no matter how many 
times the President repeats himself. And this from a President AWOL--
absent without leadership--in the war on drugs. He mentioned the Brady 
bill, the so-called assault weapon ban pertaining to 19 firearms, the 
100,000 police he keeps talking about, and the 1994 crime bill. I will 
examine each in turn.
  It is the swift apprehension, trial, and certain punishment of 
criminals that is our best crime prevention mechanism, not the gun 
control measures the President mentions. Hard-nosed judges, tough 
prosecution policies, and adequate prison space will do more to control 
crime than these measures. I might add that it is particularly ironic 
to hear the President's comment this month. This side of the aisle has 
just sent the President the product of over a decade of Republican 
efforts to curb endless, frivolous death row appeals. The bill also 
places prohibitions on terrorist fundraising; contains provisions on 
terrorist and criminal alien removal and exclusion; strengthens the 
laws pertaining to nuclear, biological, and chemical weapons; 
authorizes $1 billion over 4 years for the FBI, the Drug Enforcement 
Agency, the INS, U.S. attorneys, the Customs Service, and other law 
enforcement agencies; and a number of other tough provisions.
  Although I expect the President to sign the antiterrorism bill today, 
he worked against its key restrictions on the abuse of the writ of 
habeas corpus. He even sent his former White House Counsel, Abner 
Mikva, to lobby on the Hill to dilute these provisions, which will 
provide for the swifter execution of death row murderers.
  Meanwhile, his Solicitor General, Drew Days, has failed to appeal 
decisions, such as the case of United States versus Cheely, that may 
hamper efforts to impose the death penalty on terrorists such as the 
unabomber in California. During a November hearing chaired by myself 
and my good friend Senator Thompson, the Judiciary Committee learned 
that the Clinton administration's Solicitor General generally has 
ceased the efforts of the Reagan and Bush administration to vigorously 
defend the death penalty and tough criminal laws.
  Instead, the Clinton administration's Solicitor General has refused 
to appeal soft-on-crime decisions to the Supreme Court, and he even has 
argued before the Court to narrow Federal child pornography laws.
  The President talks about 100,000 new police officers. His plan will 
not add

[[Page S4010]]

100,000 police officers to the rolls of our law enforcement agencies.
  The 1994 crime bill? When it left the Senate, it was a reasonably 
tough bill, not perfect, but a solid contribution to the swift 
apprehension of criminals and tough, certain punishment. By the time 
the other body and the Clinton administration got through with it, it 
was softened and loaded with billions and billions of dollars of 
wasteful pork--old-fashioned Great Society social spending boondoggles. 
This is why some of us opposed the bill.
  Meanwhile, the President abandoned the bully pulpit in the fight 
against drugs. In 1993, he slashed the drug czar's office. He proposed 
significant drug enforcement personnel cuts to the Drug Enforcement 
Agency, the FBI, the INS, the Customs Service, and the Coast Guard. 
President Clinton has cut America's ability to interdict drug shipments 
in the transit zone. Through the 1980's and early 1990's, the United 
States experienced dramatic and unprecedented reductions in casual drug 
use. But since 1992 drug use among young people has shot back up.


                               Myth No. 2

  According to the Clinton administration, there are decisions by 
Reagan and Bush judges that favor criminals. That is no doubt the case. 
I do not agree with every decision made by a Republican-appointed 
judge, nor do I disagree with every decision made by a Democratic-
appointed judge. But, on the whole, Republican appointed judges are 
going to be tougher on crime. And the American people will never see a 
Republican President appoint a Rosemary Barkett or a Lee Sarokin or a 
Martha Daughtrey to the Federal appellate bench.

  Presidents Reagan and Bush appointed 573 judges to the Federal 
courts, and some of them have served for more than a decade. They have 
thousands of decisions they have written, and some of these no doubt 
will find in favor of a criminal defendant, and sometimes, of course, 
it is the case that the police or prosecutors have stepped over the 
line.
  President Clinton has appointed 185 judges so far to the Federal 
bench, and many of them have served for only 2 years. Furthermore, 
several of these judges consistently have issued decisions that are 
soft on crime--not just because of their result, but because of their 
reasoning. That is why I take such care to describe the facts and 
reasoning of these decisions, because once the American people learn 
what these activist judges have written, it is clear that they display 
a tolerant attitude toward crime and drugs.


