Bench Memos

Putting Judicial Nominees in Perspective

Time for a bit of perspective. As Senate Democrats attack and distort the records of President Bush’s judicial nominees, it is instructive to examine the record of judicial nominees that Senate Democrats regarded as stellar. Let’s begin with Rosemary Barkett, who was nominated by President Clinton to the Eleventh Circuit Court of Appeals in 1993 and was confirmed in 1994.

Senator Hatch’s statement on the floor of the Senate summarized the overwhelming case against the Barkett nomination. Simply put, Barkett’s record was demonstrably awful across the board. Yet this is the nominee whom Sen. Kennedy described as an “outstanding jurist” and whom all the Senate Democrats, except for Sen. Byrd, voted to confirm.

Here are some highlights from Sen. Hatch’s statement. (For ease of reading, I’ve made minor edits in brackets and have added the headings and bullet marks below.) If you read nothing else, read about the Dougan case under the Death Penalty heading.

Equal Protection and Substantive Due Process

· [I]n her dissent in University of Miami versus Echarte, Chief Justice Barkett voted to strike down statutory caps on noneconomic damages in medical malpractice cases. In addition to a variety of State law grounds, her dissent also relied upon the Federal equal protection clause. Without citing any Federal precedent, she asserted: “I fail to see how singling out the most seriously injured medical malpractice victims for less than full recovery bears any rational relationship to the Legislature’s stated goal of alleviating the financial crisis in the medical liability insurance industry.”

In fact, the rational relationship between the means and the goal is self-evident and was clearly spelled out by the legislature. One might well disagree with caps on noneconomic damages as a policy matter. But, Chief Justice Barkett’s purported application of rational-basis review is a stark overreach and a flagrant misuse of the Federal equal protection clause. At her hearing, she acknowledged that she should not have relied on that clause.

· In another case, Shriner’s Hospital versus Zrillic, the nominee again relied on the rational basis standard under the Federal equal protection clause–as well as on a variety of State law grounds–in striking down a statute. In her opinion, she took the remarkable position that `underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test.’ This distortion of rational basis review into something akin to strict scrutiny clearly flies in the face of equal protection principles set forth in nearly 50 years of U.S. Supreme Court precedent.

· Justice Barkett’s misreliance on the Federal equal protection clause in these two cases is all the more striking to me in light of her partial dissent in Foster versus State. There, in seeking to rely on a theory of statistical racial discrimination in a challenge to the death penalty, she expressly acknowledged that the Federal equal protection clause was unavailable to her in light of a Supreme Court decision, McCleskey versus Kemp, squarely rejecting her view under the U.S. Constitution. Accordingly, in her Foster opinion she only relied on the Florida equal protection clause. Yet, she did not recognize the error of relying on the Federal Constitution when she wrote her opinions in Echarte and Zrillic. Her failure to appreciate in these two opinions that Supreme Court precedent foreclosed her reliance on the U.S. Constitution deeply troubles me.

· I also find Chief Justice Barkett’s reliance on Federal substantive due process very troubling. In State versus Saiez, she wrote an opinion holding that a State law criminalizing the possession of embossing machines capable of counterfeiting credit cards `violated substantive due process under the Fourteenth Amendment to the United States Constitution.’ Briefly, let me just say here, this expansive, substantive use of the due process clause is insupportable under Supreme Court precedent. The nominee testified that she was really relying on State due process grounds and her inclusion of the Federal due process clause was `careless’.


· [I]n Stall versus State, Chief Justice Barkett joined a dissent striking down a State obscenity statute on State law grounds. She also wrote separately in an opinion that, again, is sweeping and overbroad. There are several problems with this dissent.

First, her statement that, `A basic legal problem with the criminalization of obscenity is that it cannot be defined’ is flatly contradicted by the U.S. Supreme Court’s landmark opinion in Miller versus California (413 U.S. 15 (1973)), which Chief Justice Barkett does not even acknowledge, much less discuss.

