The ACTING PRESIDENT pro tempore. Time for this nomination is limited to 6 hours, to be equally divided between the chairman and ranking member of the Judiciary Committee or their designees. The Chair recognizes Senator Biden. Mr. President, speaking of never complain and never explain, I think we should move to the nomination of Rosemary Barkett and confirm her. I think there is really no need for lengthy explanation as to the qualifications of this woman to be on the court. Mr. President, I rise in support of the nomination of Rosemary Barkett, chief justice of the Florida Supreme Court, to become a judge in the U.S. court of appeals for the eleventh circuit. I see my distinguished colleague from Florida, the main sponsor and supporter and friend of Rosemary Barkett, is here, Senator Graham, and my colleague, the ranking Republican on the Judiciary Committee, Senator Hatch. For purposes of allowing people to plan at least the initial scheduling, I intend on speaking at the outset here for about 20, 25 minutes and then I will yield the floor. But I think it is important for me to lay out why I feel so strongly that Rosemary Barkett is supremely qualified to be on the U.S. court of appeals for the eleventh circuit. It seems to me there can be no doubt that she is qualified for the position for which she has been nominated. Her educational background and her career as a lawyer and a judge demonstrate a commitment to service, a depth of experience, and a strength and character that makes her an excellent choice for the Federal bench. Justice Barkett, as a young woman, joined the order of the Sisters of St. Joseph. I know something about the Sisters of St. Joseph as well since for 8 years they were my primary teachers, and I probably learned more from them than any other group of people with whom I have been associated my entire life. As a sister she maintained her vocation from 1956 until 1967. During this time, while she taught in the elementary and secondary schools, she earned her BS degree summa cum laude from Spring Hill College. The nominee then entered the law school at the University of Florida. She finished at the top of her law school class in 1970, earning the award for the outstanding graduate. After Justice Barkett had worked for 9 years as a lawyer in private practice, then Governor Bob Graham, now U.S. Senator Bob Graham, appointed her to fill an unexpired term as a trial judge in 1979, and in 1984 elevated her to the State court of appeals. One year later, Governor Graham appointed Rosemary Barkett to the Florida Supreme Court, making her the first woman to sit on that court. Facing an election to retain her seat -- and that is how they do it in Florida. You get appointed, as I understand it, but then after a set amount of time you stand before the people of Florida and say what do you think of the job I did and are you going to retain me or do you want me to move on. And facing her election to retain her seat on the supreme court in 1992, Justice Barkett garnered an impressive 61 percent of the vote cast, I expect a percentage that any Member of this body would be overwhelmingly pleased with being able to generate in their home States, although I do know some of my colleagues do better than that on occasion and we all envy that ability. Following that election, her colleagues on the court named her chief justice. Justice Barkett has observed the practice of law from the perspective of a litigator and as a trial judge, ultimately undertaking the task of appellate review. Her more than 20 years in the legal profession, her thousands of cases on the courts, the supreme court, the court of appeals, the trial court, and in private practice, provide her with a wealth and breadth of experience that make her an excellent choice in my view for the eleventh circuit. This history must be considered. The laudatory comments of her peers in her profession, both practicing lawyers and her colleagues on the bench, as well as the overwhelming confidence placed in her by the people in Florida, I think should be taken into account by our colleagues as they vote today. The American Bar Association gave her its highest rating of well qualified by a unanimous vote. All these factors indicate that Rosemary Barkett is a woman possessing the outstanding character necessary for service as a Federal judge. I might add that State court judges in my State, a majority of whom are Republican because our judges are appointed; they do not stand for election, I have had a handful of them come up to me and ask me about Rosemary Barkett. And we are very proud, by the way, as all States are, we are very proud of the quality of our bench in the State of Delaware. It has been for 150 years viewed as one of the outstanding benches of all the State courts, and these are very, very solid Republicans who have come up to me who, in fact, are suggesting to me strongly, I hope there is no problem with Rosemary Barkett; she is such a fine judge. They have worked with her. They know her and they support her. Given her outstanding qualifications and commitment to service, some of my colleagues wonder why this nomination is commanding so much of the Senate's attention. The fact is that Justice Barkett's critics object to some of her decisions and therefore her confirmation on ideological grounds. Far be it for me to suggest that ideological grounds in certain circumstances are not appropriate things for Senators to consider. This ideological attack on the nominee for the court of appeals, though, in my view, is inappropriate for reasons I will explain in a moment. I am not suggesting it is malevolent. I am just suggesting it is inappropriate. It is not at all inappropriate, when the President of the United States nominates a Justice for the Supreme Court, which he will be doing in the coming months, for my Republican or Democratic colleagues to take issue with the ideology of whomever the President appoints because a Supreme Court Justice can, in fact, change the law. An appellate court judge and a trial court judge, though, are bound by Supreme Court precedent. I have long maintained that a nominee's judicial philosophy is an appropriate consideration for a person seeking a seat on the Supreme Court. The reason for this view is really quite simple. Supreme Court Justices cannot be reversed. Supreme Court Justices, other than by constitutional amendment, are the final arbiters of the law and the meaning of the Constitution. For this reason, their judicial philosophies are a proper focus for the Senate, I think a necessary focus for the Senate. (Mrs. FEINSTEIN assumed the chair.) By contrast, judges in the lower Federal courts are bound by precedents of the Supreme Court. Notwithstanding their personal views, their obligation is to follow and interpret the law in a manner consistent with the Supreme Court's precedents. Moreover, lower court justices can be reversed when they err. As a member, and for the last 7 years as chairman, of the Judiciary Committee, I have relied on a three-pronged standard that has traditionally guided the Senate in evaluating lower court nominees. Again, I do not presume that because this is my standard there is nothing in the Constitution that says that under the advise-and-consent clause any Senator has to adopt a particular standard. I want to make that very clear. But what I also want to make clear is that is a standard which I have adopted, which has been a standard which I believe and understand the vast majority of the Members of the Senate in the 22 years I have been here have adopted as well. It is a three- pronged standard: First, that the nominee has the capacity, competence, and temperament to be on the court of appeals or a trial court. Second, is the nominee of good character and free of conflict of interest? Third, would the nominee faithfully apply the Constitution and the precedents of the Supreme Court? If they meet those three tests, assuming they are not on the ideological fringe and they are not someone who is so out of the mainstream that you either question their competence, you question their character, you question their temperament as a consequence of where they sit, then it seems to me they should be given the opportunity to fulfill the seat for which they have been named. Using this test through 12 years of