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Senate Floor: NOMINATION OF ROSEMARY BARKETT, OF FLORIDA, TO BE U.S. CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT

  • Jesse Helms
    Person
  • Trent Lott
    Person
  • Orrin G. Hatch
    Person
  • Don Nickles
    Person
  • Bob Graham
    Person
  • John McCain
    Person
  • Larry Craig
    Person
  • Alan Simpson
    Person
  • Chuck Grassley
    Person
  • Bill Roth
    Person
  • George J. Mitchell
    Person
  • Ted Kennedy
    Person
  • Malcolm Wallop
    Person
  • Conrad Burns
    Person
  • Barbara A. Mikulski
    Person
  • David Durenberger
    Person
  • Not Labeled
    Person
  • Wendell Ford
    Person
  • Chris Dodd
    Person
  • Joe Biden
    Person
Unknown

Jesse Helms

Very Negative
Mr. President, all my life I have heard, as the distinguished occupant of the chair has heard, that everybody talks about the weather but nobody does anything about it. I have been in the Senate going on 22 years, and I think every year I have been here -- maybe minus 1 or 2 -- there has been a crime bill and there have been all sorts of assurances that this is going to take care of the crime problem once and for all. The crime bill is going to stop the crime in the streets. It is going to put an end to drug trafficking. It is going to stop the murders. 7

Jesse Helms

Very Negative
I know these statements were made by men and women in good faith. But I have come to the conclusion -- now that I am older than I have ever been before and have thought much about the crime situation and crime legislation -- that we are not going to solve the crime problem in America until we solve one or two other problems first. 8

Jesse Helms

Slightly Positive
Namely, we have to make up our minds, as Americans, that we are going to restore some fundamental principles in this country, principles on which and for which this country was founded. 9

Jesse Helms

Very Positive
I do not mean to sermonize, but as a society we have drifted so far away from being a good Nation. Of course, I am referring implicitly to Alexis de Tocqueville, the great French diplomat and scholar who came to this country in the middle of the 19th century in search of the genius of this relatively new country. 10

Jesse Helms

Unknown
Every school boy knows that story. Alexis de Tocqueville went everywhere in America. He went to the seaports and he went to the cities and he went to the towns and he went to the farms, and he said: They are not substantially different from what I have seen in my own homeland of France. 11

Jesse Helms

Very Positive
And then he went to one other place. And when he got back to France he recounted and recited all of the other trips he had made around America and he said: It was not until I went into the churches of America that I discovered the genius of America. Because there I found that these Americans, they seek to be good. They are not perfect, but they are trying to be good. And as long as America and Americans try to be good, America is going to be great. But when America stops being good, America will stop being great. 12

Jesse Helms

Very Positive
Mr. President, let us contrast that with the psychological attitude that is so prevalent today. Look at what we see on television. And, yes, there are some of us who have been ridiculed and mocked because we contend that traditional values such as prayer in school ought to be restored. School prayer, and the respect for morality that it engenders, was taken away back in the 1960's by an unwise Supreme Court that completely misinterpreted history and the U.S. Constitution. But school prayer ought to be restored. And fundamental civil and personal decency ought to be restored, as well as concern for one's fellow human beings. 13

Jesse Helms

Very Negative
Mr. President, no crime bill can substitute for that. 14

Jesse Helms

Very Positive
I was struck by these thoughts 2 or 3 months ago when President Clinton came up for his State of the Union Address. My soul, I have heard few more eloquent human beings in my life. He can look you right in the eye and tell you something that you know is not so, and you halfway believe it. He is without question a charming man in the podium. And he was certainly charming that night. 15

Jesse Helms

Neutral
I remember his exhortation to the American people -- and he held up his hand -- "Let us reclaim our streets from violent crime and drugs and gangs." And they stood up as one in the House of Representatives and cheered. And well they should, because we should reclaim our streets. 16

Jesse Helms

Very Negative
Then he said, "While Americans are more secure from threats abroad, I think we all know that in many ways we are less secure from threats here at home. Every day the national peace is shattered by crime * * *" And at that point, Members stood up again and cheered. If you watched it on television, you got sick and tired of people getting up and sitting down, getting up and sitting down, every time the President finished a sentence. 17

Jesse Helms

Very Positive
The President continued, "Violent crime and the fear it provokes are crippling our society, limiting personal freedom, and fraying the ties that bind us." That is pretty good rhetoric, Mr. President. I wish I had thought of it myself. As Ronald Reagan said afterward, "Imitation is the sincerest form of flattery, but this is wholesale robbery." And then Mr. Clinton said, "The crime bill before Congress gives you a chance to do something about it, a chance to be tough and smart. And what does that mean? Let me begin by saying I care a lot about this issue." Well, I remember thinking -- knowing that Mr. Clinton had nominated the chief justice of Florida's Supreme Court to sit on the U.S. Court of Appeals for the Eleventh Circuit -- I thought mercy, is he really going to put this lady on the U.S. Court of Appeals feeling as he says he does about crime? 18

Jesse Helms

Very Negative
Mr. Clinton continued his speech and said, "My fellow Americans, the problem of violence is an American problem. It has no partisan nor philosophical element. Therefore, I urge you to find ways as quickly as possible to set aside partisan differences and pass a strong, smart, tough crime bill." Tough words. Tough words, I say to the distinguished occupant of the chair. And this is what the American people heard from their President. It was an impressive flow of rhetoric. That is what he said and continues to say, and it is what the American people approve of. 19

Jesse Helms

Very Negative
But you have to look and see what actions he is really taking on the issue of crime. For instance, today, the Senate is spending much of the day considering Mr. Clinton's nominee to sit on the Eleventh Circuit Court of Appeals the lady I just mentioned, namely, Rosemary Barkett. If confirmed, she will have lifetime tenure and will henceforth be accountable to no one. If she conducts herself as other liberal activists have on the bench, she will allow her liberal philosophy to permeate her decisions, using her judicial power to override the actions of the elected representatives of the people. 20

Jesse Helms

Very Positive
That is why I am here. I am no lawyer, and I sometimes brag about it. But I have the greatest faith and hope that the judicial system in this country will return to its proper constitutional role of interpreting and not rewriting the Constitution. 21

Jesse Helms

Unknown
But let us examine Judge Rosemary Barkett's record. 22

Jesse Helms

Slightly Positive
During her tenure on the Supreme Court of Florida, she has tried to prevent the enactment of laws to ban obscenity and preserve community order and decency, laws which I think everybody should acknowledge are important to community policing, which Mr. Clinton says he so strongly supports. 23

Jesse Helms

Leans Negative
She has issued a series of search and seizure decisions which if implemented, would severely hamper the ability of the police to enforce laws against drug trafficking and other crimes, the kind of crimes about which the President says he is so concerned and he said so eloquently a few short months ago in January. 24

Jesse Helms

Very Negative
This liberal lady judge has also endorsed a capital punishment theory that would make it impossible to impose the death penalty unless it is carried out according to racial quotas. She has attempted at every turn to make excuses for the acts of brutal criminals based on the fallacious liberal philosophy that criminals are the victims of society -- you know, the old society-is-to-blame game. 25

Jesse Helms

Very Negative
So I am inclined to say so much for Mr. Clinton's appeals regarding crime and punishment when he sends this Senate a judicial nominee more interested in making excuses for criminals than in having them held responsible for their actions -- a judge that believes that the criminals are the victims. 26

Jesse Helms

Very Positive
Mr. President, I am not going to take up much more of the Senate's time. I am shortly going to ask to have inserted in the Record an analysis of the nominee's record and a number of her judicial opinions. But before I do that, I do want to discuss a few of the cases which may help reveal to those watching on C-SPAN the kind of nominee Mr. Clinton has submitted to the Senate to sit on the U.S. Court of Appeals. 27

Jesse Helms

Neutral
In the case of Stall v. State (570 So. 2d 257 (Fla. 1990), for example, Chief Justice Barkett joined a dissent that called for striking down a State obscenity statute. She stated, "A basic legal problem with the criminalization of obscenity is that it cannot be defined." I say to the lady, with all respect, you are crazy as the devil. It can and has been defined by the U.S. Supreme Court -- I do not know why she could not find the case. It is called Miller versus California and was decided way back in 1973. 28

Jesse Helms

Very Negative
She went on to say in that opinion that the Florida obscenity law violated "every principle of notice and due process in our society." Senators may also be aware of Barkett's decision in Bostick v. State, which is cited as 544 So.2d 1153 (Florida 1989). In that case, the Broward County Sheriff's Department had tried to combat the flow of illegal drugs by randomly boarding, at scheduled stops, buses traveling interstate. Once on the buses, officers would ask the passengers for permission to search their luggage for drugs. 29

Jesse Helms

Very Negative
Now, a fellow named Bostick was a passenger on such a bus. The sheriffs boarded the bus. They announced they were narcotics agents. They asked Bostick for permission to search his luggage. Bostick consented to the search, and during the search, what do you know, the sheriffs discovered illegal drugs. 30

Jesse Helms

Very Negative
Now, in finding this search to be illegal -- and how she arrived at that conclusion baffles me -- Barkett wrote an opinion completely prohibiting the police from ever using this means of combatting drug trafficking again. 31

Jesse Helms

Somewhat Positive
And I say again, President Clinton was so eloquent in his address to the Joint Session of Congress. Oh, he was so eloquent. And then he sends up a nominee like this. 32

Jesse Helms

Very Positive
In her opinion in the Bostick case -- which was subsequently overturned by the U.S. Supreme Court (Florida v. Bostick, 111 S.Ct. 2382 (1991)) -- Barkett wrote: "This is not Hitler's Berlin, nor Stalin's Moscow, nor is it white supremacist South Africa." How does this mesh, I ask the presiding officer, with President Clinton's appeal to the American people to support the honorable and difficult work of our law enforcement officers? 33

Jesse Helms

Very Negative
Mr. President, there is more. As Senator Hatch concluded after her confirmation hearings: "Judge Barkett exhibits a clear tendency to strain for unconvincing escapes from the imposition of the death penalty." One of Justice Barkett's dissenting opinions would render the death penalty virtually unenforceable -- unless imposed on the basis of racial quotas. She laid out her theory in a dissent in Foster v. State (No. 76,639 (Florida, April 1, 1993)). This theory has been used in Senate debate by Senator Kennedy and others opposed to the death penalty. 34