                               myth no. 3

  The Clinton administration alleges that I and other Republicans have 
focused on only the same dozen criminal cases. They find references to 
these cases meaningless, because they do not accurately represent the 
large number of cases decided correctly.
  This answer is a red herring at best. It ignores the obvious fact 
that some decisions by some courts are more important than others. 
Decisions by the Supreme Court are far more important than hundreds of 
decisions by district court judges, because it is the decision of the 
High Court that binds all others.
  Perhaps the most important judges are those who sit upon the 13 
Federal courts of appeals, because these courts effectively exercise 
the final say on most of the cases brought in the Federal courts. 
President Clinton has appointed 30 judges of the 175 judges who sit on 
the appellate courts. Most of these judges have been on the bench 2 
years of less. But in those 2 years, more than half of those Clinton 
judges--at least 17 of the 30--have issued or joined activist opinions 
that have been sympathetic to criminal defendants at the expense of 
legitimate law enforcement interests, or that have sought to substitute 
their policy preferences for those of the people as expressed in 
written law. Judges Sarokin, Baird, and Daughtrey are only the most 
egregious examples, because their crystal clear track records reflected 
their activist bent.
  But take, for example, Judges Judith Rogers and David Tatel, who have 
voted with the liberal wing of the D.C. Circuit--probably the second 
most powerful court in the land--in every important en banc case. In 
particular, both judges dissented in Action for Children's Television 
v. F.C.C. [58 F.3d 654 (CADC 1995) (en banc)], in which the majority--
all Reagan and Bush appointees--held that the Government could restrict 
indecent broadcasts on television during certain hours. Judges Rogers 
and Tatel joined two Carter judges in arguing that the Government was 
somehow violating the first amendment. This is activism of the worst 
sort, and, as the distinguished majority leader pointed out yesterday, 
at odds with the President's posturing on the V-chip legislation.
  Or take, for example, the performance of Judge Martha Daughtrey of 
the sixth circuit. As I recall it, Vice President Gore was a strong 
supporter of then Tennessee State Supreme Court Justice Martha 
Daughtrey when she was nominated to the Court of Appeals for the Sixth 
Circuit. We had a rollcall vote in the Judiciary Committee on Judge 
Daughtrey, where I voted against her. I believed she was insufficiently 
tough on crime. Among the concerns I expressed, when she was a member 
of an intermediate State court, ``she voted frequently, often in 
dissent, to reduce prison sentences for convicted criminals or to 
eliminate them entirely in favor of mere probation.''
  My concerns about Judge Daughtrey have been realized in certain 
respects. In United States v. Garnier [28 F.3d 1214 (CA6 1994)], police 
in Johnson City, TN, stopped a car for making a left turn without 
signaling and for erratic driving. The police believed that the driver 
might have been under the influence. The traffic infractions alone 
provided grounds to stop the car.
  A field sobriety test of the driver was negative. But, during the 
stop, police noticed that a passenger reached several times into a bag 
on the floorboard of the car. Reasonably concerned for their safety, 
police asked the passenger to exit the vehicle and asked to look in the 
bag. Passenger Rudolph Garnier consented, but nothing was found.
  When police frisked Garnier for weapons, they found a cellular phone, 
a pocket beeper, and two rolls of cash totaling about $2,100. Police 
then asked if they could search the trunk. Both the driver and Garnier 
consented. The police found a shopping bag belonging to Garnier that 
contained a baggie with a large amount of crack cocaine.
  Here, we had erratic driving early in the morning, motions toward a 
bag, large amounts of cash, a cellular phone, and beeper. Law 
enforcement officers well know that drug dealers often carry large 
amounts of cash and use cellular phones and beepers to set up sales. I 
think most people would find the search reasonable, especially since it 
came after the voluntary consent of the driver and passenger.
  Judge James Ryan of the sixth circuit, appointed by President Reagan, 
would also agree. When this case came up for appeal, he voted to uphold 
the legality of the police search. He wrote,

       These items provided the officer with sufficient 
     articulable suspicion to extend the purpose and scope of the 
     stop. No competent police officer in America, in 1993, would 
     fail to suspect, reasonably, that these items suggested that 
     narcotics might well be present somewhere in the vehicle.

  Unfortunately for law abiding citizens, Judge Ryan's opinion was a 
dissent. The majority opinion, written by Judge Daughtrey, and joined 
by Judge Damon Keith, a Carter appointee, threw the evidence out of the 
case. They held that unless police had found a weapon on Garnier, 
police had no right to ask to search the trunk.

  Frankly, Judge Daughtrey created this rule out of thin air. The 
fourth amendment, which Judge Daughtrey did not even quote in her 
opinion, prohibits only ``unreasonable searches and seizures.'' There 
is no per se rule that a weapon must be found before an officer can 
even ask to search further. He only asked for permission to search, it 
was not a coercive search. And, in fact, the defendant gave permission.
  Think about it. In Judge Daughtrey's world, police are not even 
allowed to ask for permission to search a vehicle unless certain 
predicates are found to have occurred. Unfortunately, the citizens of 
Michigan, Ohio, Tennessee, and Kentucky are going to have to live with 
Judge Daughtrey long after President Clinton has left office.
  I will mention one more case involving Judge Daughtrey. In United 
States versus Long, customs inspectors discovered child pornography 
videos mailed from overseas to defendant's address. Police obtained a 
warrant to search the defendant's residence and found 19 magazines, 
books, and drugs.

