[Congressional Record Volume 145, Number 144 (Thursday, October 21, 1999)]
[Senate]
[Pages S13006-S13009]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   NOMINATION OF JUSTICE RONNIE WHITE

  Mr. LEAHY. Madam President, for many months I had been calling for a 
fair vote on the nomination of Justice Ronnie White to the federal 
court. Instead, the country witnessed a party line vote as all 54 
Republican members of the Senate present that day voted against 
confirming this highly qualified African-American jurist to the federal 
bench. I believe that vote to have been unprecedented--the only party 
line vote to defeat a judicial nomination I can find in our history.
  There was brief debate on this nomination and two others the night 
before the vote. At that time, I attempted, as best I could through 
questions in the limited opportunity allotted, to clarify the record of 
this outstanding judge with respect to capital punishment appeals and 
to outline his background and qualifications.
  I noted that Justice White had, in fact, voted to uphold the 
imposition of

[[Page S13007]]

the death penalty 41 times. I observed that other members of the 
Missouri Supreme Court, including members of the Court appointed by 
Republican governors, had similar voting records and more often than 
not agreed with Justice White, both when he voted to uphold the death 
penalty and when he joined with a majority of that Court to reverse and 
remand such cases for resentencing or a new trial. Of the 59 capital 
punishment cases that Justice White has reviewed, he voted with the 
majority of that Court 51 times--41 times to uphold the death penalty 
and 10 times to reverse for serious legal error.
  As best I can determine, in only six of these 59 cases did Justice 
White dissent from the imposition of a death penalty, and in only three 
did he do so with a dissent that was not joined by other members of the 
court. That is hardly the record that the Senate was told about Monday 
and Tuesday of the first week in October, when it was told that Justice 
White was an anti-death penalty judge, someone who was ``procriminal 
and activist with a slant toward criminals,'' someone with ``a serious 
bias against a willingness to impose the death penalty,'' someone who 
seeks ``at every turn'' to provide opportunities for the guilty to 
``escape punishment,'' and someone ``with a tremendous bent toward 
criminal activity.''
  The opposition to Justice White presented a distorted view by 
concentrating on two lone dissents out of 59 capital punishment cases. 
Making matters worse, the legal issues involved in those cases were not 
even discussed. Instead, the opposition was concentrated on the 
gruesome facts of the crimes.
  I believe it was another member of the Missouri Supreme Court, one of 
those appointed by a Republican governor of Missouri, who wrote in his 
own sole dissent in a gruesome case of kidnaping, rape, and murder of a 
teenage girl:

       Occasionally, the heinousness of a crime, the seeming 
     certainty of the same result if the case is remanded and the 
     delay occasioned by a second remand tempt one to wink at 
     procedural defects. Nevertheless, the cornerstone of any 
     civilized system of justice is that the rules are applied 
     evenly to everyone no matter how despicable the crime.--State 
     v. Nunley, 923 S.W.2d 911, 927 (Mo. 1996) (Holstein, J., 
     dissenting).

  Indeed, in his dissent in State v. Johnson, Justice White makes a 
similar point when he notes:

       This is a very hard case. If Mr. Johnson was in control of 
     his faculties when he went on this murderous rampage, then he 
     assuredly deserves the death sentence he was given. But the 
     question of what Mr. Johnson's mental status was on that 
     night is not susceptible of easy answers. . . . This is an 
     excellent example of why hard cases make bad law. While I 
     share the majority's horror at this carnage, I cannot uphold 
     this as an acceptable standard of representation for a 
     defendant accused of capital murder.--State v. Johnson, 968 
     S.W.2d 123, 138 (Mo. 1998).