Jesse Helms

Very Negative
Before voting on this nomination, Senators may wish to review a 1992 Florida Supreme Court case, Dougan v. State (595 So. 2d 1 (Florida 1992)). Dougan was the leader of a group that called itself the Black Liberation Army. According to the trial judge, its "apparent sole purpose * * * to indiscriminately kill white people and thus start a revolution and a race war." One evening in 1974, Dougan and four other members of his group went in search of victims. They picked up a white hitchhiker, Steven Orlando, drove him to an isolated trash dump, and stabbed him repeatedly. Dougan then put his foot on Orlando's head and shot him twice. In one of several tape recordings he made bragging about the murder, Dougan said: "* * * it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes." Justice Barkett and one her colleagues joined in a dissent calling for Dougan's death sentence to be reduced to life imprisonment, with eligibility for parole in 25 years, which stated: 35

Jesse Helms

Very Negative
Mr. President, the dissent concluded that giving Dougan a life sentence instead of the death penalty would be: 37

Jesse Helms

Very Negative
Mr. President, is this what President Clinton meant 3 months ago, when he told the American people that "those who commit crimes should be punished?" Adds Tallahassee prosecutor Ray Markey: "To say that this white victim was a sacrifice and call it a social awareness case -- that's scary." Mr. President, the outrageous rationale Judge Barkett agreed with in this opinion would justify killings by terrorists, and Mr. Clinton wants to elevate this woman to the Federal Court of Appeals. Has she not done enough damage in Florida already? 39

Jesse Helms

Somewhat Negative
Mr. President, the bottom line is that Congress can -- as called upon by President Clinton -- pass history's toughest crime bill -- but that will not make any difference in the world if the President turns around and appoints to the Federal bench individuals such as Rosemary Barkett, the pending nominee. 40

Jesse Helms

Very Negative
If this lady is confirmed and brings these points of view to the Federal judgeship to which she has been nominated, she is not going to help crime in the streets. She is going to help build up the incidence of crime in the streets and everything else. 41

Jesse Helms

Neutral
That is the reason I shall not and cannot support her nomination. 42

Jesse Helms

Very Positive
Mr. President, I ask unanimous consent that an analysis of this nominee prepared by Mr. Thomas L. Jipping of the judicial selection monitoring project and a copy of a column printed in the Washington Times of October 15, 1993, and written by Sam Francis, titled "Rosemary Barkett: Clinton Nominee," be printed in the Record at the conclusion of my remarks. 43

Orrin G. Hatch

Unknown
Mr. President, I yield 6 minutes to the distinguished Senator from Delaware. 286

Unknown
The PRESIDING OFFICER (Mr. Kerrey). The Senator from Delaware is recognized for 6 minutes. 288

Bill Roth

Leans Positive
Mr. President, among the most serious responsibilities that the constitution entrusts to those of us in this body is to provide our advice and consent regarding nominees to the Federal Bench. Every nominee, if confirmed, will potentially have a broadbased lifetime influence on the law. While we should be prepared to defer to the President's judgment in most cases, these nominees must be reviewed with careful scrutiny. 290

Bill Roth

Very Positive
Based upon her judicial record and her testimony before the Judiciary Committee, I must oppose the confirmation of Florida Chief Justice Rosemary Barkett to be a judge of the U.S. Court of Appeals for the Eleventh Circuit. In a number of cases, Chief Justice Barkett has gone well beyond the proper judicial role into that more properly occupied by the legislature, ignoring precedent and well-settled principles of law in the process. 291

Bill Roth

Very Negative
While I am troubled, for example, by Chief Justice Barkett's misuse of the Federal equal protection clause and of Federal substantive due process, which the nominee herself testified as being "careless," I am most disturbed by her philosophy regarding criminal law issues. At a time when violent crime has reached epidemic proportions throughout our Nation, I do not believe the American people will abide us confirming a nominee who has consistently and mistakenly accorded greater concern to those who break the law than to their victims or to those who enforce the law. 292

Bill Roth

Very Negative
Let me provide some examples of Justice Barkett's troubling criminal law decisions. In the case of Stall versus State, Justice Barkett joined a dissent striking down a State obscenity statute, stating that, "A basic legal problem with the criminalization of obscenity is that it cannot be defined." That statement is contradicted by the U.S. Supreme Court's landmark obscenity decision in Miller versus California, which the nominee failed to even mention in her dissent. 293

Bill Roth

Very Negative
Another important area of criminal law in which I believe Chief Justice Barkett goes beyond the acceptable limits of a judge's responsibility to fairly apply the law concerns death penalty cases. 294

Bill Roth

Very Negative
One of the most disturbing of Chief Justice Barkett's opinions was the dissent she joined in the death penalty case of Dougan versus State. This case has been much discussed during the course of this nomination process. Briefly, this involved a grotesque murder of a hitchiker, following which the killer sent tapes bragging about the murder to the victim's mother. The nominee joined a very troubling dissent that would have reduced the death penalty to life imprisonment, with eligibility for parole in 25 years. The dissent compared this cold-blooded, premeditated murder -- which the evidence indicated was motivated by racial hatred -- with the emotional conditions of a disenchanted marriage that results in domestic homicide. That was the basis on which she voted to not impose the death penalty. I believe this is an unacceptable standard for judges to use. We rely on judges to apply the law evenly and to objectively apply penalties based on the facts of the case. To expect less is to badly distort our criminal justice system. 295

Bill Roth

Very Negative
There are many other criminals cases which could be cited in which this nominee has shown an untoward concern for criminal defendants and only perfunctory concern for criminal victims. 296

Bill Roth

Very Negative
Judges have the ability to either enforce or reverse the efforts of legislators, police and prosecutors in fighting our Nation's violent crime problem. It does little good for Congress to pass tough crime bills if our efforts are thwarted by judges motivated more by sympathy for criminals than by an understanding of the fear honest citizens face each day on the streets of our Nation. What kind of message is the administration sending when it talks tough on crime in town meetings but sends up judicial nominees who are squishy soft on crime? I would urge my colleagues to reject this nomination. 297

Bill Roth

Unknown
Mr. President, I yield the floor. 298

Orrin G. Hatch

Unknown
Mr. President, I yield 9 minutes to the distinguished Senator from Iowa. 300

Unknown
The PRESIDING OFFICER. The Senator from Iowa, Mr. Grassley, is recognized for 9 minutes. 302

Chuck Grassley

Positive
Mr. President, I thank Senator Hatch for his leadership on this matter and taking the time to make sure that this issue is fully discussed. This nomination is important from the standpoint of the signal that it sends about the real predilection of this administration on judicial appointments. It is quite contrary to the direction that they want us to believe that they are taking, of being tough on crime. That aspect of this debate is as important as the personal qualifications of their nominee. 304

Chuck Grassley

Very Positive
So because of the importance of this nominee, as well as very substantive reasons for disagreeing with this nominee's qualifications to be on the eleventh circuit court of appeals, I rise to talk for a few moments about this nomination, and to say why I oppose Justice Rosemary Barkett for the U.S. court of appeals for the eleventh circuit. 305

Chuck Grassley

Neutral
When the Judiciary Committee considered this nomination -- that was just last month -- I voted against her. I want to explain the reasons why I will vote against her again today when the full Senate votes. 306

Chuck Grassley

Very Negative
First, I share the concerns that many of my colleagues have expressed regarding her theories on criminal law. Many of her decisions are quite inconsistent with President Clinton's stated stance of being tough on crime and wanting to do everything he can to fight crime. This nominee substitutes her own subjective sense of fairness, often finding defendants who have committed outrageously violent murders to be victims of their own circumstances. 307

Chuck Grassley

Somewhat Negative
Second, in my discussions with her, she conceded that she had made mistakes in some of her opinions, or that they were "inartfully drafted." Those last two words are her words. 308

Chuck Grassley

Negative
Mr. President, we must demand of people who are being placed on the judiciary, particularly on the highest courts of this land, the highest, and most rigorous standards. 309

Chuck Grassley

Very Negative
There can be no place for a judge on this court, or any court, who says that she "mistakenly" cited the U.S. Constitution in an obscenity case as a basis for her own reasoning that there was no standard under which obscenity can be defined. In making that statement, she ignored the Miller test and again applied her own standard of fairness. 310

Chuck Grassley

Very Positive
Third, I have very serious doubts about her impartiality. In a reapportionment case, among many that I could cite, she asserted that she would choose a specific reapportionment plan just because it was submitted by a particular party -- the NAACP. In her words: "because it is the organization that has traditionally represented the position that advances all minority interests." Will she decide other cases on the basis of who the litigant is instead of what the law is? And in the Echarte case, she wrote a dissent adopting the position of the Florida Trial Lawyers, stating that a cap on noneconomic damages in medical malpractice cases was unconstitutional. It just happens that that group had just named an award for her. She presented the award at the Florida Trial Lawyers Annual Dinner. 311

Chuck Grassley

Unknown
Let us look at the ABA code of judicial conduct, canon 2, in regard to this. It states: 312

Chuck Grassley

Unknown
Then in canon 3, the ABA code states that: 314

Chuck Grassley

Unknown
The Judicial Conference has interpreted these canons and applied them in situations involving Federal judges. There is a 1975 advisory opinion which states the following: 316

Chuck Grassley

Unknown
It goes on to say: 318

Chuck Grassley

Positive
Canon 5 cautions against a judge being a speaker or guest of honor at an organization's fundraising events. The canon states: 321

Chuck Grassley

Very Positive
I am not familiar enough with the trial lawyers' dinner in this specific case to know if it was in fact a fundraiser. But I do not think there can be any disagreement about the legal and political positions of the trial lawyers, and they were before the Florida Supreme Court in the Echarte case at the time Justice Barkett lent her name to the award. 323

Chuck Grassley

Slightly Negative
For these reasons, I cannot support elevating Justice Barkett to the eleventh circuit. 324

Chuck Grassley

Unknown
I yield the floor and the remainder of the time allotted to me. 325

Orrin G. Hatch

Unknown
Mr. President, how much time does the distinguished Senator from Idaho need? 327

Larry Craig

Unknown
Five minutes. 329

Orrin G. Hatch

Unknown
I yield 5 minutes to the Senator from Idaho [Mr. Craig]. 331

Unknown
The PRESIDING OFFICER. The Senator from Idaho [Mr. Craig], is recognized. 333