Republican nominees, I voted to confirm numerous lower court judges who were far more conservative than I am. Because I view the Supreme Court and the lower courts differently, I supported the nominations of Robert Bork and Clarence Thomas for the court of appeals, while I opposed their nominations for the Supreme Court for the very reasons which I have stated. They swore that they would uphold the Constitution as interpreted by the Supreme Court. I took them at their word. They honored their word. So on the court of appeals, it did not matter to me that they had such divergent views on how to interpret the Constitution from what I thought was an appropriate way. But once they are going to be moved to the Supreme Court where they are no longer bound by stare decisis, where they are no longer bound by prior Supreme Court decisions, and the Constitution was in the eye of the beholder, the beholder being those two individuals in question, I disagreed with their philosophy. Therefore, I opposed them on that circumstance for the Supreme Court, but voted for them for the lower court. Justice Barkett's critics seem to apply to Justice Barkett a standard previously applied only to Supreme Court nominees. In my view, this effort is unwise, and I urge my colleagues to reject this ideological test for nominees for the lower court while again emphasizing that I do not criticize and I would suggest that it is appropriate and necessary for Senators to apply such an ideological test for the Supreme Court. I outlined, a moment ago, Justice Barkett's sterling personal history and professional background, including her reputation within the legal profession. Thus, it is clear that she satisfies the first two prongs of this inquiry. She unquestionably possesses the competence and character essential in a nominee for the court of appeals. Let me speak for a moment about the third prong, respect for precedent, or stated another way, respect for the role of a court of appeals judge and an understanding of what that role is. I am convinced that Justice Barkett understands the job for which she is nominated. At her hearing, I asked Justice Barkett about the differences between what she does now in the Florida Supreme Court and what she seeks to do; that is, sit on an intermediate Federal court of appeals. Justice Barkett currently sits on the court of last resort in the State of Florida. She and her colleagues are the final arbiters of questions arising under the Constitution and laws of the State of Florida. Because the Florida court is required to evaluate both State and Federal claims, some results that would not follow through if from Federal precedent are mandated by State law and the State constitution. In other words, as a State judge, Justice Barkett is bound to follow Federal precedent only to the extent that she is interpreting the Federal Constitution and Federal law. She is not required to adhere to the U.S. Supreme Court precedents when she interprets State law, in almost all instances. In fact, as a State court judge, she should not follow Federal precedent when the State constitution commands a result different from Federal law so long as the State result is not proscribed by Federal law. This principle flows from the fundamental notion of federalism based within our constitutional system. By contrast, a judge on the eleventh circuit is bound by Federal precedent. When interpreting questions arising under the Federal constitutional laws, the eleventh circuit judge must look for guidance to the decisional law of the U.S. Supreme Court. I am satisfied that Justice Barkett fully appreciates the distinction between the State supreme court and the Federal courts of appeal. She testified as follows and I quote: Thus, Justice Barkett, under oath, quite clearly stated that she, in fact, understands the distinction and, from my perspective, satisfies my three-pronged inquiry into a nominee's competence, character, and respect for precedent. For this reason, I support her nomination enthusiastically. Let me repeat. Were Justice Barkett before us here today as the President's nominee for the Supreme Court vacancy that has just been announced, I think I would still support her because philosophically I do not have a problem with her position as a supreme court justice in Florida. But, it would be totally appropriate for Members of this body to stand before the Presiding Officer this morning and say, "I oppose this nominee because of her ideology and her philosophy." It would be totally appropriate. It might be misguided. It may be in disagreement with me. But it would be constitutionally, I think, dictated if they had a different philosophy and a different point of view than Justice Barkett. But she is not here for the Supreme Court of the United States of America, although someday, who knows, maybe she would be. But she is here today for the eleventh circuit court of appeals. So let me repeat again: Justice Barkett enjoys the competence, character, and respect for precedent essential in any nominee for a Federal court of appeals. Justice Barkett has written some 3,000 opinions and participated in more than 12,000 cases since her appointment to the Florida court. I am aware the critics have raised some questions about some of those opinions, and I wish to address just a few of those at the outset because I am sure my distinguished and learned colleague -- and he is learned in the law -- Senator Orrin Hatch will raise a number of cases with which he has disagreement as do others on the Republican side of the aisle. First, there is a suggestion that Justice Barkett is unwilling to uphold the death penalty. We do not know what Justice Barkett thinks about the death penalty as a personal, moral matter. In fact, her personal views at this point, for the job she is seeking, are irrelevant. Justice Barkett's record belies any notion that she is unwilling to uphold the State's ultimate punishment. Justice Barkett has voted to affirm the death sentence of well over 100 separate defendants during her tenure on the Florida Supreme Court. I will say that again. You will hear about how she is not willing to uphold the death penalty, because they say she opposes it. We do not have it anywhere in the record where she has said that. But we do have a record, notwithstanding some individual cases -- and the Presiding Officer, as a member of the Judiciary Committee has already heard what was presented by her. The Senate and the Presiding Officer will hear today, from our colleagues, individual cases where Justice Barkett did not uphold the death penalty. That will be read to the Senate as an unwillingness to uphold the death penalty. But there are 100 times, or more, that she has sat as a judge in the Florida Supreme Court and affirmed -- affirmed -- the death penalty of the lower court. She said: Yes, if that is the will and the decision of the jury in the lower court, based on Florida law, it is appropriate. In the vast majority of cases in which she has voted to reverse a sentence of death, she has not, as some critics have suggested, voted to "spare the killer." Instead, she has voted to lock up the killer for life. Of relevance here is the fact that Justice Barkett has demonstrated a willingness to apply the law. If the question is whether Justice Barkett has voted to affirm the death penalty in every case to come before her, the answer is clearly: No, she has not. I think this is fortunate, quite frankly. I am a supporter, as the Presiding Officer is -- we both sit on the Judiciary Committee. I have, for 22 years, been involved in criminal justice matters. I am the primary author of the bill being considered in the U.S. Congress today called the crime bill. I am the original author of that bill; I sat down and wrote it. There are over 50 different death penalties in it. I am a supporter of the death penalty. I also think that when you apply the death penalty, you better darn certain be right, and all the procedures and safeguards that are reasonably necessary under our Constitution should be built in before you reach that decision. Well, I looked at Justice Barkett's record, and although I may have disagreed with her on some of her votes, the fact is that she, in some cases, has reversed the sentence of death and made it life in prison. I do not think it is an