[[Page S4011]]

Judge Milburn, a Reagan appointee, and senior Judge Weis, a Nixon 
appointee, upheld the search. Judge Daughtrey dissented on the ground 
that there was no probable cause to search for additional pornographic 
material at the defendant's home. She flatly ignored a law enforcement 
officer's unrebutted affidavit, who said that based on his experience 
and from experts in the field that it was likely that more examples of 
child pornography would be found.
  These judges are typical of more than half of the Clinton appellate 
judges. These judges sit on high above the district court judges who 
make the hundreds and thousands of usually uncontroversial, run-of-the-
mill rulings that come up in a trial. These appellate judges make 
rulings on issues of law that will extend from the case before them to 
bind the other judges in that circuit on every similar case. The White 
House has cited decisions by Reagan-Bush judges as being soft on crime, 
but these decisions are almost exclusively at the trial level and seem 
to be an aberration for the particular judge. By contrast, I have 
focused attention previously on the important appellate decisions, and 
I have focused on particular judges rather than particular aberrational 
cases. It is clear that President Clinton has put on the bench 
particular individual judges who are continually activist.
  To be sure, there are 13 Clinton appellate judges who have yet to 
issue activist decisions. But many of them have been on the bench for 
only a few months, and have yet to issue any significant opinions. And, 
quite honestly, I have not yet researched all of the decisions of all 
of these judges. who knows what I will find when I have more time to 
read these other decisions.


                               myth no. 4

  The Clinton administration maintains that it has appointed only 
moderate, highly qualified judges because its nominees have received 
better ratings from the American Bar Association than those received by 
judges appointed by Republican Presidents. This is truly unconvincing, 
because the ABA itself is no longer just an impartial trade 
association; over time it has been transformed into an ideological 
advocacy group.
  The ABA has taken positions on some of the most divisive issues of 
our day, such as abortion, and it has vigorously lobbied on Capitol 
Hill against many of the sensible legislation and reforms that we, in 
the 104th Congress, have pursued. It has lobbied against the flag 
desecration amendment, against mandatory minimum sentences, against 
changes in the exclusionary rule, and against habeas corpus reform. It 
has lobbied for proracial preference and quota legislation and against 
the 104th Congress' efforts to end them. I question whether an 
ideological organization such as the ABA can be trusted to play an 
impartial role in any governmental process, such as judicial selection. 
It is my hope that the ABA can play an impartial role. Only the future 
and the ABA's willingness to depoliticize itself, will tell.


                               myth no. 5

  The Clinton administration believes that it is hypocritical for 
Republicans in the Senate to criticize the Clinton judiciary, because 
we only voted against confirming a handful of the nominees. To be sure, 
sometimes we cannot predict how a nominee will act. In those cases 
where we can, in good faith, predict how a nominee will act, we have 
opposed the nomination, as in the cases of Judges Barkett, Sarokin, and 
Daughtrey.
  But my main response is to remind the President of first 
constitutional principles. The Senate's job is only to advise and 
consent to those individuals nominated by the President. When 
Presidents Reagan and Bush lived with a Democratic Senate, we, 
Republicans, argued that the Senate owed some discretion to the 
President.
  We have remained consistent in that position even under a Democratic 
President. As Alexander Hamilton explained in the Federalist No. 66:

       It will be the office of the president to nominate, and 
     with the advice and consent of the senate to appoint. There 
     will of course be no exertion of choice on the part of the 
     senate. They may defeat one choice of the executive, and 
     oblige him to make another; but they cannot themselves 
     choose--they can only ratify or reject the choice of the 
     president.

  The words of our Founding Fathers clearly explain why this election 
is so important. As a practical and as a constitutional matter, the 
Senate gives every President some deference in confirming judicial 
candidates nominated by the President. It is the President's power to 
choose Federal judges, and his alone. A Republican President would not 
nominate the same judges that a Democrat would, and vice versa. Thus, 
the American people should keep in mind that when they elect a 
President, they elect his judges too--and not just for 4 years, but for 
life. There simply is no substitute for the power to nominate Federal 
judges.
  Finally, I would like to say this: We are not going to treat the 
Clinton judges the way our judges were treated in the Reagan and Bush 
administrations. We have treated them fairly. Yes, I would not have 
appointed very many of those judges. Neither would any other 
Republican. Neither will Senator Dole when he becomes President. But 
the fact of the matter is President Clinton was elected. He is our 
President. He has a right to choose these judges, and we have an 
obligation to support those judges unless we can show some very valid 
constitutional reason or other reason why we should not.
  As a general rule, we follow that rule and we do it even though we 
may not agree with these particular selections. But that does not 
negate the fact that in retrospect as you look over the record these 
judges are more liberal. They are deciding cases in a more liberal 
fashion. They are deciding cases in an activist fashion. They are 
deciding cases that are soft on crime. And I have to say this is one of 
the big issues of our time. Are we going to continue to put up with 
this? Are we going to start realizing that these are important issues? 
And that is not to say that there are not Republican judges who make 
mistakes too. But these are more mistakes. These involve philosophy of 
judging that literally should not be a philosophy of judging. Judges 
are not elected to these positions. Judges are appointed for life and 
confirmed for life. They should be interpreting the laws made by those 
elected to make them, and they should not be making laws as legislators 
from the bench. Unfortunately, that is what we are getting today.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
North Dakota is recognized for 8 minutes.

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