Larry Craig

Very Positive
Mr. President, I thank my colleague from Utah, the ranking senior Republican on the Judiciary Committee, for yielding me time to speak in relation to the nomination of Chief Justice Rosemary Barkett to a seat on the U.S. court of appeals of the eleventh circuit. 335

Larry Craig

Positive
Some today have called literally any opposition to this confirmation politically motivated. However, as my colleagues know, in the past I have voted to confirm even when political beliefs of the nominee differed radically from my own. 336

Larry Craig

Very Positive
Frankly, not all of my advisers have thought that wise. In fact, some of my constituents would prefer me to make political beliefs a litmus test for judicial nominees. My respect for the Constitution, though, frankly, Mr. President, prohibits me from doing that. 337

Larry Craig

Slightly Negative
If the President's powers to nominate a judge means anything, it must mean the power to nominate one of the President's own philosophical bent or political views. But, just as important, if the Senate's power to confirm means anything, it must mean the responsibility to disagree with the President when the nominee is unqualified for reasons other than political beliefs. 338

Larry Craig

Very Positive
My decision on a judicial nominee is based on my evaluation of his or her character, competence, and judicial philosophy; that is, how the nominee views the duty of the court and its scope and authority. It is my strong belief that members of the Federal judiciary should neither rubberstamp legislative decisions nor overreach to act as a substitute legislator. 339

Larry Craig

Very Positive
In this case, character is not in question. On the contrary, there is much to admire about a nominee who overcame language and cultural barriers to become the first woman to serve on the Florida Supreme Court, whose background includes service as a nun and a school teacher, who is a highly regarded and awarded achiever for the Florida bar. 340

Larry Craig

Very Positive
As to competence, I know this nominee received the American Bar Association's highest rating. Even so, I am aware that some members of the legal profession believe Justice Barkett's very unusual handling of constitutional and other issues puts her competency in reasonable question. While that may be a legitimate and important subject to debate among lawyers and judges trained in legal theory, I am not going to attempt to enter into that scholarly debate -- except to note in passing that competence does not appear to be a question in this instance. 341

Larry Craig

Leans Negative
Some of those unusual opinions do, however, concern me because of what they reveal about the nominee's judicial philosophy. In short, this judge does not appear to be constrained by constitutional limits or on judicial decisionmaking, and instead has given every indication that she is likely to pursue a political activist agenda if appointed to a position on the Federal bench. 342

Larry Craig

Very Negative
An example that I found particularly striking was her opinion on the LeCroy case. The perpetrator in the case was 17 years and 10 months old at the time of the crime. The sentencing judge found that this was no constitutional bar in imposing a death penalty. Although he gave careful consideration to the age factor, he found the individual in question was mentally and emotionally mature enough to have realized the difference between right and wrong in the brutal killing of another human being. Furthermore, it was a longstanding principle of Florida law that a child of any age charged with a capital crime must be tried and handled in every respect as if he or she were an adult. 343

Larry Craig

Very Negative
The Florida Supreme Court voted 6 to 1 to affirm the death penalty, with Judge Barkett the lone dissenter. Remarkably, her view was that imposing the death penalty violated both the Florida law and the eighth amendment to the U.S. Constitution, a position the U.S. Supreme Court later rejected. 344

Larry Craig

Very Negative
This Senator was one of the majority in this body who voted 6 months ago to table a proposal banning the death penalty for juveniles. I can understand the discomfort some have with this issue, and I can even understand why Justice Barkett may have personally abhorred the decision of the sentencing judge. However, that does not justify ignoring State law forcing Federal jurisprudence to conform to her own sociological theory. 345

Larry Craig

Positive
There are clearly other issues that question whether this person, if properly placed, will stay within the bounds of the Constitution or move on as she has throughout her career on her political philosophy in rendering decisions based on that. It is for that reason that I stand in opposition to her confirmation and will vote accordingly. 346

Larry Craig

Unknown
I yield back the remainder of my time. 347

Unknown
The PRESIDING OFFICER. Who yields time? 349

Orrin G. Hatch

Unknown
I yield 5 minutes to the minority whip. 351

Unknown
The PRESIDING OFFICER. The Senator from Wyoming is recognized. 353

Alan Simpson

Very Positive
Thank you, Mr. President. I want to make a very brief comment about this nomination. Mr. President, Justice Barkett and I had a long visit in my office to discuss some of her cases, as well as her background and qualifications for the circuit court of appeals position to which she has been nominated. It was a very good visit. I was very impressed by her as a person, and I enjoyed very much my time with her. 355

Alan Simpson

Very Positive
We discussed a few of Justice Barkett's more controversial cases, and she explained her position and the reasons for her decisions or dissents. I thought that was very important. 356

Alan Simpson

Very Positive
Mr. President, in most cases she attributed the controversy over her decisions to the critics lack of understanding of "capital punishment jurisprudence." Justice Barkett pointed out that the Supreme Court requires justice's "to look behind every case -- considering aggravating factors as well as mitigating factors." That is indeed the law of the land, but I do not agree with Justice Barkett's application of that law in certain cases during the years she has served on the Supreme Court of Florida. 357

Alan Simpson

Positive
Mr. President, I want to point out here that Justice Barkett obviously has the legal and judicial experience for the Federal bench, and I have no doubt that her judicial temperament is fully acceptable and appropriate. 358

Alan Simpson

Negative
However, I am very disturbed when she finds it necessary during her hearing before the Judiciary Committee to retract or explain that she mis-spoke -- "mis-wrote" actually would be the term -- when she cited the U.S. Constitution as the basis for a decision she authored in a particular case. That simply should not occur. 359

Alan Simpson

Very Negative
I am also concerned that Justice Barkett may too quickly, and too often, see the criminal as a "victim of society," and argue that the criminal's illegal activity should somehow be mitigated because of the perceived injustices that he or she has suffered at the hands of our society, a convenient scapegoat in our times. 360

Alan Simpson

Slightly Negative
I do not believe that the courts should somehow attempt to excuse criminal activity by placing a share of responsibility for heinous crimes on society. 361

Alan Simpson

Neutral
I am also concerned that Justice Barkett seems, in some instances at least, to stretch far in efforts to reach a position that I fear may represent her personal views more than it represents existing law and precedent. 362

Alan Simpson

Slightly Positive
That constitutes judicial activism, one of the most important disqualifications for a Federal judgeship, as far as I am concerned. 363

Alan Simpson

Very Positive
Mr. President, I firmly believe that the President has not only the duty, but also the right, to choose nominees to the Federal judiciary who share his views. We must expect that he will nominate persons who share his philosophy and ideology. 364

Alan Simpson

Somewhat Negative
And when the nominee is qualified by education, experience and judicial temperament, he or she should not be opposed because I, or any other senator, disagree with the ideology of the nominee. 365

Alan Simpson

Very Positive
However, the ideology and the social values of the nominee must be within the "mainstream" of American views and values. 366

Alan Simpson

Very Negative
At a time when crime, particularly violent crime, is viewed by the American public as the most serious problem facing our country, and at a time when the Congress is debating legislation to deal in a firm and serious way with violent crime, and at a time when the President of the United States is calling for congressional action to address violent crime, I believe we must look closely at the thinking and the social values of judicial nominees who will be dealing with this very serious problem. 367

Alan Simpson

Very Negative
I have reluctantly decided that Justice Barkett's views of the criminal and the causes of criminal activity, and her record on and the application of the criminal laws and sentencing are not within the mainstream of American thinking on this issue. 368

Alan Simpson

Very Positive
This, combined with Justice Barkett's tendency toward judicial activism, has brought me to the conclusion that I must vote against the confirmation of Justice Barkett to the U.S. Court of Appeals. 369

Alan Simpson

Very Positive
I thank the Chair, and I thank my colleague from Utah and commend him on his fine work as the ranking member of the Senate Judiciary Committee. 370

Alan Simpson

Somewhat Positive
I thank the Chair. 371

Unknown
The PRESIDING OFFICER. Who yields time? 373

Orrin G. Hatch

Unknown
Mr. President, I yield 15 minutes to the distinguished Senator from Mississippi. 375

Unknown
The PRESIDING OFFICER. The Senator from Mississippi is recognized. 377

Trent Lott

Very Positive
Mr. President, I thank the distinguished Senator from Utah for yielding me this time. I am sorry I have not been able to be here for all of the discussion. But I do think this is a very important nomination, and it goes way beyond just this particular nomination to a circuit court. 379

Trent Lott

Very Positive
I rise in opposition to the nomination of Judge Rosemary Barkett, currently the chief justice of the Florida Supreme Court, to be judge on the U.S. circuit court for the eleventh circuit. 380

Trent Lott

Unknown
Before I present my objections to this nomination, I want to talk briefly about the state of things in this country. Recently the issue of crime has overtaken the economy and, yes, even health care as the number one issue of Americans. There is a national sense of unease. 381

Trent Lott

Very Negative
I just spent 2 weeks back in my State, and I found that people have gone, when it comes to crime, from being concerned and worried and scared, to mad. They really do not understand the type of crime that we are having now -- crack cocaine in our schools, shootings in our schools, children carrying guns in our schools, senseless, motiveless drive-by shootings, and they really are angry about it and they want some action. 382

Trent Lott

Very Positive
They know the Federal Government cannot totally control it, but they know the Federal Government has a role, they know the States have a role, and the local governments and, yes, the individuals in the communities have a responsibility. 383

Trent Lott

Very Negative
But the main thing they want is some results. The American people want to stop the mayhem they see on our streets, not only in our big cities but in the suburban areas and in rural areas. Crime is everywhere. 384

Trent Lott

Very Negative
We have an executive or Presidential commitment to crack down on crime. The President has been having some events just this week to emphasize his concern about crime, and many of the things he talks about that we need to do, certainly I agree with. I offered the amendment in the Senate last year for three strikes and you are out: commit three violent felonies, and you get life. And the President stood in the well of the House of Representatives in his State of the Union Address this year, and he endorsed that concept. 385

Trent Lott

Slightly Positive
Now we have Harvard lawyers and social reformers and others saying, oh, well, the three-strikes-and-you-are-out amendment, it might fill up our jails. 386

Trent Lott

Very Negative
The only thing I run into when I have spoken to different groups from New York City to Mississippi, is why do you give them three violent crimes? 387