unhealthy thing to have a judge who discriminates between the imposition of the death penalty and the imposition of life in certain circumstances where it may be warranted. Again, I emphasize that what is relevant here is the fact that Justice Barkett demonstrated the willingness to apply the law. If the question is whether she voted to affirm the death penalty in every case before her, the answer is no. Again, I say that I think that is fortunate, for if she had, I would have serious questions about her capacity for judging, because I find it difficult to think that every single solitary death case that came before a justice in the entirety of his or her career with hundreds of them, there is not a single one where there was reversible error. That would make me worry a little bit. If the question is whether Justice Barkett applies the laws to the facts and circumstances of a particular case, giving due consideration to the fundamental fairness of the proceedings and weighing carefully those factors in aggravation and mitigation of the death sentence, the answer is clearly that she does. It is this exercise, carefully applied to the law of Florida, that allows the State of Florida to carry out its death penalty in accordance with the U.S. Constitution and the rulings of the U.S. Supreme Court. Keep in mind, as my learned colleague in the chair knows, the reason why the death penalty was, for a fair amount of time in our recent history, viewed by the Supreme Court as not reasonably able to be applied, was because States were not applying it fairly. The courts -- without going into them -- in some famous landmark cases in the last 15 years, have sent out guidelines for States and said: Look, it is OK to have the death penalty. It is constitutional to have the death penalty. But you have to go by certain rules, certain procedures, and there are certain ways to apply it. So quite frankly, the reason why Florida has been able to apply the death penalty as often as it has, in my view, is because of the discriminating judgment as applied by their supreme court, including Justice Barkett. It is this existence of carefully applying the law that allows the State of Florida to carry out its death penalty. In every murder case, the law requires consideration of the mitigating circumstances. Thus, even where heinous facts exist, mitigating evidence must be considered under the Florida law and, in some cases, may still outweigh the factors supporting the death penalty. Granted, this is a judgment call; but it is one that a judge is required to enter into. A judge cannot merely say: Under Florida law, by the way, this is a heinous crime. It is such a heinous crime that I am not considering what the law says I must consider, which are any mitigating factors. I am just not going to do that. It is just so bad -- death. If they did that, in all probability, the Supreme Court of the United States would say: Wrong, you cannot apply that death penalty. You have to show us you are applying the law. So, granted, it comes down to literally what judging is about; applying judgment. My friend from Utah and I may disagree with Judge Barkett in a handful of cases where we say our judgment would have concluded that the mitigating factors did not outweigh the nature and the heinous nature of the crime and, therefore, the death penalty should be applied. But to suggest that because Judge Barkett may have reached the conclusion that what she was required to consider, added up to a sufficient grounds to say, no, life in prison as opposed to death, does not go to whether or not she is willing to apply the death penalty. It is in those handful of cases where her judgment may be different from the judgment of Members of this body as to what constitutes sufficient mitigating evidence to, in effect, be required to withhold the death penalty and put the person in jail for life. Reasonable judges may, and do, differ about what is appropriate in particular cases. Thus, when a judge has heard literally hundreds of death penalty appeals, as Justice Barkett has, there is little value in looking at cases out of their context within her entire record. In all these cases, Justice Barkett has demonstrated the willingness to apply the law meticulously. Such rigorous adherence to the law is, in my view, a qualification, not a disqualification, for service on the Federal Court of Appeals for the Eleventh Circuit. As a matter of fact, Madam President, it makes me realize that she is going to apply the precedents of the Supreme Court of the United States. She understands fully the requirements of a lower court judge, that they cannot wander the landscape even when philosophically they do not like a Supreme Court ruling. This should give my friends who worry she is going to go off on a toot of her own, they should be reading the opposite way. They should say: Here is a woman, here is a person, here is a judge who meticulously applies the law, as opposed to disregarding the law, because the murder was so heinous that every instinct in you says, death notwithstanding, the law says you must consider these other questions. Similar objections were raised in an effort to defeat Justice Barkett in a retention election for the Supreme Court of Florida. I am not expert on that election, but a man who is expert on that election, as expert as anyone, is sitting here. I suspect before the day is over our distinguished colleague, Senator Graham of Florida, will speak to this issue. My understanding is that those opponents of the retention of Justice Barkett in Florida raised all of the issues for all the people of Florida, and 61 percent of them said: Not only do we think that she applied the law, at least in a figurative sense, but we think her judgment was good. Who are we up here in the U.S. Senate, assuming we agree, as I think is inescapable -- we must agree -- with the fact that she applied the law, but maybe we disagree with her judgment, who are we to say that 61 percent of the people of Florida are wrong about her judgment? They debated it. They campaigned on it. They discussed it. It was written about. And it was finally voted on. And 61 percent of the people of Florida said: Her judgment we do not disagree with. They may have said: We do not like the law. They may have said: We do not like the law that says you have to consider mitigating circumstances. But since that is the law, she did it, and we do not disagree with how she, in fact, did it. As I have noted earlier, she won the election overwhelmingly. And then after she won the election, her colleagues on the bench, some of whom voted against her on the particular cases that my friend from Utah is going to mention, where she ruled that the death penalty should not be applied, turned around and said: By the way, Rosemary, why not be our chief while you are at it? Why not be the chief justice? During that retention campaign, Justice Barkett was endorsed by the Florida Police Benevolent Association, not known for their opposition to the death penalty; the Fraternal Order of Police, both groups with which I work very closely, as does my friend from Utah, not known for their opposition to the death penalty; and the Florida Police Officers Association, not known as some radical liberal group running around the country deciding that the death penalty is the bane of freedom in America. I am not suggesting those who think it is the bane of freedom in America are radical. Decent, honorable people can disagree on whether or not the death penalty is moral or immoral. But here, police organizations endorsed her. Again, they know her well. And we are here going to second-guess a handful of cases that she decided on, and say we can draw a conclusion from that that this is a woman opposed to the death penalty and she will not apply the death penalty, will not apply the law. In addition, her retention was endorsed by Florida's attorney general, Bob Butterworth, with whom I have worked. Bob is a Democrat, but he is also, if I am not mistaken, a relatively strong supporter of the death penalty; and former Attorney General Jim Smith, a Republican. I might also add there are two Senators from Florida, as we all know, one a Republican and one a Democrat. Both of them endorse Judge Barkett, and I may be mistaken, but I think both of them are supporters of the