Second, she sweepingly claims that an obscenity law such as the one in Florida violates `every principle of notice and due process in our society’–not, I might add, a statement limited to state law principles, and, again, contradicted by the Miller decision.

Third, Chief Justice Barkett’s opinion mischaracterizes the Florida law in the case: That law does not turn on the `subjective’ view of a handful of law enforcement people and jurors or judges, as she incorrectly suggests. The Florida law incorporates the standard set forth by the U.S. Supreme Court in Miller. The law bans materials that, judged by contemporary community standards, appeal to the prurient interest, that depict or describe, in a patently offensive way, specifically defined sexual conduct, and that lack serious literary, artistic, political, or scientific value. Thus, the role of jurors or judges under this law would not be to make their own `subjective definition’ of what is obscene, but rather to discern and apply existing community standards.

Criminal Law

· With respect to criminal law issues aside from the death penalty, I believe that the nominee has too often erroneously come down on the side of lawbreakers and against police officers and law enforcement. She has exhibited an unduly restrictive view of the Fourth Amendment that would hamstring the police, especially with regard to controlling drugs.

For example, in Bostick [v. State], a case involving cocaine trafficking, Justice Barkett adopted an across-the-board, per se ban on passenger searches on intercity buses even though Supreme Court precedent clearly called for an analysis of a search’s legality based on all of the particular circumstances of the search. The U.S. Supreme Court reversed her.

The U.S. Supreme Court also reversed her in the Riley case, where her misapplication of precedent would have led to dismissal of charges against criminals growing marijuana. In yet another drug case, the Court criticized her overbroad reading of precedent.

In her dissent in a case called Cross, Justice Barkett refused to credit the testimony of police officers that they had seen cocaine packaged in the same peculiar way on hundreds of occasions in their combined 20 years of law enforcement. In so doing, she ignored Florida precedent cited by the majority that provided that the observation of an experienced policeman of circumstances associated with drugs could provide probable cause for an arrest.

In another dissent, she ignored settled principles enunciated in U.S. Supreme Court precedent in finding that someone who was growing marijuana in his backyard had his fourth amendment rights violated when police, acting on a tip, looked over a 6-foot fence, spotted the marijuana plants and then obtained a search warrant. Rather than inquiring whether the defendant had an expectation of privacy that was objectively reasonable, Chief Justice Barkett simply displayed her personal opposition toward what she regarded as overly intrusive law enforcement.

· Justice Barkett has also written opinions striking down narrowly drawn laws that ban loitering for the purpose of prostitution and drug dealing. These opinions are badly flawed and misapply precedent. Moreover, they seriously disable communities from preventing harmful crime.

Death Penalty

· If a nominee exhibits a clear tendency to strain for unconvincing escapes from the imposition of the death penalty in cases where that penalty is appropriate, then that raises concerns in my mind about the nominee’s fidelity to the law, no matter how many times the nominee may have upheld the death penalty in other cases. From my review of her record, I have concluded that Justice Barkett clearly exhibits such a tendency. [O]ne of Justice Barkett’s dissenting opinions [(in Foster v. State)] would render the death penalty virtually unenforceable, unless imposed on the basis of racial quotas. Overall, I believe that Justice Barkett, in reviewing death sentences, views aggravating circumstances too narrowly; construes mitigating circumstances too broadly; creates unjustified categorical exclusions from death penalty eligibility; subjects the death penalty to racial statistical analysis that would paralyze its implementation, as I have just discussed; and creates procedural anomalies.

· Dougan versus State is a 1992 Florida Supreme Court case. 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. Subsequent to 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 upheld the death penalty for Dougan. Justice Barkett and another Justice joined a remarkable and very disturbing dissent by Justice McDonald in which she voted to reduce the death penalty to life imprisonment, with eligibility for parole in 25 years[:] “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 emotion 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 infect 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.”

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