Trent Lott

Very Negative
So it makes good sense, and the President has endorsed it. So, we have a Presidential resolve of sorts. We have a legislative resolve because the Senate passed a very comprehensive crime package last year. The other body is having some difficulty getting its act together passing little slithers of the crime package. But today they are trying to get a bigger package together. I hope they do not follow their usual rule, which has been to be soft on the criminal and not worried at all about the victim. That is what has been basically the crime legislation that has come out of the House over the past 20 years. 388

Trent Lott

Slightly Positive
But we do have movement in this legislative area and that is important. 389

Trent Lott

Very Negative
But Americans are very uneasy about the third branch of Government. A recent Gallup Poll showed 83 percent of Americans felt that the judicial system is not harsh enough -- not harsh enough -- on criminals. 390

Trent Lott

Leans Positive
I do not want to put down the thousands of State and Federal judges who deal with wave after wave of criminal depravity every day. The American people appreciate it. It is a tough job. A lot of these judges do a wonderful job and they have innovative ideas for dealing with criminals and for trying to rehabilitate them where it may be possible. So you do not indict them all. 391

Trent Lott

Very Negative
But the problem with some judges is that they put their personal politics before the law, and the rights of society and the people upholding the law. There are judges who forget the first duty of Government is to protect life and property. There are judges in the Federal judiciary of this country who for the past 20 or 30 years have twisted the law and precedents to protect the thug, making the criminal a victim and leaving the real victim with no recourse. 392

Trent Lott

Very Positive
That went on for part of 1950's and 1960's and 1970's. In the 1980's, we started to slowly turn that around a little bit by getting, yes, if you will, strong law-enforcement lawyers and judges on the bench and moving them up the line. 393

Trent Lott

Very Negative
Judge Rosemary Barkett is an activist judge. She is one of those who has been worried about the criminal, sometimes appearing to forget about the victims. She has called criminals the victims of society. I have heard that somewhere before, usually in articles written by certain liberal groups and lawyers. 394

Trent Lott

Slightly Positive
Judge Barkett has written against curbs on obscenity and against curbs on unseemly public conduct. She backs organized labor instead of the rights of the working man or woman. And these are the reasons why I oppose her nomination to the U.S. Court of Appeals. I think she epitomizes, she is a perfect example of the problem with the Federal judiciary over the past 30 years, and she has indicated that time after time after time. 395

Trent Lott

Very Negative
Maybe she did go along with the death penalty sometime, but other times she dissented. I will not go over all the Florida cases that the Judiciary Committee has already looked at. Perhaps they have been mentioned on the floor. 396

Trent Lott

Neutral
But I ask unanimous consent that a summary of Judge Barkett's questionable decisions be printed in the Record at the conclusion of my remarks. 397

Unknown
The PRESIDING OFFICER. Without objection, it is so ordered. 399

Unknown
(See exhibit 1.) 400

Trent Lott

Very Negative
Let me point out what Judge Barkett has said about criminals. In 1991, in the Wickam versus State case, Wickam shot a man in the back, chest, and head and stole $4.05 from the corpse. Can you believe that -- kill a man for $4? 402

Trent Lott

Very Negative
The Florida Supreme Court voted to affirm the death sentence, but Judge Barkett dissented, blaming the "milieu of violence" that the killer grew up in. He had a rough life, therefore there were mitigating circumstances. Judge Barkett said the killer was "mentally deficient" and "socially maladjusted" -- thus, he should be spared. 403

Trent Lott

Very Negative
In the Dougan versus State case, 1992, the judge voted to overturn the death sentence of Jacob Dougan, who brutally murdered a teenager, and sent a tape describing the killing to the victim's mother. 404

Trent Lott

Very Negative
Now that is pretty heinous; worse than just about anything I ever heard of. You kill someone and then you send a tape of the killing to the victim's mother. Judge Barkett called the case a "social awareness case" and blamed the killing on "discordant racial relations which have permeated our society." I wonder what the victim's mother would have called it. 405

Trent Lott

Very Negative
In the Hall versus State case in 1993, Hall and an accomplice raped, beat, and shot to death a woman who was 7 months pregnant. The Florida Supreme Court again affirmed the death penalty, but Judge Barkett dissented. She said the killer had had "emotional deprivation" in his life. 406

Trent Lott

Very Negative
In Hudson versus State, in 1989, Hudson broke into his former girlfriend's house, killed her roommate when the roommate surprised him. The Florida Supreme court voted 6 to 1 to affirm the death penalty. Judge Barkett dissented, saying the fact that the killer had been "surprised by the victim during his burglarizing of the home" meant that he was "unable, to a certain extent, to conform his behavior to the requirements of law." That is a new one. How can burglarizing and murder ever confirm to "the requirements of the law?" There is more, but I will not take up that much more of the Senate's time. Judge Barkett was very evasive. And from what I saw during her hearing, Senators got very little information out of her. What we do know is what we have read of her opinions. This is a case where she has voted, she has ruled, she has written and her opinions are out of the mainstream. 407

Trent Lott

Very Positive
Over the past few weeks, I have been reading some of the comments of Senators here on the floor about possible Supreme Court nominees, and why they would not support this nominee or that nominee. One of the phrases I have heard is, he or she was out of the mainstream. Well, Judge Barkett is a nominee who is out of the mainstream. 408

Trent Lott

Somewhat Negative
Maybe intentionally or absent-mindedly, the administration has sent to this legislative body judicial nominees from the lower courts whose political philosophy overrules their duties of impartiality in judging the law. The political philosophy of some of these nominees also has been contrary to what the administration has been saying about crime in this country. Some of these past, present, and future nominees, not bound by State or local precedent, might use their Federal offices to further erode the protections that Americans should enjoy by right. 409

Trent Lott

Very Positive
The right to walk the streets safely at night, the right to see justice done, the right of victims to have redress -- all of these Americans are entitled to. Only a triple resolve of all three branches of Government -- the executive, the legislative, and, yes, especially the judiciary -- to make tough laws, to execute them faithfully, and to interpret them fairly -- only this would ensure the security that we deserve in this country. 410

Trent Lott

Very Negative
And when I talk to citizens and when I talk to law enforcement people, they say, without the cooperation of the courts, what use is there? If policemen arrest a criminal and they get out on a technicality because the policemen did not read them their rights just so, because they did not have the proper arrest papers, and the criminals' appeals go on, people get tired of that. The only way to stop this is to change the law, or change the judges who are misinterpreting the law in my opinion. 411

Trent Lott

Slightly Negative
President Clinton talks a lot about security, and he should. Some of his judicial nominees, though, undermine his message and undermine the law. Judge Barkett is one of these nominees. 412

Trent Lott

Leans Negative
I believe the President has a right to choose whomever he wants for a post, but the Senate has a right, under the Constitution, to reject that nominee. The President is not the only one that is responsible. We have a very high responsibility, especially when it comes to the judiciary. 413

Trent Lott

Neutral
And I put a greater emphasis on the judiciary than I do other executive branch appointments. I really am going to give the President the benefit of the doubt on a Federal Maritime Commission appointment or an Assistant Secretary of Education, unless there is some really debilitating problems. 414

Trent Lott

Very Positive
But when it comes to the judiciary and lifetime appointment to these appellate courts, the Senate really needs to ask questions, and we need to pursue their record with great relish. 415

Trent Lott

Very Negative
If we say to the American people that we want to get tough on crime, we should not be confirming some of these nominees. Anyone who seeks to undermine the law and public order should not become a Federal judge. 416

Trent Lott

Very Positive
This is not about politics. This is not about partisan politics. This is about the safety and security of the American people. 417

Trent Lott

Unknown
It is time for Senators to not only talk the talk but walk the walk. This vote is not about the nominee; it is about her record. 418

Trent Lott

Very Negative
The question for us today is, will our rhetoric match our actions? We talk tough on crime and yet if we let a judge go through confirmation with this long history of voting to let criminals off the death penalty and a whole myriad of other areas, then we are not going to pass muster. 419

Trent Lott

Very Positive
A vote for this nominee -- for this philosophy -- says to the American people that all we have to offer them is rhetoric, not judges who will help make the streets safe by rightly interpreting the law. 420

Trent Lott

Very Negative
Judge Barkett is an activist judge who will sabotage this Nation's fight against criminals. Let me say again that she has been the most antideath-penalty member of the Florida Supreme Court. She has a record. She believes antiobscenity laws are unconstitutional. She has struck down antiloitering laws used against drug-dealing and prostitution. 421

Trent Lott

Very Negative
Judge Barkett believes cold-blooded murderers are victims of society, and has voted to restrict police powers. 422

Trent Lott

Very Negative
Tell me, is this a judge who will be tough on crime? Obviously, no. From now on, the standard judicial nominees will have to meet is whether they have been tough on crime. I think the American people are demanding that. 423

Trent Lott

Very Negative
If these nominees have not been tough on crime, then they should not be confirmed. Judge Barkett has been soft on criminals in many, many instances. 424

Trent Lott

Very Negative
Oh, perhaps you could say she voted for the death penalty here or there. But in many, many instances she voted against it. In many instances, she voted what most people would say were soft-on-crime positions, "Because of society." So I urge my colleagues to vote against her confirmation. 425

Trent Lott

Unknown
I yield the floor. 426

Unknown
The PRESIDING OFFICER. Who yields time? 439

Trent Lott

Unknown
Mr. President, I suggest the absence of a quorum and I ask the time be equally divided. 441

Unknown
The PRESIDING OFFICER. Without objection, it is so ordered. 443

Unknown
The clerk will call the roll. 444

Bob Graham

Slightly Positive
Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. 448

Unknown
The PRESIDING OFFICER. Without objection, it is so ordered. 450

Bob Graham

Slightly Positive
Mr. President, I ask unanimous consent that the vote on the confirmation of Rosemary Barkett to be U.S. circuit judge for the eleventh circuit court of appeals be set for 3:15 p.m. 452

Unknown
The PRESIDING OFFICER. Without objection, it is so ordered. 454

Bob Graham

Unknown
Mr. President, I suggest the absence of a quorum and ask that the time under the quorum call be equally divided. 456

Unknown
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk will call the roll. 458

Orrin G. Hatch

Slightly Positive
Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. 462

Unknown
The PRESIDING OFFICER. Without objection, it is so ordered. 464

Orrin G. Hatch

Slightly Negative
Mr. President, some have suggested that the Foster case is not as broad as some of the critics say. I believe the distinguished Senator from Florida has made that suggestion. 466