  Although you would never know the legal issue involved in this case 
from the discussion before the Senate, the appellate decision did not 
turn on the grizzly facts or abhorrence of the crimes, but difficult 
legal questions concerning the standard by which an appellate court 
should evaluate claims of ineffective assistance of counsel. Justice 
White sought to apply the standard set by the United States Supreme 
Court in Strickland v. Washington, 466 U.S. 668 (1984), and reiterated 
in Kyles v. Whitley, 514 U.S. 419 (1995). Thus, the dispute between 
Justice White and the majority was whether an appellant may succeed if 
he shows that there was a ``reasonable probability'' of a different 
result, or whether he is required to show that the counsel's 
unprofessional conduct was outcome-determinative and thus the ``most 
likely'' reason why his defense was unsuccessful. Indeed, the case 
turns on an issue similar to that being currently considered by the 
United States Supreme Court this term. Far from creating a ``new 
ground'' for appeal or urging a ``lower legal standard'' of review, 
Justice White's dissent sought to apply what he understood to be the 
current legal standard to the gruesome facts of a difficult case.
  Likewise troubling was the use by those who opposed the nomination of 
Justice White's dissent in the Kinder case, a 1996 decision. State v. 
Kinder, 942 S.W.2d 313 (Mo. 1996). That case also arose from brutal 
crimes, which were, or course, detailed for the Senate. What is 
troubling is the characterization of the legal issue on appeal by 
Justice White's detractors. Justice White did not say that the case was 
``contaminated by racial bias'' because the trial judge ``had indicated 
that he opposed affirmative action and had switched parties based on 
that.'' The dissent did not turn on the political affiliation of the 
judge or his opposition to affirmative action. In fact, Justice White 
expressly stated that the trial judge's position on affirmative action 
was ``irrelevant to the issue of bias.''
  Rather, the point of the dissent was that the majority opinion was 
changing the law of Missouri by reinterpreting state law precedent and 
restricting it in an artificially truncated way to avoid the recusal of 
the trial judge, which Missouri law at that time required.
  The case led to long and complicated opinions by the majority and 
dissent. The opposition to Justice White chose to characterize the case 
as if the trial judge was accused of racial bias merely for not 
favoring affirmative action policies. In fact, the trial judge was 
facing an election and had issued a press release less than a week 
before the defendant's trial. The defendant was an indigent, unemployed 
African-American man. The judge's statement read, in pertinent part:

       The truth is that I have noticed in recent years that the 
     Democrat party places too much emphasis on representing 
     minorities such as homosexuals, people who don't want to 
     work, and people with a skin that's any color but white. . . 
     . While minorities need to be represented, or [sic] course, I 
     believe the time has come for us to place much more emphasis 
     and concern on the hardworking taxpayers in this country.--
     Kinder, 942 S.W.2d at 321.

  As Justice White's dissent correctly points out, the holding of the 
case rewrote Missouri Supreme Court precedent instead of following it. 
Without regard to the principles of stare decisis, following precedent, 
and avoiding judicial activism, the majority reversed Missouri law 
(without acknowledging that fact) to achieve a desired result. The 
majority opinion rests on the narrow proposition that only ``judicial 
statements'' that raise a doubt as to the judge's willingness to follow 
the law provide a basis for disqualification, and ``distinguished'' 
this case from controlling precedent because the evidence of racial 
bias was contained in what the majority characterized as a ``political 
statement.'' Justice Limbaugh, who had dissented from the earlier 
Missouri Supreme Court decision on which Justice White relied, wrote 
the majority opinion in Kinder, which stated:

       To the extent the comments can be read to disparage 
     minorities, there is little point in defending them, even as 
     the political act they were intended to be. But they are a 
     political act, not a judicial one, and as such, they do not 
     necessarily have any bearing on the judge's in-court 
     treatment of minorities.--Id. The majority opinion created a 
     rule that consciously disregards political statements of a 
     judge evidencing racial bias.

  In his dissent, Justice White, quoting from the earlier Missouri 
Supreme Court decision, wrote: ```[F]undamental fairness requires that 
the trial judge be free of the appearance of prejudice against the 
defendant as an individual and against the racial group on which the 
defendant is a member.'' He noted that ``conduct suggesting racial bias 
`undermines the credibility of the judicial system and opens the 
integrity of the judicial system to question.''' Kinder, 942 S.W.2d at 
341, citing State v. Smulls, 935 S.W.2d 9, 25-27 (Mo. 1986).
  I believe that fairminded people who read and consider Justice 
White's dissent in Kinder will appreciate the strength of his legal 
reasoning. Certainly that was the reaction of Stuart Taylor, Jr. in his 
article in the October 16 National Journal and of Benjamin Wittes in 
his October 13 column in the Washington Post. Through the Kinder 
decision, the Missouri Supreme Court has created new law that provides 
very narrow restrictions on judges' conduct. Indeed, a Missouri 
criminal trial judge could now apparently lead a KKK rally one night 
and spout racial hatred, epithets and calls for racial conflict, and 
preside over the criminal trial of an African-American defendant the 
next morning--so long as he did not say anything offensive as a 
``judicial statement'' in connection with the trial.
  Fairness and credibility are important values for all government 
actions, and especially important to the guarantee of due process that 
makes our