death penalty. There is a man sitting here who has, as Governor, had to see executed the death penalty. I think it occurred during his tenure. So here we are going, all of sudden, to say: By the way, this person is not qualified because she is ideologically so far to the somewhere, and she is against the death penalty, and we should vote her down. That is one of the arguments you are going to hear. When you hear it, just put it in focus. A Republican Senator and Democratic Senator -- I have never heard Bob Graham labeled a liberal on criminal justice issues. I have never heard Connie Mack labeled a liberal on criminal justice issues, or for that matter, on any other issues. I have never heard the Fraternal Order of Police, the Police Benevolent Association, nor the Florida Police Officers Association labeled a liberal anti-death- penalty group. I imagine former Attorney General Republican Jim Smith will be surprised to learn that he was supporting someone who would not apply the death penalty and apply the law; and I know from my discussions with Bob Butterworth, the present attorney general, a Democrat, that he would be surprised, since he is such a strong supporter. So you are going to hear a lot of specifics, and it is relevant, it is not unimportant, and it is appropriate that we hear it. But when it is all said and done, as my old senior partner -- he is not much older than I am, but my former senior partner, one of the best trial lawyers in the State of Delaware, Sidney Balick -- used to say: Keep your eye on the ball. When he talked to the jury, he started his summation: You have heard all this from the prosecutor, but I want you to keep your eye on the ball. The issue is not would you want to invite this person home for dinner. The issue is did this person commit the crime. Keep your eye on the ball. Here I would like you all to keep your eye on the ball. Listen to what my friends have to say, but keep your eye on the ball. Is this a person who will not apply Federal precedent as it relates to the death penalty, in particular? Because the implication will be, the assertion will be, she did not do it in Florida and, therefore, she will not do it as a Federal appeals court judge. In fact, the police; former attorneys general, Republican and Democrat; a Republican Senator; a Democratic Senator -- all of whom support the death penalty, along with 61 percent of the people of the State of Florida who had this issue aired, among others, not too long ago -- all concluded that she does, has, and will. It is difficult for me to believe that all these folks can be wrong. In my view, most of the remaining questions about Justice Barkett's record may be answered by reference to the distinction between State judges interpreting State constitution and Federal judges applying Federal law. Let me illustrate by discussing two areas of criticism -- privacy analysis and equal protection analysis. Justice Barkett has been criticized for some of her opinions, or opinions in which she has joined, that construed the constitutionality requirement of privacy overly generously, from the perspective of my friends who will criticize her. Regardless of the merits of these opinions, as a matter of Federal constitutional law, these cases, I think, have to be understood in the proper and legal context. These were decisioned arising under both Federal and State law. Justice Barkett reached her conclusions by applying the State constitution and State law. The people of Florida approved a privacy amendment to the Florida Constitution in 1980. Even former Judge Bork could not deny the existence of the right to privacy in the Florida Constitution. It is expressly stated. I spend time with my students. I teach a course in constitutional law at Widener Law School on separation of powers issues, trying to explain the distinction between, when the Founding Fathers came up with a Bill of Rights, how it comported with or did not comport with State constitutions. And when you go back and try to interpret the second amendment or the first amendment or the fifth amendment, what you do in trying to determine the original intent of the Founders -- and granted the Bill of Rights was not ratified at the same time the Constitution was originally ratified, it came along later -- but you go back and look what the State constitutions did to try to give meaning to the intent of the Framers, and it is interesting. Students sometimes are perplexed and surprised to realize that States have gone further than the Federal Government in protecting individual rights. Under our form of Government, our separated powers, separated among the three branches at the Federal level, between the Federal and State level, and between Government and individuals, there is the ability of States, and always has been, to grant greater protection. They cannot grant less protection since the incorporation doctrine, they cannot apply less protection than the Federal Government does, but they can apply greater protection. And the State of Florida, in its wisdom, made a judgment about the right of privacy. The people of Florida approved a privacy amendment to the Constitution of Florida in 1980. Let me get my glasses out to make sure I absolutely read that date. Yes, 1980. I was able to read that date without my glasses. But the Florida amendment was amended in 1980. That amendment provides, and I will quote it: Now, we have, and I predict my distinguished friend from Utah and I will debate the concept embodied in that amendment all through the month of August and September and maybe July, June, whenever we get an appointment, because that is always a central issue of debate and a difference between my distinguished friend and I, whether the Federal Constitution embodies by implication such a right, an unenumerated right of privacy. But here I want my colleagues to understand when they come to debate this issue, this is not a Scalia debate, this is not a Bork debate, this is not a Kennedy debate about privacy, which was raised in every recent Supreme Court nomination. This is a different debate. This is black and white. As I said, even Judge Bork would have to acknowledge that there is a constitutional right of privacy enumerated in the Florida Constitution. It is an important point to keep in mind, I think. Unlike the Federal Constitution, it includes this expressed privacy guarantee. The drafters of the amendment, Florida legal scholars, and the entire Florida Supreme Court agree that this amendment was designed to be more expansive than the Federal right to privacy, as recognized by, and to the extent it has been recognized by, the U.S. Supreme Court. Nobody disagrees with that that I am aware of, even those who may have opposed the inclusion of that right of privacy in the Florida Constitution. It was this State right of privacy upon which Justice Barkett relied in finding that Florida's Constitution protected behavior that would not be protected under the Federal Constitution. Likewise, she has been criticized for opinions in which the Florida Supreme Court struck down State laws on the grounds that those laws were violative of equal protection guarantees. Let me put these opinions in context. In these equal protection cases, the Florida court struck down the laws in question based upon Florida law, not Federal law. Although the court made references in the opinions to the Florida Constitution, the precedent cited to support the court's conclusions were all Florida cases. Before the Judiciary Committee, Justice Barkett testified that Florida law requires a stronger legislative rationale than does the Federal Constitution when the legislature makes distinctions among people. And I know my distinguished colleague knows but the public may not have focused on it as much, what we mean by "equal protection," when we talk about the equal protection clause, we are almost always, in the Federal context, talking about whether or not the law is able to constitutionally, whether legislators like us can get together and discriminate between and among the treatment of women as opposed to men, or blacks as opposed to whites, or Hispanics, or any categorization of people. And the overwhelming notion adopted by the American people, I think embodied in the l4th amendment, but there is disagreement about this among