Orrin G. Hatch

Unknown
Let me just say this. 467

Orrin G. Hatch

Very Positive
Justice Barkett's partial dissent in the Foster case adopts an approach that is akin to the so-called Racial Justice Act that the Senate has repeatedly rejected, and rightly so. As I have pointed out, Justice Barkett's approach in Foster would effectively paralyze enforcement of the death penalty. 468

Orrin G. Hatch

Very Positive
Now, Senator Graham of Florida has defended Justice Barkett's Foster opinion. In particular, he has claimed that her approach was highly specific compared to that proposed by the so-called Racial Justice Act, which Senator Graham has opposed. Senator Graham attached to his remarks a purported copy of Justice Barkett's Foster opinion. 469

Orrin G. Hatch

Very Positive
Curiosly, for one reason or another, the copy of Justice Barkett's Foster opinion that is attached to Senator Graham's comments omits three key paragraphs from that opinion -- paragraphs that conclusively rebut the contention that Justice Barkett's approach in that case is highly specific or indeed significantly different in any respect from the so-called Racial Justice Act. In particular, Justice Barkett asserts in these missing paragraphs: 470

Orrin G. Hatch

Somewhat Positive
So much for the claim that Justice Barkett's approach in Foster was limited to allegations of specific acts of racial discrimination. 472

Orrin G. Hatch

Very Positive
This is hardly the first time that the supporters of Justice Barkett have made false claims in her defense. Indeed, the strategy of her supporters -- especially of the White House -- appears to be one of misstatements and misdirection. This is not surprising, since a candid assessment of Justice Barkett's record shows that she is starkly at odds with the President's tough-on-crime rhetoric. 473

Orrin G. Hatch

Unknown
The standard for reviewing judicial nominees must be less deferential than the standard for reviewing executive branch nominees. 474

Orrin G. Hatch

Unknown
Federal judges have lifetime tenure and are unaccountable to the political branches. 475

Orrin G. Hatch

Very Positive
If the President nominates liberal activist judges, they will override the political branches and impose their own agenda in the guise of constitutional and statutory interpretation. The second point I would like to make here is the basic measure of any lower court nominee's fitness for the Federal bench is whether that nominee will faithfully apply Supreme Court precedent and will construe the Constitution and the Federal laws as they are written, or whether that nominee will instead attempt to impose his or her own policy or ideological preferences. 476

Orrin G. Hatch

Slightly Positive
In the constitutional arena, this standard has important application with regard, for example, to the equal protection and due process clauses, which, if misused, can become completely unconstrained tools of judicial activism. 477

Orrin G. Hatch

Positive
This standard is also particularly important in a broad array of criminal law matters. For example: Search-and-seizure law: The fourth amendment strikes a careful balance between the interests of the community in detecting crime and the interests of suspects in not being subjected to unreasonable searches and seizures. Overly expansive readings of search-and-seizure protections cripple the police battle against drug dealing and other crimes. Will the nominee be faithful to Supreme Court precedent in this area? Or will the nominee evade or misconstrue Supreme Court precedent and find new ways to hamstring the police? 478

Orrin G. Hatch

Very Positive
Maintaining community standards: The Constitution and Supreme Court cases leave local communities substantial leeway to combat such scourges as obscenity, drug dealing, and prostitution. Will the nominee respect the rights of communities to regulate these illegal activities? Or will the nominee twist the Constitution to interfere with communities' ability to protect themselves from these crimes? 479

Orrin G. Hatch

Very Negative
Holding criminals accountable: Criminals can and should be held full accountable for their crimes. Does the nominee recognize that society is victimized by criminals? Or does the nominee believe that the criminal is the victim of society? 480

Orrin G. Hatch

Very Negative
Death penalty. Will the nominee consistently apply Supreme Court precedent? Or will the nominee strain for unconvincing escapes from imposing the death penalty? 481

Orrin G. Hatch

Very Positive
Florida Chief Justice Rosemary Barkett, President Clinton's nominee to the important eleventh circuit seat, does not measure up to this minimal standard. Justice Barkett believes that a "basic problem with the criminalization of obscenity is that it cannot be defined" -- even though the Supreme Court has set forth in unmistakable terms how it can be defined. She believes that laws against obscenity "run counter to every principle of notice and due process in our society." That is important stuff. I do not see how anybody on this floor can misconstrue it. 482

Orrin G. Hatch

Positive
Justice Barkett has voted to strike down narrowly tailored antiloitering laws that are essential to community policing, including laws prohibiting loitering for the purposes of drug dealing and loitering for the purpose of prostitution. 483

Orrin G. Hatch

Positive
Justice Barkett has a pattern of unduly restrictive fourth amendment search and seizure decisions that would hamstring police in their battle against drugs. Two of her opinions have been reversed by the Supreme Court, another has been criticized, and two others have been dissents. 484

Orrin G. Hatch

Somewhat Negative
Justice Barkett too often subscribes to criminal-as-victim-of-society rhetoric. This is illustrated by the extraordinary dissent she joined in the Dougan case, which involved an extremely vicious and heinous murder. Senators voting on this nomination should read cases like Dougan. 485

Orrin G. Hatch

Very Negative
While it is true that Justice Barkett has voted to enforce the death penalty on a substantial number of cases, she has clearly been the single most anti-death-penalty member of the Florida Supreme Court. Moreover, she has exhibited a clear tendency to strain for unconvincing escapes from the death penalty in numerous cases. She has also adopted a position -- akin to the Racial Justice Act that the Senate has repeatedly rejected -- that would virtually paralyze implementation of the death penalty unless it is imposed on a quota basis. 486

Orrin G. Hatch

Very Negative
Concerns over Justice Barkett's nomination for the Federal appellate bench extend beyond her criminal law record. Her constitutional decisionmaking reflects a clear failure to follow precedent. For example, she took the position in a dissent that a statutory cap on noneconomic damages in medical malpractice cases violates the Federal equal protection clause -- a conclusion that simply ignored longstanding equal protection principles. 487

Orrin G. Hatch

Slightly Positive
Justice Barkett similarly misused the Federal equal protection clause and the Federal due process clause in other cases. Her record also raises a serious concern that she would be prone to impose her basic race and gender quotas. 488

Orrin G. Hatch

Very Positive
Certain actions that Justice Barkett has taken also raise certain questions about her impartiality and her adherence to the canons of judicial ethics. For example, in the medical malpractice case, she refused to recuse herself even though a trial lawyers group that had named an award after her was participating as an amicus -- and then she voted with the trial lawyers. In a redistricting case, she stated that she would favor one plan not on its inherent merits but simply on the organization that had proposed it. 489

Orrin G. Hatch

Very Negative
Justice Barkett's supporters say that she will follow Supreme Court precedent, but the simple fact is that she has not followed Supreme Court precedent: She has not followed Supreme Court precedent on the equal protection clause. She has not followed Supreme Court precedent on the due process clause. She has not followed Supreme Court precedent on fourth amendment search and seizure law. She has not followed Supreme Court precedent on obscenity. She has not followed Supreme Court precedent on the death penalty. She has not followed Supreme Court precedent in all of these very important fundamental areas. 490

Orrin G. Hatch

Very Positive
This is an important thing. I think none of us want to go against somebody we personally like, we personally think is a good person, but in all honesty she has not followed the precedents in all of these areas, and it is a dangerous thing to trust her, suddenly, that she is going to get on the court and follow Supreme Court precedents. 491

Orrin G. Hatch

Unknown
In all these other areas she has, instead, pursued a liberal judicial activist agenda, and there is every reason to believe that she will do so if confirmed to the eleventh circuit court of appeals. 492

Orrin G. Hatch

Very Negative
Mr. President, this is really important. We have at this time a President who is saying that he is going to be tough on crime; he is going to do everything he can to stop crime; he is challenging us up on Capitol Hill to provide him with his crime bill. I do not think the rhetoric matches the actions, while at the same time we have seen judge after judge up here who seems to be softer on crime than his rhetoric would imply, and this one in particular not only seems to be, she is, and that is one of the problems we have. 493

Orrin G. Hatch

Very Positive
Mr. President, I have to say that, again, this is a fine person. None of my remarks should have any bearing on that. I think she is a good person. I think she is well intentioned. But those are not the issues. 494

Orrin G. Hatch

Unknown
The issues are, will she follow the law as it is written or is she going to use her own social and ideological preferences and enact those into laws as a supermajority legislator from the bench? 495

Orrin G. Hatch

Very Negative
Frankly, I have not seen many judges in my 18-year history that really meet that qualification of being a legislator from the bench or a judicial activist in the worst sense of that term any more than this one has. And so I have to vote against her. 496

Orrin G. Hatch

Leans Positive
I understand that she will be confirmed here today. The fact is, I hope we do not have judges who have ignored the law as much as she has, come up here in the future. 497

George J. Mitchell

Very Positive
Mr. President, I wish to state just briefly that I strongly support the pending nomination. This is an outstanding person, an outstanding jurist, an outstanding judge, and someone who will serve with distinction on the Federal court. 499

George J. Mitchell

Very Negative
Now, an argument has been made about the President appointing people who are soft on crime. That is a popular political slogan. Someone is soft on crime. What does that mean? Are we supposed to believe that someone who is serving as a judge tolerates crime, condones crime, likes crime? The answer is, of course, "no" to all of those. 500

George J. Mitchell

Very Positive
What it does do is to create what I believe to be a false impression, that somehow in America if you believe in the Constitution, if you believe in the Bill of Rights, and if you believe in the rights of individual freedom and the limitations on the power of the government, you are somehow soft on crime. 501

George J. Mitchell

Very Negative
Mr. President, I served as a prosecutor at the State level and at the Federal level, and I daresay I am probably responsible for more criminals going to prison than most other Senators and, perhaps, all combined. 502

George J. Mitchell

Very Negative
And I say to you that here in America we can enforce the law and we can be tough on criminals without ignoring constitutional rights of law-abiding Americans. 503

George J. Mitchell

Leans Positive
It is a false choice to suggest that adherence to, commitment to, and a deep conviction in favor of the Bill of Rights, which preserves the liberties of individual Americans and limits the power of Government, somehow makes one soft on crime. How often we have heard this argument about technicalities being used to let criminals off. Frequently, those "technicalities" are rights that are included in the Constitution, in the Bill of Rights. 504

