That’s the title of my new Confirmation Tales post, in which I discuss the battle that my boss Senator Orrin Hatch led against Bill Clinton’s nomination of Rosemary Barkett to the Eleventh Circuit. We assumed all along that Barkett would be confirmed (as she of course was), but I think that Republican senators learned from the battle—including from former Senate Democratic leader Robert Byrd’s surprising vote against Barkett—that it was worth fighting nominees on the ground of judicial philosophy. It helped to have a nominee whose record was so flagrant.

An excerpt:

It would be impossible to give a succinct and thorough account of the defects in Barkett’s record, but I will offer some examples….
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.”

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