us, is that the law is the law and it should not be applied in a discriminatory manner. It should be applied equally. Now, in Florida, whatever disagreements my friend and I and others who will come and speak on this issue might have about how expansive the 14th amendment is, how expansive the equal protection clause of the U.S. Constitution is, there seems to be little doubt that the Florida Constitution is more expansive; that is, under Florida law and the Florida decisions, at least, Justice Barkett believes that the Florida court was applying a more stringent Florida standard. As this review of privacy cases and equal protection cases reveals, Justice Barkett, in some of these cases joined by a large majority of the Florida Supreme Court and, I might add, never alone, applied the law as called for in each case. When litigants raised both Federal and State constitutional claims, she resolved the cases under State law, where appropriate. Reasonable judges might disagree with her conclusions in one case or another, but it seems clear that she performed the job of judging with due prudence and respect for the applicable law, and the most controversial cases that is Florida law. For all these reasons, her high integrity, her unquestionable competence, her respect for precedent, I am pleased to support Rosemary Barkett's nomination for the eleventh circuit. Based on the standards this body has long applied to the court of appeals nominees, she deserves to be confirmed. Let me conclude this portion of my remarks, Madam President, by saying that someone's personal journey to this point of being considered is, in my opinion, often used as a cover to keep us from looking at their competence and how good they are. So I have not dwelt at all on what I will at a later time, the extraordinary character of this woman, the extraordinary gains she has made, the absolutely admirable and almost enviable familial ties she has with numerous brothers and sisters, having been born in Mexico, emigrating to the United States, having made her way through her first language to her new language to her present language, to all the impediments that were in her way, never having lost for a moment this incredible optimism she has; absolutely incredible optimism. I know it is overused and so I even hesitate to say it here, but talk about the American dream, talk about the personal qualities that Americans admire, talk about the story that says anything can be overcome, you have it all written in the journey of this woman's life to this point. But I have not gone into that because I think we need not even look at that to go by every objection as to why she should not be in the court. It is flatout integrity, commitment to your job, superior intellectual and educational credentials that qualify this woman to sit on this court at this moment in our history -- or, I might add, any moment in our history. But I will return to speak to some of these issues later. I thank my colleagues for their indulgence and I now yield the floor to my distinguished friend and ranking member of the committee. The PRESIDING OFFICER. The Senator from Utah is recognized. Madam President, I have really enjoyed listening to the distinguished Senator from Delaware, the chairman of the Judiciary Committee, explain his reasons for supporting this rather extraordinary woman. I want to say at the outset I do not think anybody would find fault with her as a person. She is a lovely person, a good person. I have a great deal of admiration for her life and what she has done with it. I like her personally very much. I have expressed that both in committee and outside of committee. So it is not a question of her individuality -- she is a good person and she has proven that throughout all these years. I like her family. I have met many members of her family. I feel badly, in a sense, having to oppose this nomination because I do like her so much and I like her family so much. But let me just mention a few things. Senator Biden mentioned the 61 percent vote down there in Florida, where she ran unopposed. That is an important issue. He mentioned the support of various people in Florida, including police organizations. There were plenty who were opposed to her, too. Those may be good points, but this is not an election we are talking about. This is not a forum for voting, in the sense of rubberstamping whatever the people of Florida did. More important, the argument that her 61 percent vote in Florida proves that she is very well qualified to be on the Federal Circuit Court of Appeals for the Eleventh Circuit, I think, is faulty. Let me begin by noting that success in a retention election, where a person is unopposed, may say something about a judge's skills as a politician but it often says little or nothing about a judge's ability as a judge. In addition, the standard for retaining a judge may understandably be much lower than the standard for elevating a judge to the Federal appellate bench. That is, the standard for retaining a judge in any State may be much lower than the standards for elevating a judge to the Federal bench. I will note that Chief Justice Barkett's supporters in the retention election emphasized that there should be a strong presumption in favor of retaining a sitting justice. Justice Barkett's supporters speak as though this 61 percent vote was a ringing endorsement. In fact, it was the second-lowest vote ever in a retention election in the State of Florida, for retaining a Florida Supreme Court Justice, even though, according to press reports, Chief Justice Barkett outspent those opposing her retention by a factor of 3 to 1. Let me note that a justice in a retention election is not running against anybody. Yet she only got 61 percent of the vote and outspent her opponents 3 to 1. Let me say, voters vote only on whether or not to retain that justice in that Florida election. So what is remarkable is that 2 out of 5 Florida voters have sufficiently strong dislike for Justice Barkett's record that they, in effect, regarded any replacement for her as an improvement over her tenure on the court. That point has to be made because it is important. Somehow, when 2 out of 5 Americans voted for him, President Clinton claimed that he had a mandate. When 2 out of 5 Floridians voted against Justice Barkett, the White House considers their opposition insignificant. It was not insignificant, nor should that point be made as though we should rubberstamp this appointment because 61 percent, the second-lowest number in the history of Florida, voted to retain her in an election where she had no opponent other than people who were upset with her standards of judging. The Senate has an obligation under the Constitution to provide its independent advice and consent on this nomination. That means that we have to examine the nominee's record. Although she is a very fine person and a good person and a person I like, if you look at the record -- I do not care who you are -- you have to be concerned. To defer instead to the 1992 retention election would be nothing less than a dereliction of our constitutional duty. So do not raise that with me as though that is what we should do just because of that. Another argument the distinguished Senator from Delaware made, basically, is that Justice Barkett's role as a Federal appellate judge would be fundamentally different from her role as a State supreme court judge and that you cannot make judgments on the latter based on the former. That just is not true. This argument cannot be taken seriously. In the first place, the role of a State supreme court justice and the role of a Federal appellate court judge are identical, absolutely identical, in terms of their obligation to follow the U.S. Supreme Court precedent on issues involving Federal constitutional law. As I have discussed and shown at length in prior speeches on the floor, Justice Barkett has not been faithful to U.S. Supreme Court precedent while on the Florida supreme court. There is no reason to believe that she will be any more faithful to Supreme Court precedent once she reaches the Federal bench. Second, State court judging and Federal judging have a common core. At bottom, they turn on legal reasoning. A judge who shows excessive sympathy for criminals, as Justice Barkett does, or who engages in