George J. Mitchell

Very Positive
Mr. President, I want to say that the most eloquent, most concise, and most effective statement of the individual liberties of human beings that has ever been devised and written down is the American Bill of Rights, the first 10 amendments to the Constitution. 505

George J. Mitchell

Very Positive
They set forth in a very brief, yet eloquent, way the values and principles which motivated the men who wrote the Constitution and the Americans who founded this great land. And it was this: that Americans are free people. And in order to ensure their freedom and to provide the broadest measure of individual liberty, we will restrain the power of Government. And that Bill of Rights is not a technicality. It is the essence of what makes Americans free. 506

George J. Mitchell

Very Negative
And I think we ought to have judges who honor the Bill of Rights. I think we ought to have judges who recognize that we can be tough on crime, that we can prosecute criminals, that we can punish criminals without violating the individual liberties of law-abiding Americans. 507

George J. Mitchell

Unknown
It is a false choice to think that we must choose one or the other. We do not have to. We can do both. And I think this kind of judge will do both. 508

George J. Mitchell

Very Positive
I encourage the Members of the Senate to vote for this nomination. 509

George J. Mitchell

Negative
I want to say that we are going to get a crime bill this year, a comprehensive crime control bill. And we are going to get it because of the leadership of President Clinton and Senator Biden, who is the chairman of the committee. And I thank Senator Hatch for the work he has done on that as well. 510

George J. Mitchell

Very Negative
We ought to do it in a way that meets both objectives -- tough on crime and observing and adhering to and revering rights guaranteed to every American under our Constitution. They are not inconsistent. They both can be attained, and we should attain them. 511

George J. Mitchell

Unknown
Mr. President, I yield the floor. 512

Unknown
The PRESIDING OFFICER. Who yields time? 514

Unknown
The Senator from Florida. 515

Bob Graham

Unknown
Mr. President, I yield such time as I might require. 517

Bob Graham

Very Positive
Mr. President, we have a unique responsibility today, the responsibility to place on one of the highest courts of the United States a person who will serve for the balance of her natural life. I am very honored to have the opportunity to urge my colleagues to vote for the confirmation of Rosemary Barkett to the eleventh circuit court of appeals. 518

Bob Graham

Very Positive
This is a person who, by virtue of her personal life experience, by virtue of her preparation and education, by virtue of her experience, is especially uniquely qualified to serve as a Federal appellate judge; the daughter of immigrants, an immigrant herself, a nun, a teacher, a private practitioner, a trial judge, an appellate judge, and now the Chief Justice of the Florida Supreme Court, a background, a wellspring of personal preparation, development and experience now being made available to the people of America. 519

Bob Graham

Positive
Those qualifications, Mr. President, are not just written on a resume on paper. They have been regularly, arduously, and consistently and affirmatively reviewed by the people of our State and now by the President of the United States of America. 520

Bob Graham

Neutral
She has three times been recommended for appointment to the judicial positions in our State through a rigorous judicial selection process. She has three times been appointed by Governors of our State to the highest positions of judicial responsibility. 521

Bob Graham

Positive
She has received the support of the broadest possible range of the people of our State, including the major law enforcement and police agencies. 522

Bob Graham

Very Positive
Most significantly, when she was placed before the people of Florida for a vote as to whether she should be retained in her position as a justice of the Florida Supreme Court, when she was subjected to exactly the same types of charges that have been made on this floor today, 61 percent of the people of Florida voted to retain this fine woman as a member of the Florida Supreme Court. 523

Bob Graham

Very Positive
I believe, Mr. President, that those repeated affirmative approvals of Rosemary Barkett indicate the respect in which she is held, the admiration and the confidence by those who know her best. 524

Bob Graham

Very Positive
Mr. President, I ask unanimous consent to submit for the Record a series of endorsements by organizations, law enforcement, legal and others, and editorial boards in support of the nomination of Rosemary Barkett for the eleventh circuit court of appeals. 525

Bob Graham

Very Positive
Mr. President, the question that has been asked is, "Will she carry out the law?" The statement has been made that she did not follow the edicts of the U.S. Supreme Court as it related to equal protection, to due process, to privacy, and a list of other items, a charge to which I would say she would enthusiastically plead guilty. And the reason is because she was not sitting as a Federal judge with responsibilities singularly for enforcing the Constitution of the United States of America. She took a dual oath of office to enforce not only the Constitution of the United States of America, but where it went beyond the standards available to all Americans to enforce the constitution of the State of Florida. 735

Bob Graham

Very Positive
Mr. President, let me just bring to your attention, as I did earlier today to the Members of the Senate, a provision which was adopted in our Constitution in 1980, 5 years before Justice Barkett became a member of the supreme court. It was adopted by an overwhelming vote of the people of Florida in November 1980. It is our State's right to privacy. That amendment reads: 736

Bob Graham

Very Positive
Mr. President, those words are part of the protections available through the Florida Constitution to the citizens of our State. The arguments against her would state that she was disqualified from being a member of the Federal judiciary because she had faithfully carried out the mandates of the State constitution to which she swore an oath of allegiance. Had she failed to do so, I think that would have been the disqualifying factor. Yes. Under provisions like that, as well as other State constitutional provisions, which give additional protections in important areas of equal protection and due process, she has judged the constitution of Florida as it has been interpreted in the past and as it is written, by the vote of the people, to give those additional protections. She has been a faithful jurist in discharging her responsibilities. 738

Bob Graham

Very Positive
Mr. President, if she had been less than that, she would not have had the support of the law enforcement agencies, of the legal community, of the leading observers of the civic life of our State, as she did when she continued in service in the Florida Supreme Court in 1992, and now, as she has been nominated by the President of the United States of America to serve in this high Federal judicial position. 739

Bob Graham

Negative
I am surprised that her opponents would essentially argue for a unitary judicial system in America, which would deny States the right to afford to their citizens a different standard of protection. 740

Orrin G. Hatch

Unknown
Will the Senator yield? 742

Bob Graham

Positive
Mr. President, I will finish my remarks, and then I will yield for whatever questions or comments the Senator cares to make. 744

Bob Graham

Very Positive
As Senator Mitchell referred to the first 10 amendments to the Constitution of the United States as being man's highest statement of human rights and civil rights, I point out that the 10th of those 10 first amendments was one which reserved to the States and to the people all powers not delegated by the Constitution to the central Government. The State of Florida and other States have exercised that reserve power, including exercising it to grant additional protections to the people of their State. 745

Bob Graham

Very Positive
Mr. President, in conclusion, this is a uniquely qualified woman to serve in the Federal judiciary. She has served our State with distinction for a significant portion of her adult life. She has met every test in terms of her personal, professional, and judicial qualifications, and has passed each of those tests. She has demonstrated her knowledge and her willingness to enforce the law. She has stated that she understands the difference between her service as a member of the Florida Supreme Court -- now the chief justice of the supreme court -- and the responsibilities she will have as a member of the Federal judiciary. And in her new position, she will follow the precedents as established by the U.S. Supreme Court. 746

Bob Graham

Positive
She has the support of law enforcement, of those persons who know what contributions she has made toward the provision of criminal justice in our State. 747

Bob Graham

Very Positive
Mr. President, this is a person whom I know personally; this is a person whom I recommend in the strongest terms for this important Federal judicial responsibility. 748

Bob Graham

Positive
I am now pleased to yield. 749

Orrin G. Hatch

Somewhat Positive
I thank my colleague for yielding. 751

Orrin G. Hatch

Very Positive
Mr. President, I know the distinguished Senator from Florida is very sincere and very dedicated in getting this nominee through. I admire him for that and appreciate it. Keep this in mind: When I listened to the majority leader saying that the Bill of Rights is what is involved here, I think it is the Bill of Rights. Nobody reveres the Bill of Rights more than I do. That is precisely why I do not think this judge should be confirmed. 752

Orrin G. Hatch

Very Positive
Secondly, the Senator from Florida has indicated that, yes, there have been some problems with Justice Barkett's not following Federal precedents. There really have, and she has admitted it. In the first place, the role of a State supreme court justice and of a Federal appellate court judge are absolutely identical in terms of their obligation to follow U.S. Supreme Court precedent on issues of Federal constitutional law. The issue is not whether she reads the Florida Constitution more broadly -- as has been argued here -- than the U.S. Constitution. The issue is that she has a clear pattern of misreading the U.S. Constitution and clear-cut Supreme Court precedent. That has to be said. Nobody believes in the Bill of Rights more than I do. That is why I do not think this judge should be confirmed for the circuit court of appeals. 753

Bob Graham

Very Positive
Mr. President, in the remaining 30 seconds, I will briefly respond. In case after case that has been cited on the principle that Justice Barkett is not following precedent, those are the cases which she resolved under State standards, not under Federal standards. There has been no allegation that she was not faithfully adhering to the law and precedent, and applying her judgment as she felt it appropriate to do to carry out her dual responsibilities as a State supreme court justice and to the Federal Constitution. 755

Bob Graham

Very Positive
She will meet that same high standard of fidelity and judicial commitment to the law as a judge on the Eleventh Circuit Court of Appeals, to which I am confident this Senate will soon confirm her. 756

Malcolm Wallop

Very Negative
Mr. President, last January 25, President Clinton used his State of the Union Address to assure Americans that he was tough on crime. He urged that we pass a "strong, smart, tough crime bill," and endorsed, among other things, boot camps for young offenders and the "three strikes, you're out" provision which mandates life in prison for criminals convicted of a third serious felony. 758

Malcolm Wallop

Slightly Positive
I applaud those statements. I would suggest, however, that what we need is not more rhetoric, but firm leadership, actions that speak louder than words. 759

Malcolm Wallop

Very Negative
A President who is tough on crime would not appoint judges who believe in coddling criminals because they are the victims of society. A President who was tough on crime would not appoint Justice Rosemary Barkett to sit on the U.S. Court of Appeals for the Eleventh Circuit. 760

Malcolm Wallop

Slightly Positive
In particular, I am referring to decisions by Justice Barkett that would severely hamper the ability of police officers to enforce laws against drug trafficking and other crimes. I am not a lawyer, Mr. President, but when the ranking member of the Judiciary Committee describes a pattern of unduly restrictive fourth amendment decisions on search and seizure then I understand that the result is a soft-on-crime approach. 761

Malcolm Wallop

Leans Negative
A person certainly does not have to be trained in the law to understand just how outrageous was the dissent in which she joined in the Dougan case. Let me briefly outline the facts in that case. 762