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justice system the best in the world. Those same qualities of fairness, 
credibility, and integrity are essential to the Senate confirmation 
process.
  It is worth noting that many of the same critics of Justice White's 
opinion in the Kinder case adopt the opposite posture and a different 
standard when it comes to evaluating Judge Richard Paez, a nominee who 
has been held up without a vote for 44 months. Judge Paez is roundly 
criticized for a reference in a speech he gave in which he commented on 
the early stages of an initiative effort that later became Proposition 
209 in California. Those who led the Republican fight against Justice 
White reverse themselves when it comes to opposing the Hispanic nominee 
from California and criticize him for much more circumspect comments 
predicting the likely reaction to that initiative in the Hispanic 
community. These critics would not only disqualify Judge Paez from 
hearing a case involving Proposition 209, but would disqualify him from 
confirmation as a federal appellate judge.
  Justice White's detractors contend that they oppose ``judicial 
activism,'' which they define as a judge substituting his personal will 
for that of the legislature. However, in none of the cases on which 
they rely is a statute implicated. Instead, in each of these cases 
Justice White appears to be following controlling precedent. In the 
Kinder case, it is the majority that changed the law of Missouri. 
Likewise in the Johnson case, it was the majority that reached out to 
distinguish that case and alter the way in which the governing legal 
standard for review was to be applied.
  Finally, the third case on which the opposition to Justice White 
relies, State v. Damask, 936 S.W.2d 565 (Mo. 1996), is not concerned 
with legislative action either. In this case, the Court upheld the 
constitutionality of law enforcement checkpoints without warrants or 
reasonable suspicion. The majority reached out to distinguish the case 
from governing precedent, changed the rules under which it viewed the 
governing facts, and challenged the factual basis on which the lower 
courts had based their conclusions.
  In his dissent in Damask, Justice White relied on the authority of 
the United States Supreme Court in Delaware v. Prouse, 440 U.S. 648 
(1979). See also Galberth v. U.S., 590 A.2d 990 (D.C. App. 1991). His 
ruling expressly recognizes the importance of combating drug 
trafficking and, relying on the record of the cases, concludes that the 
checkpoints were the types of discretionary investigatory stops 
forbidden by governing precedent. Justice White worried that these 
operations had not been approved by politically accountable public 
officials and that the courts should not substitute their judgment for 
law enforcement authorities and public officials who were responsible 
and accountable for designing such operations. See State v. Canton, 775 
S.W.2d 352 (Mo. App. 1989); State v. Welch, 755 S.W.2d 624 (Mo. App. 
1988); Note, ``The Constitutionality of Drug Enforcement Checkpoints in 
Missouri,'' 63 Mo. L. Rev. 263 (1998). I wonder how we all might feel 
if instead of seizing marijuana, the armed men in camouflage fatigues 
shining flashlights into the faces of motorists in an isolated area 
late at night were seizing firearms.

