Discover more from Ed Whelan’s Confirmation Tales
Bill Clinton Pressures Own Judicial Appointee To Reverse ‘Stupid’ Ruling For Drug Dealer
Re-election campaign has Clinton running scared on his judicial nominations
Let’s explore an extraordinary episode in which Bill Clinton pressured one of his own judicial appointees to reverse his ruling for a criminal defendant in a pending prosecution by the United States government that Clinton headed.
Having lost both houses of Congress in the 1994 elections, Bill Clinton certainly wasn’t going to be complacent about his re-election bid in 1996. He knew that his Republican challenger, Senate majority leader Bob Dole, would hammer him for appointing judges who were soft on crime, just as Republican Senate candidates had criticized his judicial nominations in 1994.
After a defeat early in his political career, Clinton determined not to let himself get badly outflanked on crime. So in January 1992, when the eruption of the Gennifer Flowers scandal put his candidacy for the Democratic nomination in severe jeopardy, Clinton resisted pleas from Jesse Jackson and others to spare the life of Rickey Ray Rector, a convicted murderer who, his proponents argued, suffered from severe mental disabilities. Clinton instead conspicuously left the campaign trail to return to Arkansas to display his commitment to have Rector’s execution go forward.
Harold Baer Jr. had very little in common with Rickey Ray Rector. Son of a longtime New York judge, Baer graduated from Yale law school and had a long career in and out of government that culminated in Clinton’s appointment of him as a federal district judge in the Southern District of New York in 1994. But when one of Baer’s rulings threatened to hurt Clinton politically, Baer suddenly shared with Rector—to a much milder degree, to be sure—the experience of being on the receiving end of Clinton’s cutthroat tactics.
* * *
“The great enemy of truth is very often not the lie — deliberate, contrived, and dishonest — but the myth — persistent, pervasive and realistic.”
That’s the pretentious epigraph that Judge Baer inserted in his opinion in January 1996 in a case called United States v. Bayless. It’s not often that a judicial opinion includes an epigraph. Baer, midway through his second year as a federal district judge in the Southern District of New York, was evidently eager to make a splash. He succeeded beyond what he could have imagined, but not in the way he hoped.
The criminal defendant in the case, Carol Bayless, was charged with conspiracy to distribute heroin and cocaine. She was arrested while driving a car that had in its trunk two large duffel bags containing 34 kilograms of cocaine and two kilograms of heroin.
The legal question before Baer was whether the New York City police officers who arrested Bayless had made a lawful “limited investigative stop” of her car. As Baer explained, the standard for a limited investigative stop is less demanding than “probable cause.” It required only that the police “point to specific and articulable facts which, along with rational inferences drawn from those facts, reasonably suggests [sic] that criminal activity has occurred or will occur imminently.”
Police officer Richard Carroll testified that he observed a car with a Michigan license plate moving slowly in the pre-dawn hours in a neighborhood known for drug trafficking, saw the car double-park, observed four men cross the street in single file and, without speaking with the driver, deposit duffel bags in the trunk of the car, and saw the men scatter when they noticed that the officers were observing them.
Baer somehow found that “even collectively, these facts fail to meet the requisite standard of reasonable, articulable suspicion that any criminal activity was afoot.” A sample of his reasoning:
[E]ven assuming that one or more of the males ran from the corner once they were aware of the officers' presence, it is hard to characterize this as evasive conduct. Police officers, even those travelling in unmarked vehicles, are easily recognized, particularly, in this area of Manhattan. In fact, the same United States Attorney's Office which brought this prosecution enjoyed more success in their prosecution of a corrupt police officer of an anti-crime unit operating in this very neighborhood. Even before this prosecution and the public hearing and final report of the Mollen Commission, residents in this neighborhood tended to regard police officers as corrupt, abusive and violent. After the attendant publicity surrounding the above events, had the men not run when the cops began to stare at them, it would have been unusual.
Baer therefore granted Bayless’s motion to suppress evidence of the drugs found in the car she was driving.
* * *
Baer’s ruling immediately elicited strong criticism. New York City mayor Rudy Giuliani called it “mind-boggling,” and police commissioner William J. Bratton said that Baer was “living in a fantasyland.” The Wall Street Journal editorial page condemned Baer’s ruling for depriving the “law-abiding residents of Washington Heights” of the “same level of protection as the mostly white residents 100 blocks south … in the heart of New York’s Yuppiedom.”
The Wall Street Journal also tied Baer’s ruling to “the politics of judicial appointments” and to what a second Clinton term would mean for the federal judiciary:
Mr. Clinton no doubt would separate himself from decisions like Judge Baer’s, but one then has to somehow believe that he would actually separate himself from the constituencies insisting that he pick from the same candidate pool that produces such judges.
Even the New York Times editorial board blasted Baer’s “sloppy reasoning” and “judicial malpractice,” as it complained that his ruling would “undermine respect for the legal system, encourage citizens to flee the police and deter honest cops in drug-infested neighborhoods from doing their job.”
In early March, House speaker Newt Gingrich called on Clinton to ask Baer to resign. On March 20, a letter to Clinton from more than 200 Republican members of the House did the same.
In the meantime, Baer had granted the government’s motion for reconsideration and on March 15 received additional testimony.
On March 19, in a speech celebrating primary victories that guaranteed him the Republican presidential nomination, Senate majority leader Bob Dole highlighted that the November election would be a choice “between a candidate who will appoint conservative judges to the court and a candidate who appoints liberal judges who bend the laws to let drug dealers free.”
On March 21, the White House sprang into response. White House press secretary Mike McCurry of course did not defend Baer’s ruling. But he also did not say that this was a pending criminal matter in which a rehearing was under way and on which it would not be proper for the president to weigh in. Instead, as the New York Times summarized it in an article headlined “Clinton Pressing Judge To Relent”:
The White House put a Federal judge on public notice today that if he did not reverse a widely criticized decision throwing out drug evidence, the President might ask for his resignation.
Labeling Baer’s ruling as “wrong-headed” and “stupid,” McCurry tried to deflect criticism of Clinton by asserting that “a lot of Reagan-appointed judges, Bush-appointed judges … have made wrong-headed, stupid decisions, too.”
On March 28, Second Circuit chief judge Jon O. Newman and three of his predecessors took the extraordinary—and ethically dubious—step of issuing a statement that condemned the White House’s “attack” on Baer:
Last Friday, the White House press secretary announced that the President would await the judge’s decision on a pending motion to reconsider a prior ruling before deciding whether to call for the judge’s resignation. The plain implication is that the judge should resign if his decision is contrary to the President’s preference. That attack is an extraordinary intimidation. [Emphasis added.]
Newman’s letter also chastised Senator Dole for saying that Baer should be impeached if he does not resign.
* * *
On April 1, Judge Baer vacated his January order and denied Bayless’s motion to suppress. Baer purported to rely on new testimony that he had received. But since his original ruling had rested expressly on his “assuming” that “Officer Carroll is to be believed,” it is difficult to see how new testimony that confirmed Carroll’s account would make any difference. Baer also apologized that “unfortunately the hyperbole (dicta) in my initial decision not only obscured the true focus of my analysis, but regretfully may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great City.”
As one law professor put it, Baer’s ruling was
a little like a baseball umpire who reverses his call when the crowd boos. You always fear it was the booing that influenced the umpire. Admitting error is admirable, but admitting error because of a lot of heat is very damaging to the system and to the Constitution's efforts to insulate judges from public pressure.
Ed Whelan’s Confirmation Tales is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.