Malcolm Wallop

Very Negative
Dougan was the leader of a group called the Black Liberation Army, a group which had the sole purpose of killing white people in order to start a revolution and racial war. In 1974, Dougan and four other members of the group picked up a white hitchhiker, drove him to a dump, and repeatedly stabbed and then shot him in the chest and head. 763

Malcolm Wallop

Somewhat Positive
Later Dougan made several tape recordings bragging about the murder, describing it in graphic detail and stating that he thought it was beautiful and that he enjoyed every minute of the grisly scene. 764

Malcolm Wallop

Leans Positive
Dougan was ultimately sentenced to death because the trial court found aggravating circumstances and no mitigating circumstances. The Florida Supreme Court agreed. However, Justice Barkett joined in a dissent which stated: 765

Malcolm Wallop

Very Negative
On a side note, Mr. President, I find it ironic that a Senate which recently passed a strong anticrime measure containing a provision to enhance sentences for hate crimes -- where a defendant selects a victim because of race -- would affirm any nominee who finds hate a mitigating, rather than an aggravating factor. 767

Malcolm Wallop

Very Positive
This is just a short synopsis of Justice Barkett's record. This nomination typifies the hypocrisy of an administration that on the one hand says it is tough on crime but on the other does its level best to see that no one can, or will by their own admission ensure that happens. 768

Malcolm Wallop

Slightly Negative
President Clinton can use a high-visibility speech or he can use the weight of his office to convince America that he cares about the problem of crime. 769

Don Nickles

Very Positive
Mr. President, Rosemary Barkett, chief justice of the Florida Supreme Court, has been nominated to the U.S. Court of Appeals for the Eleventh Circuit. I am going to vote against her. 771

Don Nickles

Very Positive
To help explain my vote, I will refer to three capital punishment cases. These cases help illuminate Justice Barkett's views of life and the law -- and it seems to me that these views disqualify her for elevation to the court of appeals. 772

Don Nickles

Very Positive
Justice Barkett has, of course, written hundreds of opinions and participated in thousands of cases, and perhaps it is unfortunate that we must focus on a small number of her cases. I acknowledge that Justice Barkett has often, indeed usually, voted with the majority of her court. However, her dissents most vividly outline her views, and when we turn to the dissents we see most clearly those cases where she has drawn a line between her and her colleagues. 773

Don Nickles

Very Positive
Former Associate Justice William J. Brennan has written: 774

Don Nickles

Somewhat Negative
First, Dougan v. State, (595 So.2d 1 (Fla. 1992) (per curiam)), a case where a racially motivated murder was committed in the hope that it would trigger a race war. Here are the facts as reported by the court: 776

Don Nickles

Very Negative
Jacob Dougan and four of his friends belonged to the Black Liberation Army [BLA]. They were, perhaps, the only members of this group "whose apparent sole purpose was to indiscriminately kill white people and thus start a revolution and race war." In June 1974, Dougan and his accomplices drove around Jacksonville, FL, searching for victims, but they saw no one who could be murdered secretly. Dougan did, however, write a note that was to be placed on the body of the eventual victim. Later that night the BLA chose its victim, a lone, white hitchhiker named Stephen Orlando, age 18. Orlando was kidnaped, taken to an isolated garbage dump, stabbed repeatedly, and shot by Dougan. 777

Don Nickles

Very Negative
Dougan then took to bragging about the murder. He made audiotape recordings which he mailed to the media and, as if that weren't villainous enough, to the victim's mother. The following excerpt is from one of Dougan's tapes -- which the court said aptly illustrates their contents: 778

Don Nickles

Very Negative
At trial, one of Dougan's accomplices testified for the State, and the other four were convicted of murder. Only Dougan, however, was sentenced to death. The trial court found three aggravating factors and no mitigating factors. 780

Don Nickles

Negative
The dissent, which sought life imprisonment rather than death, was not written by Justice Barkett, but she joined it. It said: 781

Don Nickles

Slightly Positive
At her hearing in the Senate Judiciary Committee on February 3, 1994, Justice Barkett said that she was attempting to follow the law in Dougan, and that although she didn't pen the dissenting opinion she had no problem in agreeing with it. 783

Don Nickles

Very Negative
The majority of the Florida Supreme court said that the dissenters' logic in the Dougan case "would lead to the conclusion that the person who put the bomb in the airplane that exploded over Lockerbie, Scotland, or any other terrorist killer should not be sentenced to death if the crime were motivated by deep-seated philosophical or religious justifications." Mr. President, in his recent book, "The Moral Sense," Prof. James Q. Wilson writes of the "philosophical doubts, therapeutic nostrums, and ideological zealotry" that have "infected" the modern age. He said: 784

Don Nickles

Negative
Mr. President, I am unwilling to confirm Justice Barkett because this dissenting opinion sounds to me like an apology for murder -- so long as the murder is politically correct. I cannot vote for a judge who would write, or join, such an opinion. 786

Don Nickles

Very Negative
The second case is Cruse v. State, (588 So.2d 983 (Fla. 1991) (per curiam), cert. denied, 112 S. Ct. 2949 (1992), a case involving a notorious mass murderer and cop killer. Here are the facts as reported by the court: 787

Don Nickles

Unknown
In the spring of 1987, in Palm Bay, FL, William Cruse shot and killed rookie police officers Ronald Grogan and Gerald Johnson and four others. They were shot with a powerful semiautomatic rifle -- which Cruse had purchased a month earlier -- fitted with special ammunition clips -- which Cruse had purchased a week earlier. 788

Don Nickles

Very Negative
Cruse's first three victims were killed at a Kmart shopping center. When Cruse heard sirens approaching, he got in his car and drove across the street to another shopping center where he began firing into a Winn Dixie store. When officers Grogan and Johnson drove into the Winn Dixie parking lot in separate police cars, Cruse turned his attention from the store, inserted a fresh 30-round clip into his assault rifle, and fired eight times through Grogan's windshield, killing him. As Officer Johnson was getting out of his car, Cruse wounded him in the leg. Officer Johnson then attempted to find cover among the cars but Cruse pursued him and killed him with three shots. When a rescue team tried to retrieve Grogan's car, Cruse opened fire on them, shouting, "Where is the cop? Get away from the cop. I want the cop to die." At trial, the jury found Cruse guilty of six counts of first-degree murder and numerous other counts and recommended the death penalty for each of the murders. However, the trial judge upheld those recommendations only for the murders of Grogan and Johnson. All 12 jurors agreed that Officer Johnson's murder was worthy of the death penalty; 11 of them agreed that Officer Grogan's murder called for death. The trial judge concurred in both cases. On appeal, six of the seven members of the Florida Supreme Court also concurred -- the one exception was Rosemary Barkett. 789

Don Nickles

Very Negative
In sentencing Cruse to death, the trial court found one mitigating circumstance -- extreme mental or emotional disturbance -- to which it gave great weight. That court also found four aggravating circumstances, including that the murders were committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. 790

Don Nickles

Very Negative
Although Cruse had procured the weapons, clips, and ammunition in advance, driven to one shopping center and then another, reloaded before opening fire on Officer Grogan, and tracked Officer Johnson through the parking lot, Justice Barkett held that Cruse was too mentally disturbed for cool and calm reflection. Furthermore, she wrote, Cruse had acted with a pretense of moral or legal justification because he "was acting in response to his delusions that people were trying to harm him." Justice Barkett would have revoked the death sentences and imposed life sentences. 791

Don Nickles

Very Positive
Justice Barkett also dissented because she believed that the prosecution in Cruse had withheld evidence from the defense in violation of the U.S. Supreme Court's mandate in Brady v. Maryland, (373 U.S. 83 (1963)). On this ground, she would have reversed the convictions and remanded for a new trial. No other justice agreed with her on this point, either. 792

Don Nickles

Very Positive
Justice Barkett was asked about Cruse in her hearing before the Senate Judiciary Committee on February 3. She said she had merely followed precedent, and she asked not to be judged on this one case. 793

Don Nickles

Unknown
The question is, is Cruse an aberration, or is it illustrative? 794

Don Nickles

Very Positive
Senator Dole has pointed out that "Justice Barkett has never -- not once -- dissented from a majority decision of the Florida Supreme Court" when the court was overturning a capital sentence, but she has dissented more than 100 times when the court enforced a capital sentence (140 Cong. Rec. S1822 (daily ed. Feb. 24, 1994)). Her dissent in Cruse was one of those 100-plus dissents. Justice Barkett does not always oppose capital sentences, though. According to one count, she has voted to uphold them some 120 times. Here, then, is Justice Barkett's record: 795

Don Nickles

Neutral
Voted with majority to uphold capital sentence: some 120 times, Voted against majority when it upheld capital sentence: 100-plus times, Voted against majority when it struck down capital sentence: zero. 796

Don Nickles

Unknown
This is not, Mr. President, a balanced judicial record. 797

Don Nickles

Very Negative
The third case is, LeCroy v. State (533 So.2d 750 (Fla. 1988), cert. denied, 109 S.Ct. 3262 (1989)), a case where a double murder was committed by a 17-year-old. Here are the facts as reported by the court: 798

Don Nickles

Very Negative
The jury found LeCroy guilty of first-degree felony murder in the murder of Mr. Hardeman because the murder was part of a robbery. LeCroy was found guilty of first-degree premeditated murder in the murder of Mrs. Hardeman because that murder was committed to silence a witness. The jury recommended a life sentence for the murder of Mr. Hardeman but recommended death for the murder of Mrs. Hardeman. The trail judge agreed with the jury on both counts. 800

Don Nickles

Very Negative
In his sentencing order for the murder of Mrs. Hardeman, the judge found there aggravating circumstances and two mitigating circumstances. 801

Don Nickles

Slightly Negative
Florida, like all States, recognizes numerous distinctions between adults and minors, but a Florida statue provided that a minor of any age charged with a capital crime "shall be tried and handled in every respect as if he were an adult." The Florida Supreme Court deferred to the legislature's judgment and upheld the death sentence against the 17 year old. 803

