Monday, April 22, 1996 | 11:59 a.m.
WHETHER THE VOTERS like it or not, the 1996 races for the White House and Congress will include some nasty arguments about the third branch of government.
Federal Judge Harold Baer Jr., an appointee of President Clinton, gave the GOP the opening it desired to make all of his appointees in the past and those who might be appointed in the future a political issue. Baer's illogical ruling, protecting possible drug runners and attacking the arresting police, drew fire from all sides of the political spectrum and even from the White House. Baer eventually reversed himself, but the fat was in the fire.
The Weekly Standard magazine, one of the conservative Republican publications that should be read by political writers, in a recent article advocated: "Let's have a fight about judges." Writer David Tell tells us that the "Republicans are eager to use the president's judicial appointees against him in the coming campaign." Of course, Judge Baer's initial ruling was among the cases Tell uses as an example.
Judge Baer's initial ruling was also the lead in an article written by Clint Bolick for USA Today. Bolick is identified as litigation director for the Institute for Justice, which did a study on Clinton judges for the Goldwater Institute. He zealously points to several specific rulings that he believes show Clinton appointees are pro-defendant.
Bolick writes, for example: "In seven criminal law opinions by appellate Judge Rosemary Barkett, she sided with criminal defendants in all seven." ... "Third Circuit Judge H. Lee Sarokin voted to overturn the death penalty for two defendants convicted of brutally murdering elderly victims in their homes. Sarokin cited technical mistakes in jury instructions, even though the juries based their punishment decision on multiple grounds."
Although GOP presidential candidate Senate Majority Leader Bob Dole, R-Kan., and Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, seldom voted against Clinton court nominees, they did, Bolick readily points out, oppose Barkett and Sarokin's elevation from lower federal courts. All but four of 185 federal court nominations by Clinton have won by voice-vote Senate approval.
So all the judge-bashing has been strictly Republican and the White House has remained silent? No. Jack Quinn, a counsel to Clinton, last month fired off an article published by the Wall Street Journal.
The first five paragraphs of Quinn's article, "Let's Play 'Whose Judges are Tougher on Crime,'' came out swinging:
"A 13-year-old boy is murdered by four young men because he catches them stealing a bike worth $5. The four men stomp the boy to death and stifle his screams by shoving stones down his throat. All four are convicted of second-degree murder, and their convictions are affirmed by a state appellate court.
"Then a federal judge decides that the trial transcript suggests that one of the defendants' constitutional rights had been violated. The judge reverses the conviction and criticizes the police for what he says are 'troubling' inconsistencies between detectives' written reports and their trial testimony. Annoyed at the prosecution's decision to file an appeal, the judge then orders the defendant freed on $3,000 bail. Despite evidence that convinced a jury, the judge calls the prosecution's appeal 'preposterous.' A unanimous appeals court affirms the judge's decision.
"Is this another Clinton appointee who, according to this newspaper's editorial page, is the sort of judge willing to 'put a murderer back out on the streets' because of technical trial errors? No, in fact, the judge was appointed to the bench by President Reagan. And the three appeals court judges who affirmed his decision? You guessed it, they were all Reagan judges -- the ones who, in this newspaper's view, are supposed to be 'willing to overlook a technical violation in order to protect the rights of the community.'
"Or take another instance plucked almost at random from recent federal cases: One of the participants in the notorious '911 murders' in Detroit, in which a husband and wife were shot 22 times by burglars, asked a federal judge to let him go 16 years after the crime, on the basis of comments the sentencing judge made more than a decade after the trial. The federal judge orders the man freed unless the state is willing to resentence him. Why? Because the after-the-fact comments by the African-American judge might have revealed bias against the African-American defendant in a case in which the victims, the prosecutor and the defense counsel were also African-Americans.
"The president who appointed this judge? George Bush."
There's little, if any, doubt that politics will be a factor of some degree during the 1996 race for the White House despite the vulnerability on both sides of the issues. Historically, the issue of judges hasn't been the determining factor in any presidential race, because Americans want federal judges to be independent of political pressures. This is also the expressed desire of our Founding Fathers and, therefore, judges appointed by presidents don't always rule according to the expressed philosophy of the person appointing them. Chief Justice Earl Warren, appointed by President Dwight D. Eisenhower, is an excellent modern example of this happening.
Politics certainly is playing roles in recent actions by some senators. Sen. Charles Grassley, R-Iowa, is playing the political game by trying to eliminate the 12th seat on the D.C. Circuit Court, and Sen. Slade Gorton, R-Wash., is playing the same game in his attempt to split the 9th Circuit Court into two circuits. Beyond these not-uncommon games, it's up to American voters not to allow partisan politics to become a deciding factor in the race for the White House.
archive