sloppy reasoning in one court, can be expected to display the same flaws on any other court. And that is one of the problems. Finally, Justice Barkett's supporters cannot have it both ways. They cannot claim on the one hand that her record as a State supreme court justice somehow shows that she would make a good Federal appellate judge, yet contend on the other that her record as a State supreme court justice cannot be used to show that she would be a poor Federal judge. I noticed in the discussion of the distinguished Senator from Delaware on this issue he did not cite many of her cases. In fact, I do not recall him citing one of her cases. On this matter of softness on crime, which pervades Justice Barkett's opinions, her opinions are filled with soft versions of judging. It should be noted President Clinton is meeting today with hundreds of police officers. This may make good public relations, but if the President continues to appoint judges who handcuff the police, then all of the President's anticrime rhetoric is just empty talk -- just plain empty talk. Unfortunately, I am coming to the conclusion that most of his rhetoric on the issue is empty talk, especially when you notice he has cut prisons again. The last budget cut them $500 million plus. This budget cuts them $73 million. He has cut 1,500 positions -- almost 1,600 positions out of the FBI, Drug Enforcement Administration, Drug Task Force, prosecutors down at Justice; he has cut basic grants to the States -- all at a time he is saying, "I want my crime bill passed through the Senate and through the House," and meeting with all these police people today, very ironically while we are debating Justice Barkett's record. For those who think this is a debate over capital punishment, or who believe we are only raising the death penalty issue -- they are important in her decisions, because you are going to find her death penalty approaches, or at least one, would completely outlaw the death penalty. It would completely make it impossible to ever implement it or enforce it. She would have to be a pretty poor justice not to go along with an awful lot of the opinions that upheld the death penalty -- it used to be 250, now it is down to 100, according to the Senator from Delaware; I am sure it is between 100 and 150 -- but you almost have to. Most of the decisions made by these people are decisions that are matter of course decisions. But it is where she gets down to the nitty-gritty and expresses her own opinion or opinions with regard to the death penalty that you will find that she is wanting. But it is not just the death penalty, which the media tends to make these debates turn on. That is important, and that is an important part of the opposition, but it is not the most important part. Upon review of her judicial record and of her testimony before the Judiciary Committee, I have to oppose this nomination, even though I like her, even though I would like to put her on the bench and even though I wish her well and even though I recognize the travails of her lifetime. I just do not think she should be a judge on the U.S. Court of Appeals for the Eleventh Circuit, and I do this with regret, as I say, because I like her and I consider her to be a fine person, and her family as well. But I do so with a firm view that her record establishes that she will substitute her own policy views for the written law and take too soft an approach to criminal law enforcement. At a time when we are awash in drugs, awash in crime, awash in all kinds of difficulties, I do not think we should be putting people on the bench who do not hold fealty to the law and who are not going to be tough on crime. In reaching this conclusion, I stress that no judicial nominee needs to agree with my reading of the law or any other Senator's reading in all or nearly all cases. But there just are too many cases, across too wide a range of subjects, where I believe that this nominee stepped well past the line of responsible judging. I and other Senators inquired about many of these cases at her hearing before the Senate Judiciary Committee. Incidentally, I notified Chief Justice Barkett in advance of the cases that would be the subject of inquiry that I intended to raise with her. I gave her time to look at them. I was not reassured by her testimony even though she had adequate time to look at them. Indeed, Chief Justice Barkett ultimately admitted that she overreached or was careless in a number of important opinions. For example, in her dissent in the 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 on the Federal equal protection clause, and without citing any legal precedent or any Federal precedent, she asserted: 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 again 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. Now, neither of these cases, though extremely important cases, are death penalty cases, and I hope the media understands that, because this type of judging is pervasive and could cross all kinds of constitutional lines. Justice Barkett's misreliance on the Federal equal protection clause in those 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, which rejected her view under the Constitution. McCleskey versus Kemp squarely rejected her position and her view under the U.S. Constitution. She admits that. 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 a Supreme Court precedent foreclosed her reliance on the U.S. Constitution deeply troubles me. Supreme Court precedent governs lower courts not only when the claim presented is identical to that previously rejected by the Supreme Court but also when the basic doctrinal principles enunciated by the Supreme Court are applicable to a case. The failure to appreciate this opens the door to judicial activism -- a door, I regret to add, I believe this nominee has repeatedly walked through. I do not think anybody doubts that I have been as fair to judicial nominees through my history in the Senate of 18 years as anybody could be. I have certainly bent over backwards to try to help any judge and certainly any President who has appointed a judge. So I reluctantly oppose this person for this particular position but not because I am unsure of what I am talking about. 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 14th amendment to the U.S. 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, to put it in her words, "careless." Now, I can accept that, on occasion, a sitting judge may wish to phrase an opinion differently, in hindsight, or even believe that he or she got an opinion wrong. But tossing into her opinion the Federal equal protection clause and the Federal due process clause, on occasions where they very clearly do not belong, raises concerns that I do not find assuaged by testimony acknowledging this was erroneous. These two clauses are among the most powerful tools a judge can use, if so inclined, to legislate from the bench -- or put it another way, to be a "superlegislator" in black robe on the bench. In the case of the equal protection clause, virtually every law classifies people into at least two classes on some basis. Congress might enact limits on medical or product liability, which are subject to equal protection analysis as a component of the due process clause of the fifth amendment. States or Congress may seek to remove recipients from welfare rolls after a time limit of 2 years. A misreliance of Federal equal protection in reviewing these laws would lead to their erroneous invalidation. In the case of the due process clause, there is a tendency by some judges and commentators to read almost anything into it. This it all the more troubling because the misuse of these two clauses is not subject to limiting principles of judging but only to the whim of the judge. So they can really be misused. There will be many cases of first impression before the eleventh circuit court of appeals, the court to which she aspires. There will also be many times when precedents must be construed, and they may be construed broadly or narrowly. Most appellate decisions are not reviewed by the Supreme Court. These errors then are not merely technical or academic. They could be errors that could stand for years and hurt an awful lot of people because of the misjudging by people who use the logic that this judge has. At her hearing, Justice Barkett recognized that this opinion gave a clear appearance of partiality, as it expressed a preference for a party based on who the party was rather than the merits of that party's argument. She stated that she wished she had written her opinion differently. In any case, I am willing to give the benefit of the doubt to a nominee. But there are just too many instances in Justice Barkett's judicial record -- the principal basis for evaluating her nomination -- of overreaching, and on very significant issues, to leave me comfortable with elevating her to the Eleventh circuit. There are many other cases that concern me. For example, in 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 v. California [413 U.S. 15 (1973)], which Chief Justice Barkett does not even acknowledge, much less discuss. The fact is that obscenity can be defined, and it has been defined by the court. 