Don Nickles

Very Positive
Only Justice Barkett dissented. She said: 804

Don Nickles

Very Positive
When asked about LeCroy at her Judiciary Committee hearing, Justice Barkett said she was applying principles she had derived from a case decided by the U.S. Supreme Court four months earlier. That case was Thompson v. Oklahoma, (48 U.S. 815 (1988) (plurality opinion), where the Court held that the Constitution of the United States does not allow capital punishment for a person who was 15 years old when he committed murder. To be more precise, the Court did not announce a flat rule against such executions, although four members of the U.S. Supreme Court were prepared to do so. Justice O'Connor, who cast the deciding vote, was willing to strike down the Oklahoma statute but unwilling to announce a per se rule. 806

Don Nickles

Neutral
On the other hand, the six-member majority of Justice Barkett's court gave four reasons for believing that Thompson versus Oklahoma did not control LeCroy. The reasoning of the majority was subsequently justified when a few months later in Stanford v. Kentucky, (492 U.S. 361 (1989)), the U.S. Supreme Court held that the Constitution of the United States does not forbid a State to impose capital sentences on persons who were 16 or 17 years old when they committed murder. At the time Stanford was decided, of the 37 States that permitted capital punishment, 25 States allowed the death penalty for 17 year olds and 12 States did not. (492 U.S. at 370 n. 2). 807

Don Nickles

Very Negative
In her dissent in LeCroy, Justice Barkett cited "evolving societal standards" which are, of course, a fixture of eighth amendment law. Many Americans wonder, though, why some judges have society evolving in ways that make it more and more difficult to punish criminals. As criminals themselves become younger and more vicious and more efficient in their lawlessness, the law seems to evolve into confusion and powerlessness. What kind of evolution is this, Mr. President? 808

Don Nickles

Slightly Positive
I cannot support Justice Barkett's nomination and will vote against her. I encourage our colleagues to do likewise. 809

Ted Kennedy

Very Positive
Mr. President, I commend President Clinton for nominating Justice Rosemary Barkett to the U.S. Court of Appeals. 811

Ted Kennedy

Very Positive
Justice Barkett's career is a powerful symbol of the American dream and the achievement that is possible through hard work and commitment to the Nation's ideals. One of 16 children born to an immigrant family living in Mexico, she came to America at the age of 5. She knew only a few words of English. She became a Roman Catholic nun and taught school for several years before attending the University of Florida Law School, where she graduated near the top of her class. 812

Ted Kennedy

Very Positive
After 8 years in practice, she was appointed to the State trial court in 1979, then to the State appellate court, and finally to the Florida Supreme Court in 1985, the first woman to be accorded that high honor. For the past 2 years, she has served as chief justice of that distinguished court. She has been a leader in assuring that the courts are accessible to persons with disabilities, and she has been a strong advocate of pro bono work by all members of the bar. 813

Ted Kennedy

Very Positive
Justice Barkett has been harshly attacked by a small group of critics who claim that she is soft on crime. Few people are in a better position to understand and appreciate the falsity of that charge than the people of Florida, who have overwhelmingly rejected such claims. On two occasions, the people of Florida have voted overwhelmingly to retain her on the State supreme court. She was endorsed in her most recent election by the Police Benevolent Association, the Fraternal Order of Police, and the Peace Officer's Association. 814

Ted Kennedy

Very Positive
The impressive bipartisan support she has received for this position is a tribute to her outstanding qualifications for this important court. Elected officials from Florida, including Senator Graham and Senator Mack, Gov. Lawton Chiles, and the attorney general and his Republican predecessor in the State all support Justice Barkett's nomination. None of them supports coddling criminals, and none of them would support Justice Barkett's nomination if they though she was soft on crime. 815

Ted Kennedy

Very Negative
Her critics have sought to characterize Justice Barkett as opposed to the death penalty, because she has voted in selected cases to set aside a death sentence. 816

Ted Kennedy

Very Positive
In our system of justice, if the death penalty is to be imposed, the courts must take care to ensure that it is not imposed on an innocent person. These life or death cases are among the most important responsibilities of the courts, and Justice Barkett clearly takes that responsibility seriously. 817

Ted Kennedy

Very Negative
In fact, Justice Barkett has voted to enforce the death penalty more than 100 times. It would be wrong to oppose an outstanding nominee with a distinguished record on the bench simply because she has voted to set aside the death penalty in a few cases. 818

Ted Kennedy

Very Positive
Justice Barkett is an outstanding jurist. She is well qualified to serve on the court of appeals, and I urge the Senate to reject the baseless charges against her, and confirm her nomination. 819

Conrad Burns

Unknown
Mr. President, President Clinton has exercised his constitutional power and nominated Judge Rosemary Barkett to the U.S. Court of Appeals for the Eleventh Circuit. While the President has the right to choose his political appointments, we as Members of the U.S. Senate have the responsibility to thoroughly review these nominations. 821

Conrad Burns

Very Negative
I believe the proper way to evaluate a judicial nominee is by examining her judicial philosophy as reflected in her substantive record. While there's no question that I have philosophical differences with Justice Barkett on some of her political viewpoints, my greatest concern is that she is too soft on crime. Her record has shown that she has gone out of her way to block attempts to enact criminal laws, to limit enforcement of criminal laws, and to prevent implementation of criminal laws. 822

Conrad Burns

Very Negative
The most salient of her efforts to soften criminal law are her efforts to block the implementation of the death penalty. Rosemary Barkett has tried to set a precedent for great empathy for convicted killers. While this position is borne out of the best intentions, her personal empathy has led her to blame even the most heinous crimes on everything from troubled racial relations to a failure of the social system and learning problems during a killer's youth. To this end, she has embraced a radical theory of statistical manipulation -- rejected by both the U.S. Supreme Court and the U.S. Senate, as well as State attorneys general across America -- that would effectively abolish the death penalty without regard to whether actual killers in actual cases deserved execution. 823

Conrad Burns

Very Negative
At a time when violent crime is one of the foremost concerns across the United States, and the Senate has focused an unprecedented amount of time and effort to produce legislation that will finally address the crime problem and alleviate the growing concerns of American citizens. I am frustrated that the President, with his tough-on-crime rhetoric, would counteract these efforts and nominate a judge whose record has made evident that she will not uphold tough criminal laws in our judicial system. 824

Conrad Burns

Very Positive
I urge my colleagues to review Justice Barkett's judicial opinions, as a member of Florida's supreme court, and cast their votes with Justice Barkett's views on crime in mind. We have made great strides in our unified support for the passage of the crime bill. But, placing more police officers on the street and building new regional prisons will do little good if judges will misconstrue our intentions and narrow the scope of the criminal laws. 825

Barbara A. Mikulski

Positive
Mr. President, I just want to take this opportunity to offer my support for the nomination of Rosemary Barkett, of Florida, to serve on the eleventh circuit court of appeals. 827

Barbara A. Mikulski

Very Positive
I have three criteria that I apply to all nominees for Federal judicial appointments: First, is the nominee competent? Second, does the nominee posses the highest personal and professional integrity? Third, will the nominee protect and preserve the core constitutional values and guarantees that are central to our system of Government? 828

Barbara A. Mikulski

Very Positive
First, Chief Justice Barkett's background is evidence of her competency and qualifications to serve on the circuit court. Not surprisingly, she graduated among the top of her class in law school In 1979, she was appointed to the trial court and became the first woman to serve as a chief judge of Florida circuit court and Florida supreme court. Justice Barkett is held in high regard by her colleagues, supported by both U.S. Senators representing Florida and Florida's Gov. Lawton Chiles, and endorsed by several organizations including the Fraternal Order of Police. 829

Barbara A. Mikulski

Very Positive
Second, prior to becoming a lawyer, Justice Barkett was a school teacher and was a Roman Catholic nun. She taught religious and public school children while at the convent and her life exemplifies the utmost in personal and professional integrity. 830

Barbara A. Mikulski

Very Positive
It may seem unusual to some for a former nun to serve on the court, but I will tell you what her nomination actually represents. This nomination is indicative of the progress we have made. It shows that we are able to judge individuals on their qualifications and merit. Judge Barkett through her efforts and hard work is refuting old stereotypes -- religious and gender. 831

Barbara A. Mikulski

Very Positive
Finally, I believe that Chief Justice Barkett has shown that she will continue to be a great jurist. She will serve the court well to protect and preserve our core constitutional values. I commend the President for nominating her and demonstrating his support for diversity on the court. 832

John McCain

Very Negative
Mr. President, after reviewing Judge Barkett's judicial record and her testimony before the Judiciary Committee, I regret that I must oppose her confirmation to be a judge of the U.S. court of appeals for the eleventh circuit. I believe that Justice Barkett is a fine person, but I am greatly concerned by many of her judicial opinions which have led me to believe the judge might misconstrue the written law in order to support her own personal views and that she will take a weak stance on criminal law enforcement. 834

John McCain

Very Negative
One of the most important issues in which she has ruled and would rule on the eleventh circuit is the death penalty. According to a January poll by the Prodigy Service, 71 percent of the American people favor the death penalty and would like to see it applied to more violent crimes. The people are correct on this issue. However, if Justice Barkett's opinions were to be followed, application of the death penalty would be rendered much less likely an option. 835

John McCain

Very Negative
For example, Judge Barkett has advocated that a seemingly limitless and legally tortuous defense against the death penalty be applied to the Florida State Constitution in response to U.S. Supreme Court ruling against the use of "disparate impact" statistical evidence under the Federal Equal Protection Clause in McCleskey v. Kemp, 461 U.S. 279 (1987). Judge Barkett then responded to the ruling by stating that McCleskey failed to address the problems concerning "unconscious discrimination," and that statistical evidence should include not only the disposition of first degree murder cases, but also "other information that could suggest discrimination" including "the general conduct of a state attorney's office, including hiring practices. * * *" The defendant can then use this "statistical" evidence to prove that discrimination influenced the decision by the State attorney's office to seek the death penalty, which the State is then forced to disprove. 836

John McCain

Very Negative
This opinion would allow any death penalty defendants to investigate the offices of the State attorneys to find latent discrimination resulting in discriminatory death penalty prosecution. Under Judge Barkett's skewed standard, there could be cases where defendants can claim discrimination based upon race, religion, or sex. Judge Barkett's opinion, if applied, could drive the legal system to a halt, clogging the courts with cases where death penalty defendants appeal their sentences not on their innocence or guilt but on the basis of the atmosphere in the State attorney's office. 837

John McCain

Very Negative
Justice Barkett's supporters will argue that this is merely one case, and that she has, on occasion, voted in favor of the death penalty. However, I want to point out that well over 100 times she dissented from the majority of the Florida Supreme Court, and voted against the death pe