  Another decision that has not been mentioned in the course of this 
debate on Justice White's nomination is the decision of the people of 
Missouri to retain Justice White as a member of their Supreme Court. 
Although initially appointed, pursuant to Missouri law Justice White 
went before the voters of Missouri in a retention election in 1996. I 
am informed that he received over 1.1 million votes and a favorable 
vote of 64.7 percent.
  All of the cases on which the opposition to Justice White relied were 
decided before his hearing and before he was twice reported favorably 
by a bipartisan majority of the Senate Judiciary Committee in May 1998 
and July 1999. Although Justice White was first nominated to the 
federal bench in 1997, the Judiciary Committee did not receive negative 
comments about him until quite recently. No law enforcement opposition 
of any kind was received by the Committee of the Senate in 1997 or 
1998.
  This year, Justice White was renominated with significant fanfare in 
January and major newspapers in the state reported on the status on the 
nomination. I began repeated calls for his consideration by February. 
The Committee finally proceeded to reconsider and report his 
nomination, again, in July 1999. Still, the Judiciary Committee 
received no opposition from Missouri law enforcement.
  The first contact the Judiciary Committee received from Missouri law 
enforcement was a strong letter of support and endorsement from the 
Chief of Police of the St. Louis Metropolitan Police Department. I 
thank Colonel Henderson for contacting the Committee and sharing his 
views with us. I have recently read that the Missouri Police Chiefs 
Association, representing 465 members across the state, does not get 
involved in judicial nominations. I understand that policy because it 
is shared by many law enforcement organizations that I know. I also 
appreciate that when asked by a reporter recently, the president of the 
Missouri Police Chiefs Association described Justice White as ``an 
upright, fine individual'' and that he knew Justice White personally 
and really had ``a hard time seeing that he's against law enforcement'' 
and never thought of him as ``procriminal.''
  The Missouri State Lodge of the Fraternal Order of Police has 
indicated on behalf of its 4,500 dedicated law enforcement officer 
members in Missouri, that they view Justice White's record as ``one of 
a jurist whose record on the death penalty has been far more supportive 
of the rights of victims than of the rights of criminals.'' They see 
his record as having voted to reverse the death penalty ``in far fewer 
instances than the other Justices on the Court'' and note that he 
``also voted to affirm the death penalty in 41 cases.'' The Missouri 
Fraternal Order of Police expresses its regret for ``the needless 
injury which has been inflicted on the reputation of Justice White'' 
and concludes that ``our nation has been deprived of an individual who 
surely would have proven to be an asset to the Federal Judiciary.'' I 
thank President Thomas W. Mayer and all the FOP members in Missouri for 
speaking out on behalf of this fine judge and sharing their perspective 
with us.
  I certainly understand and appreciate Sheriff Kenny Jones deciding to 
write to fellow sheriffs about this nomination. Sheriff Jones' wife was 
killed in the brutal rampage of James Johnson, from whose conviction 
and sentence Justice White dissented on legal grounds concerning the 
lack of competent representation the defendant received during the 
trial. All Senators give their respect and sympathy to Sheriff Jones 
and his family.
  I also understand the petition sent by the Missouri Sheriffs 
Association to the Judiciary Committee as a result of Sheriff Jones' 
letter to other Missouri sheriffs. In early October, the Judiciary 
Committee received that petition along with a copy of Justice White's 
dissent in the Johnson case with a cover letter dated September 27. It 
is a statement of support for Sheriff Jones and shows remarkable 
restraint. The 63 Missouri county sheriffs and 9 others who signed the 
petition ``respectfully request that consideration be given to [Justice 
White's dissenting opinion in Johnson] as a factor in the appointment 
to fill this position of U.S. District Judge.''
  I want to assure the Missouri Sheriffs Association and all Senators 
that I took their concern seriously and reconsidered the dissent in 
that case to see whether I saw in it anything disqualifying or anything 
that would lead me to believe that Justice White would not support 
enforcement of the law. I respect them for having contacted us and for 
the way in which they did so. It is terribly hard to continue to honor 
those we have loved and lost by respecting the rule of law that 
guarantees constitutional rights to those accused, tried, and convicted 
of killing innocent members of our dedicated law enforcement community.
  Whether the nomination of Justice White or consideration of the legal 
issues considered in his opinions ``sparked strong concerns'' among 
Missouri law enforcement officers, or whether controversy about this 
nomination was otherwise generated, I am not in position to know. I do 
know this: I respect and consider seriously the views of law 
enforcement officers. As a former State's Attorney and former

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Vice President of the National District Attorneys Association, I hear 
often from local prosecutors, police and sheriffs, both in Vermont and 
around the country. I work closely with local law enforcement and 
national law enforcement organizations on a wide variety of issues. I 
know from my days in local law enforcement that there are often 
disagreements between police and prosecutors and with judges about 
cases. I respect that difference and understand it.