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. Incidentally, while I am pleased that she voted to uphold a Florida child pornography statute in a different case, I make two observations. First, this does not mitigate her sweeping views about the more general subject of obscenity. Second, contrary to her testimony, the child pornography statute is a different statute from the one she voted to strike down in Stall. I have all of these concerns, and have yet to reach the issue of criminal law enforcement generally and the issue of the death penalty specifically. There is much to say on these subjects. 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 handcuff the police, especially with regard to controlling drugs. [See, e.g., Bostick v. State, 554 So.2d 1153 (Fla. 1989), rev'd, 111 S.Ct. 2382 (1991), on remand, 593 So.2d 494 (Fa. 1992); State v. Riley, 511 So.2d 282 (Fla. 1987), rev'd, 488 U.S. 445 (1989), on remand, 549 So.2d 673 (Fla. 1989); Cross v. State, 560 So.2d 228 (Fla. 1990); Sarantopoulos v. State (Fla. Dec 9, 1993)]. For example, in Bostick, 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. Justice Barkett even saw fit to compare the police search method at issue to methods used by "Nazi Germany, Soviet Russia, and Communist Cuba." 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 six-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. That is amazing because we just heard the distinguished Senator from Delaware talk about how important this law of privacy is that is not enumerated right in the Constitution, he claims. Normally, when liberals talk about privacy, they are talking about abortion, they are talking about homosexual rights, they are talking about obscenity and pornography and the rights to them, and any number of other things, mainly dealing with sexual aberrations. (Mr. GRAHAM assumed the chair.) But in this case, she held that the privacy right to stop the police operating on a tip from looking over a fence making sure there was marijuana there and then going and getting a lawful search warrant. That bothers me quite a bit. Justice Barkett has also written opinions striking down narrowly drawn laws that ban loitering for the purpose of prostitution and drug dealing. Think about that. These opinions are badly flawed and misapply precedent. Moreover, they seriously disable communities from preventing harmful crime. Keep in mind as I am discussing these matters that she is appointed by a President who is claiming that he is going to be as tough on crime as anybody in history while at the same time his Office of Management and Budget is cutting criminal law enforcement by leaps and bounds and at the same time he is appointing judges like this one to higher positions in the Federal court system where they can decide opinions that may never be decided by the Supreme Court to become followed by other circuits and by other people who at least in this case -- and I believe we will find others -- are really soft on crime. This bothers me a lot. In my view, there are too many other instances where she unjustifiably construed criminal statutes in favor of criminals. [See, e.g., State v. Bivona, 460 So.2d 469 (Fla. DCA 1984), rev'd, 496 So.2d 130 (Fla. 1986); Gayman v. State, 616 So.2d 17 (Fla. 1993).] With regard to the death penalty, I appreciate that the nominee has voted to uphold the death penalty a number of times. And as the distinguished Senator from Delaware has said, I would expect as much in a state with a lawful death penalty and, unfortunately, a great deal of violent crime. But as I stated at Justice Barkett's hearing, a proper inquiry into a nominee's judicial outlook on the death penalty is not ended merely by noting that the nominee has upheld the death penalty in a number of cases, where even the most activist of judges cannot avoid its imposition. If a nominee exhibits a clear tendency to strain for unconvincing escapes from the imposition of the death penalty, as this one does, 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 Justice Barkett's record, I have concluded that Justice Barkett clearly exhibits such a tendency. Let me further note at this point that one of Justice Barkett's dissenting opinions would render the death penalty virtually unenforceable, unless imposed on the basis of racial quotas. Her partial dissent in Foster versus State, had it been the law in Florida when she joined the Florida Supreme Court, would likely have led to a different outcome in many, if not virtually all, of the cases where she voted to uphold the death penalty. Indeed, the theory she embraced in Foster, until its rejection by the Supreme Court in 1987, had become a principal weapon in the anti-death-penalty movement's arsenal and will be a principal weapon in the anti-death-penalty arsenal of those arguing against the death penalty in the House of Representatives this week, and probably next week, as they discuss the crime bill. It is all right to differ on whether you believe or disbelieve in the death penalty. People have sincerely held beliefs there, I understand, and I do not have any problem with people in the legislative bodies debating whether or not we should impose the death penalty in American constitutional and criminal law. But I do have problems where it is imposed and is currently the state of the law of the land, where judges like Justice Barkett find every excuse they can to try not to impose it and, in this particular case, would impose it only by racial quotas. That bothers me. Overall, I believe Justice Barkett, in reviewing death penalty sentences, views aggravating circumstances much too narrowly; construes mitigating circumstances much 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 various procedural anomalies. Let me mention two of the many cases that concern me. They were mentioned in the hearings. Dougan versus State was a 1992 Florida Supreme Court case. Dougan was the leader of a group that called itself the "Black Liberation Army," which, according to the trial judge, had as its "apparent sole purpose" -- this is the trial judge speaking -- "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, armed with a pistol and a knife, went in search of victims. They picked up a white hitchhiker, Steven Orlando. I am quoting: Continuing: I rarely fault a nominee about an opinion the nominee has joined rather than written. I do not hold a nominee to every word or phrase in an opinion he or she joins. There is an outlook which pervades this dissenting opinion, however, which is so striking and disturbing that I believe it is appropriate to consider that outlook in evaluating this nomination. This is especially so in light of the fact that in many other cases Justice Barkett has written separately, or merely stated that she concurred in, or dissented from, the result, when another opinion had not suited her. Normally, I would summarize this dissent, but I do not want anyone listening to think that I am distorting it. Accordingly, I am going to read verbatim excerpts from the dissent in which she joined: I am sorry, but I have to interpolate here for a minute. Tell that to the victim's mother to whom he sent that tape, saying how much he enjoyed seeing the blood gush from her son's eyes. Continuing on in the direct quote from the dissent, and that is remarkable language: Let me go on: This is a man who was trying to foment revolution by going out and finding whites and killing them. And