Barkett is being Borked

February 21, 1994|By Anna Quindlen

BEFORE Rosemary Barkett was the chief justice of Florida's Supreme Court, she was a trial judge. Before she was a trial judge, she was a trial lawyer.

And before she was a trial lawyer, she was a nun.

Which is why, during her confirmation hearings, Sen. Joseph Biden hearkened back to his days in parochial school and asked whether she had a clicker.

"No, Senator," Justice Barkett replied. "Just a ruler to rap appropriate knuckles. I hope it will not be necessary this morning."

I'll take that ruler, and mark the senators tardy while I'm at it. In September, Justice Barkett, a 15-year veteran of the bench, was nominated to the 11th U.S. Circuit Court of Appeals.

Six months and her nomination has not yet led to confirmation, mired in a smear campaign that has far more to do with posturing and payback than with her qualifications, which are both manifest and manifold.

Justice Barkett is being Borked. She is being Thomased, too, by Sens. Orrin Hatch and Strom Thurmond and other members of the Judiciary Committee who believe conservative jurists have been crucified by liberal senators and now intend to return the favor.

The litmus test is dead; long live the litmus test. During her confirmation hearings earlier this month, Justice Barkett was asked not a single question about abortion.

Instead the senators were so preoccupied with the death penalty -- and their newfound zeal on crime -- that she might as well have been seated in an electric chair for dramatic effect.

What followed was statistical bickering and Grand Guignol. Senator Hatch said the White House had given him misleading statistics about how many times Justice Barkett had voted to uphold the death penalty. Senator Thurmond spelled out the gory details of every murder case in which the chief justice had voted to overturn death sentences.

If he'd had autopsy pictures it's a cinch he'd have passed them around.

The blood and guts can't take away from the fact that the justice's job, as she repeatedly testified, is to make certain that .. Supreme Court standards of weighing mitigating and aggravating factors are properly applied.

Nor can it disguise the truth: that Justice Barkett has voted with ++ the majority in almost 90 percent of the cases that have appeared before the Florida Supreme Court. And that she has voted to uphold the death penalty in many, many more cases than she has voted to overturn it.

Considering whether another human being has been accorded justice before being put to death is perhaps the most important duty an appellate judge ever has; suspect the jurist who finds that standard always met.

Says Justice Barkett, "I neither flinch from applying it when the death penalty is called for, nor do I flinch from vacating it when the law requires it."

This obdurate insistence on due process landed Justice Barkett on "The 700 Club," where Pat Robertson called it "unbiblical" not to execute murderers. THIS IS THE ONE! the right-wing Free Congress Foundation wrote in its overwrought dispatches about the need to defeat this soft-on-crime jurist who somehow managed to get the endorsement of the National Association of Police Organizations.

She is the one. Her wide-ranging judicial experience is the sort that Clarence Thomas conspicuously lacked before Anita Hill ever came along; her opinions have a feel for the human aspects and evolutionary nature of the law that those of the rigid and remote Judge Robert Bork did not.

And she has some active supporters they did not. The American Bar Association gave her its highest rating. More important, so did the people.

In 1992 Justice Barkett faced a retention referendum replete with right-wing opposition; 61 percent of Floridians supported her.

If the Senate is looking for a grass-roots referendum, there's been one, and Justice Barkett won by a margin any politician should be able to understand.

The woman is qualified in every way: so say the people, the police, and the peers who elected her to lead her state's highest court. Now it is the Senate's turn to break the cycle of pandering and payback and confirm her.

Anna Quindlen is a columnist for the New York Times.

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