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Senate Republicans Oppose Clinton's Terrible Eleventh Circuit Pick
Nomination of Rosemary Barkett contradicts Clinton's tough-on-crime rhetoric
One of the sixteen federal appellate vacancies that President Bill Clinton inherited from George H.W. Bush was an Eleventh Circuit seat in Florida. The former occupant of the seat, Judge Paul H. Roney, had taken senior status way back in 1989, the first year of Bush’s presidency. Bush nominated federal district judge Kenneth Ryskamp to the seat in April 1990. But Senate Democrats, citing Ryskamp’s membership in a private country club that was said to be discriminatory, defeated his nomination in committee a year later.
Bush next nominated federal district judge Federico Moreno to the seat. But he didn’t make the nomination until March of 1992, and Senate Democrats, eager to deny Bush the distinction of appointing the first Hispanic judge to the Eleventh Circuit, killed Moreno’s nomination through inaction.
In September 1993, Clinton nominated Florida chief justice Rosemary Barkett to fill the seat. Barkett had worked her way up through Florida’s judicial system since 1979. She became Florida’s first female supreme court justice in 1985, and in 1992 her colleagues selected her for a two-year term as chief justice. In her retention election in November 1992, Barkett survived a “grueling campaign” against her, as her critics, including half of Florida’s sheriffs, faulted her judicial record as soft on crime.
As I waded through Barkett’s hundreds of opinions, I quickly came to discover that Barkett’s judicial record was awful across the board. Sometimes it takes hard work to find the problematic aspects of a candidate’s record. But the challenge with Barkett was trying to keep track of all of her unsound positions. As my boss Senator Orrin Hatch put it in a Senate floor statement setting forth his opposition to Barkett’s nomination, “there are just too many cases, across too wide a range of subjects, where I believe this nominee stepped well past the line of responsible judging.”
Senator Hatch entered into the Congressional Record three long memos, covering dozens of cases and totaling around 20,000 words, that I wrote on Barkett’s judicial record—one memo on criminal law (S5826-S5829), one on her death-penalty cases (S5829-S5835), and one on her constitutional decisions (S5835-S5838). Hatch made those memos public a full three weeks in advance of the vote on Barkett’s nomination in order to challenge anyone to dispute them.
A week or two later, a lawyer for Judiciary Committee chairman Joe Biden came into my office shaking his head. I wondered what was bothering him. “We carefully checked all of your memos,” he graciously volunteered, “and we couldn’t find any errors.” That of course didn’t mean that he and his colleagues embraced the commentary in those memos, but it did mean that they agreed that the foundation on which the commentary rested—e.g., the description of Barkett’s rulings—was set forth accurately.
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It would be impossible to give a succinct and thorough account of the defects in Barkett’s record, but I will offer some examples. If you’re not keenly interested in legal rulings, you might skip to the next section, but please don’t do so before reading about this first case.
Because it’s so flagrant and displays her eagerness to blame society or racism or deprivation for horrific crimes, I’ll start with a dissent that Barkett didn’t write but somehow saw fit to join, in Dougan v. State (1992).
Dougan was the leader of a group that called itself the Black Liberation Army and that, according to the trial judge, had as its “apparent sole purpose … to indiscriminately kill white people and thus start a revolution and a race war.” One evening in 1974, he and four other members of his group, armed with a pistol and a knife, went in search of victims. They picked up a white hitchhiker, Steven Orlando, drove him to an isolated trash dump, stabbed him repeatedly, and threw him to the ground. As Orlando writhed in pain and begged for his life, Dougan put his foot on Orlando’s head and shot him twice—once in the chest and once in the ear—killing him instantly.
After the murder, Dougan made several tape recordings bragging about the murder, and mailed them to the victim’s mother as well as to the media. The following excerpt from one of the tapes aptly illustrates the content: “He was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”
The Florida supreme court voted to uphold the death penalty for Dougan. But Barkett and two other justices dissented, opining that the sentence should be reduced to life imprisonment with eligibility for parole in 25 years. Here are some amazing excerpts (italics added) from the dissent she joined:
“This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.
“To some extent, [Dougan’s] emotions were parallel to that of a spouse disenchanted with marriage, full of discord and disharmony which, because of frustration or rejection, culminate in homicide. We seldom uphold a death penalty involving husbands and wives or lovers, yet the emotions of that hate-love circumstance are somewhat akin to those which existed in this case.
“Such a sentence reduction should aid in an understanding and at least a partial reconciliation of the wounds arising from discordant racial relations that have permeated our society. To a large extent, it was this disease of racial bias and discrimination that infected an otherwise honorable person and contributed to the perpetration of the most horrible of crimes. An approval of the death penalty would exacerbate rather than heal those wounds still affecting a large segment of our society.”
Barkett’s fuller record in death-penalty cases showed that she interpreted aggravating factors exceedingly narrowly and mitigating factors very broadly, that she invented categories of criminals who would be ineligible for the death penalty and then construed those categories expansively, and that she would paralyze implementation of the death penalty by racial statistical analyses.
Barkett had a clear record of freewheeling constitutional decisionmaking. In one dissent, for example, she voted to strike down statutory caps on noneconomic damages in medical-malpractice cases under supposedly deferential rational-basis review under the federal Equal Protection Clause (as well as on a variety of state-law grounds). While this case was pending, she allowed a trial lawyers’ group that had submitted an amicus brief in the case (arguing that the caps were unconstitutional) to name an annual award after her, and she showed up at its annual convention to present the award.
In another case, Barkett wrote that a state law that criminalized the possession of embossing machines capable of counterfeiting credit cards violated substantive due process under both the federal Constitution and the Florida constitution. She ruled that an ordinance that prohibited loitering for the purpose of prostitution was facially unconstitutional, as was an ordinance that prohibited loitering for the purpose of engaging in drug-related activity. She took the position in dissent that all criminal obscenity laws violate due process. And she had a pattern of unduly restrictive search-and-seizure decisions that would hamstring the police in their battle against illegal drugs.
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An important potential ally in the fight against Barkett’s nomination was Florida’s Republican senator Connie Mack. Mack, whose full legal name is Cornelius Alexander McGillicuddy III, was grandson and namesake of the Hall of Fame owner and manager of the Philadelphia Athletics. An affable conservative, Mack found himself in a tough spot on Barkett’s nomination.
As the retention-election campaign against Barkett in 1992 illustrated, Barkett was unpopular with conservatives in Florida. But Mack was a first-term senator, and he had won election in 1988 by a very narrow margin—with only 50.42% of the votes—even as George H.W. Bush crushed Michael Dukakis by more than 22 points in the presidential race. He faced his first re-election campaign in November 1994, and he was understandably nervous about his prospects.
For the same reasons that Republican senators found appealing the model of deference to a Democratic president on Supreme Court picks, Mack evidently calculated that he could appease his conservative base and win credit from voters in the middle by supporting Barkett’s nomination. Indeed, many conservatives in Florida might even be happy to have her no longer on the state’s highest court. And so it was that in the quiet days before Christmas of 1993, Mack publicly declared that he had limited his inquiry to “whether the nominee is capable, a person of integrity and falls within reasonable philosophical bounds” and that he had concluded that Barkett passed that deferential test.
Mack ended up facing a very weak Democratic opponent, Hugh Rodham—yes, Hillary’s brother—in November 1994 and trounced him by a 42-point margin, 71% to 29%.
Notwithstanding Senator Mack’s support for her, Rosemary Barkett’s terrible record had a force of its own, especially given how starkly it belied Bill Clinton’s centrist posturing. A month after Barkett’s nomination, the Wall Street Journal’s Paul Gigot, with some assistance from yours truly, put the Barkett nomination on the national political radar. (The media environment was very different back then.) In his widely read weekly column, Gigot documented how Barkett’s opinions offered “root causes, ‘unconscious discrimination,’ fear of police and other liberal explanations for crime,” and he posed the “mystery why a president who wants to seem tough on crime would nominate Ms. Barkett.”
In mid-April 1994, the Senate confirmed Barkett’s nomination by a vote of 61 to 37. The Senate at the time had 56 Democrats and 44 Republicans, and the deviations from party line are noteworthy.
I was very surprised and pleased to learn that Robert Byrd, the Senate Democratic leader during the Reagan and Bush 41 presidencies, voted against the Barkett nomination. But he was the only Democrat to do so.
Eight Republicans voted for Barkett’s nomination. In addition to Mack, the seven others were Lincoln Chafee, William Cohen, John Danforth, Dave Durenberger, Mark Hatfield, Jim Jeffords, and Bob Packwood—all members of a liberal-to-moderately-liberal wing of the party that is much less numerous today.
As it happens, the two senators who did not vote, Richard Shelby and Ben Nighthorse Campbell, were both Democrats who would soon become Republicans—Shelby right after the Republicans won control of the Senate in the November 1994 elections, and Campbell a few months later.
Eight days before the Senate confirmed Barkett’s nomination, Supreme Court justice Harry Blackmun announced that he would be retiring, so Clinton had a second Supreme Court vacancy to fill.
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