  With respect to the views expressed by law enforcement 
representatives on Justice Ronnie White's nomination, both for and 
against, I say the following: I have considered each of the letters 
produced during the course of the Senate debate and reconsidered the 
cases to which they refer. I respectfully disagree that those decisions 
present a basis to vote against the confirmation of Justice Ronnie 
White to the federal court. Far from presenting a pattern of 
``procriminal jurisprudence'' or ``tremendous bent toward criminal 
activity,'' they are dissents well within the legal mainstream and well 
supported by precedent and legal authority. Further, if considered in 
the context of his body of work, achievements, and qualifications, they 
present no basis for voting against this highly qualified and widely 
respected nominee. I conclude, as did the Missouri State Lodge of the 
Fraternal Order of Police, that ``our nation has been deprived of an 
individual who surely would have proven to be an asset to the Federal 
Judiciary.''
  With all due respect, I do not believe that any constituency or 
interest group, even one as important as local law enforcement, is 
entitled to a Senate veto over a judicial nomination. Each Senator is 
elected to vote his or her conscience on these judicial appointments, 
not any special interest or party line. When Senators do not vote their 
conscience, they risk the debacle that we witnessed on October 5th, 
when a partisan political caucus vote resulted in a fine man and highly 
qualified nominee being rejected by all Republican Senators on a party 
line vote.
  It is too late for the Senate to undo the harm done to Justice White. 
What the Senate can do now is to make sure that partisan error is not 
repeated. The Senate should ensure that other minority and women 
candidates receive a fair vote. We can start with the nominations of 
Judge Richard Paez and Marsha Berzon, which have been held up far too 
long without Senate action. It is past time for the Senate to do the 
just thing, the honorable thing, and vote to confirm each of these 
highly qualified nominees. Let us start the healing process. Let us 
vote to confirm Judge Richard Paez and Marsha Berzon before this 
session ends.
  I ask unanimous consent that a copy of the October 21, 1999 letter 
from the Missouri State Fraternal Order of Police be printed in the 
Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                        Fraternal Order of Police,


                                         Missouri State Lodge,

                                                 October 21, 1999.
     Sheriff Philip H. McKelvey,
     President, National Sheriff's Association,
     Alexandria, VA.
       Dear Sheriff McKelvey: I am writing on behalf of the more 
     than 4,500 members of the Missouri State Fraternal Order of 
     Police to express my great consternation at your 
     organization's recent opposition to the confirmation of 
     Justice Ronnie White to the Federal bench, an opposition 
     which I sincerely hope was not simply politically motivated.
       The record of Justice White is one of a jurist whose record 
     on the death penalty has been far more supportive of the 
     rights of victims than of the rights of criminals. While in 
     fact voting 17 times for death penalty reversals, he has 
     voted to do so in far fewer instances than the other Justices 
     on the Court. In addition, Justice White has also voted to 
     affirm the death penalty in 41 cases.
       The Fraternal Order of Police is no stranger to fighting to 
     see that justice is served for slain law enforcement officers 
     and their families. Our organization has been at the 
     forefront of bringing to justice Munia Abu-Jamal, 
     establishing a nationwide boycott of individuals and 
     organizations which financially support the efforts of this 
     convicted cop killer. In addition, the FOP led the fight 
     against President Clinton's clemency of 16 convicted Puerto 
     Rican terrorists responsible for a wave of bombing attacks on 
     U.S. soil and the wounding of three New York City police 
     officers.
       Unfortunately however, nothing can undo the needless injury 
     which has been inflicted on the reputation of Justice White, 
     and our nation has been deprived of an individual who surely 
     would have proven to be an asset to the Federal Judiciary.
       On behalf of the membership of the Fraternal Order of 
     Police, I would encourage you to exercise greater judgment in 
     future battles of this sort. It is a great disservice to the 
     members of your organization, and the nation as a whole, to 
     choose to do otherwise.
           Sincerely,
                                                  Thomas W. Mayer,
     President, Missouri State FOP.

                          ____________________