she went along with this dissent. This opinion reeks of moral relativism and excuse-making that I find shocking and unacceptable. Again, as much as I personally like Chief Justice Barkett, I find it disturbing that President Clinton would nominate someone to a judgeship who would apply these views to judicial decisions. In the October 11, 1992, Sunshine magazine, the following reactions to this Dougan dissent are quoted: Let me explain why the general attitude and outlook adopted by Justice Barkett in that dissent concern me so much. The approach taken in that dissent is certainly applicable to others besides Dougan, including criminals of all races. Let me note that we have many cases in our country of racially motivated, disgusting, violent crimes against racial minorities. I do not view the perpetrators of such violence as worthy of a lesser penalty on account of their backgrounds or personal histories either. If a person of any race, ethnic background, or social class considering violent or other crimes comes to believe that the judicial system views past mistreatment or discrimination against them as mitigating the seriousness of the crimes they commit or the penalties they face, I believe you undermine the principle of neutral justice and seriously reduce the deterrent value of the law. You create, frankly, an environment or atmosphere of permissiveness if these kinds of reasons can be used to justify lesser sentences. And I am not only talking about murder cases, such as the recent Colin Ferguson case on a Long Island commuter train. I mean other crimes as well, assault, robbery, carjackings. Do not view this as just a murder case or just a capital punishment matter or a death penalty matter. It is a lot more than that. Before Senators cast their votes on this nominee, they should read the opinions in this Dougan case, along with any other opinions they deem relevant. In another case, LeCroy v. State [533 So.2d 750 (Fla. 1988)], the Florida Supreme Court, by a vote of six to one, affirmed a death sentence for two brutal first-degree murders by LeCroy, who was 17 years and ten months old when he committed the murders. The court noted, among other things, that the sentencing judge gave great weight to LeCroy's youth but found him mentally and emotionally mature. It also noted that Florida statutes clearly provided for some decades that 17-year-olds charged with capital crimes should be punished as adults. Construing U.S. Supreme Court precedent, it ruled that there was no constitutional bar to the imposition of the death penalty on those who were 17 at the time of the capital offense. In her lone dissent, Justice Barkett concluded that the eighth amendment of the Federal Constitution prohibited Florida from executing those who were under 18 at the time of the crime. Reaching out to overturn this death sentence seems to be another clear instance of the nominee injecting her own policy preferences for the law because that is not what the Florida law was. It is an unfortunate fact that 16 and 17-year-olds are committing the most vicious of adult crimes, including much-noted murders of tourists in Florida and elsewhere around this country. If a State wishes to treat them as adults when they commit such crimes, then the substitution of a judge's personal views for the legislature's enactment under Supreme Court precedent is clearly wrong. Not surprisingly, the U.S. Supreme Court later confirmed that it was the majority in LeCroy, rather than Justice Barkett, who had correctly read the Federal Constitution. That is in the Stanford versus Kentucky case. I have many other concerns about this nominee -- including, for example, her openness to pervasive quotas -- and many other opinions of hers that trouble me. These concerns are outlined in some detail in three memoranda on Justice Barkett's cases that I attached to my March 22 floor statement on this nomination. I urge my colleagues to review those memoranda. Some may claim that those of us who have concerns over this nomination have focused on a relatively small number of cases and that this is not an appropriate way to evaluate the nominee. I have a three- part response to this concern. First, a large number of cases of any appellate court are, frankly, routine, and I would expect that virtually all judges would rule unobjectionably in most cases before them. Second, and more importantly, if a small number of cases gives rise to large concerns, it is appropriate to base a vote on those cases. For example, the flagrant misuse of the Federal equal protection clause and the Federal due process clause may have occurred in just a handful of cases. But these two constitutional provisions are far too powerful, far too open to picking and choosing among democratically enacted statutes based on the policy preferences of a judge, for me to be much comforted by unobjectionable decisions in numerous other, routine cases. A single dissent that would sweepingly invalidate obscenity laws, notwithstanding clear U.S. Supreme Court precedent to the contrary, is tremendously significant for what it says about a nominee's legal outlook in a very important area of law. And it gives rise to doubts about whether the nominee will properly apply that Supreme Court precedent, especially in light of other opinions that give cause for the same concern in other contexts. A series of search and seizure opinions, improperly hamstringing the police in significant ways -- especially in the war on drugs -- has an importance beyond the mere number of these cases. An opinion, like her partial dissent in Foster, that would paralyze enforcement of the death penalty counts more than scores of routine death penalty cases. Joinder in an opinion like the Dougan dissent speaks volumes about a nominee's outlook on crime and personal responsibility, and you cannot just limit it to the death penalty. I could go on and on, but this leads me to my third point: The concerns about this nominee arise from more than a handful of cases, and they arise across numerous areas of the law, not just the death penalty, although that is important as well. I therefore have concluded with regret that I cannot in good conscience support this nomination. I will close by noting that all of the tough-on-crime rhetoric the President is serving up these days means less than his actions, including selection of judges. Placing more police officers on the street will avail us little if judges hamstring them in their work and hamstring them in their constitutional duties; if these judges construe our criminal laws in an unduly narrow fashion that will hamstring criminal law enforcement; or if they sentence criminals they do convict with unwarranted sympathy for the criminal, which will hamstring Federal criminal law enforcement and frankly law enforcement across the country. And in this judge's case that is what she has done and has a propensity to do and I believe will do if she is placed on the eleventh circuit court of appeals. So I am extremely concerned about putting judges like this on the higher courts of the Federal courts of this land where they have lifetime tenure, where they can do whatever they want to, where they can allow all the emotional predilections to take over and where most of their cases are not going to be heard by the Supreme Court because the Supreme Court can only hear about 100 or 200 cases a year and where other judges can start to follow this type of soft-headed, soft-on- crime judicial analysis. So I am very concerned about it. Again, I will close by saying that I like this person as a human being. She is a good person. She came up the hard way. She has a good family. I like them. I grieve having to make these points, but I have to place my responsibilities as a person who loves and upholds the Constitution above my personal likes or predilections and frankly ahead of my likes or dislikes. In this case, I like this person, but I do not believe that she has exhibited the type of judicial analysis that justifies appointing her for this lifetime position in this very, very important circuit court of appeals under these circumstances. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER. The absence of a quorum having been suggested, the clerk will call the roll. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered.