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EMERSON RULING IS A MIXED BAG FOR GUN RIGHTS
Buffalo News, The (NY)
January 6, 2002
https://infoweb.newsbank.com/
Few have yet heard of the Emerson Decision.
The name "Emerson" suggests a 19th Century era of thinking and writings on individual rights from Ralph Waldo Emerson and Henry David Thoreau.
Every student of American literature reads something from Thoreau's "Walden Pond," a collection of essays about nature and the nature of mankind on this earth.
Emerson, Thoreau's friend and mentor, also spoke and wrote about how free, independent individual Americans should learn and prosper in a free society.
Today, those two philosophers might cringe at volumes of impositions imposed on constitutional freedoms -- especially gun ownership and use.
One outstanding example of that imposition emerged with a recent ruling of a three-judge panel from the Fifth Circuit Court of Appeals in New Orleans concerning divorce proceedings of Dr. Timothy Joe Emerson in San Angelo, Texas.
Emerson, no direct relation to the famed New England writer and philosopher, owned guns and, by federal law, was forbidden gun ownership through a temporary restraining order imposed by a Texas court during divorce proceedings.
In 1998, Emerson challenged that law. It took two years of reading and studying a 1939 U.S. Supreme Court case (U.S. vs. Miller) before the case was decided in favor of Emerson's individual ownership rights.
Federal District Court Judge Sam R. Cummings of Lubbock, Texas, declared the restraining order " . . . unconstitutional on grounds that Second Amendment rights are too important to be abrogated by so casual a means as a 'boilerplate' restraining order in a divorce action."
It was a clear victory for Second Amendment rights of individual gun ownership and gun owners.
Cummings went on to point out that this amendment applies to individuals -- a pronouncement Attorney General John Ashcroft had made earlier -- not state national guards, which placed Emerson's case in appellate court.
Two of three appellate judges endorsed Cummings' ruling, which determined U.S. Supreme Court case U.S. vs. Miller had nothing to do with National Guard status -- a position gun controllers have held with the catch phrase "a collective right" since this case was determined in 1939.
Sheldon Richmond, with the Future of Freedom Foundation in Fairfax, Va., wrote, "The Supreme Court has never held that the right to keep and bear arms is something other than an individual right." Seems simple.
Then, further stipulations are made. These appeals court judges went on to assert the right of courts' issuance of restraining orders where the courts may be convinced of a "presently existing actual threat." Hence, Emerson's indictment has been reinstated and he will have to stand trial on the order, unless he can present a successful appeal to the U.S. Supreme Court.
Emerson was acquitted on state charges of "threatening behavior," which federal courts decided would grant him gun-ownership rights under the Second Amendment. But the statute also requires him to appear for a hearing on that restraining order. A Yogi Bera version of Catch-22?
Under these complex laws, an American citizen who owns guns can be innocent (found not to be a "present threat"), yet be sent from state to federal courts to prove his or her stability -- even though federal courts now confirm an individual's right to keep those guns.
Emerson's difficulties became compounded mainly as a result of the 1994 National Violence Against Women Act, which forces him to resolve a civil divorce court restraining order, even though that order was issued during a divorce proceeding that is now finalized.
Confusing? Perhaps that is why Emerson's case has not received its deserved national attention. These complications, along with events on and after Sept. 11, have kept this pro-Second Amendment victory and current setback out of headlines.
If it came down to a simple answer, gun owners, hunters, target shooters, and gun collectors could come away from this Emerson decision with a notable victory. This appeal on restraining-order charges further clouds Second Amendment interpretations.
To help resolve Emerson's subsequent court battles and continue to affirm gun-owner rights, Second Amendment Foundation leaders have established an Emerson Defense Fund.
To learn more about this Emerson decision and all later legal outcomes and pending issues, see the SAF Web page at: www.saf.org. Contributions may be sent to: SAF Emerson Defense, 12500 NE 10th Place, Belleview, Wash. 98005.
INS comes to rescue of abused immigrants
Agency can grant green cards in cases of domestic violence
San Antonio Express-News (TX)
January 22, 2002
https://infoweb.newsbank.com/
For people who don't speak English, don't drive and don't have permission to be in this country, the immigration service would seem the last place to turn for help after being punched by a spouse.
A little-known federal law, however, is providing access to green cards for a rapidly increasing number of undocumented immigrants who have been brutalized and even imprisoned in their homes.
In sworn statements and interviews, victims who had dodged authorities, sometimes for years, emerged from the shadows in San Antonio to describe their suffering at the hands of spouses. They have had guns pointed at their heads, clothes torn off their bodies and been isolated from friends and family.
"When I resisted urges for sex, he pulled my hair, ripped my underwear off and smacked me," a Salvadoran woman told authorities. "(He) often carried a weapon and often used to pistol whip me."
A Chinese woman said her husband threatened to call immigration and seek her deportation if she didn't have sex.
A Mexican construction worker describes how he and his young son fled the house barefoot and bloodied, and escaped his wife by hiding beneath the overpass where U.S. 281 crosses Brooklyn Avenue in downtown San Antonio.
"When you say loca (crazy), you are talking about her," said the man, who met his wife in Bible study.
The man said he didn't fight back because he didn't want to hurt his wife and knew if he touched her, police wouldn't believe she attacked first.
In an era when immigration laws are tightening, the Violence Against Women Act is quietly becoming one of the biggest advances in years for foreigners in this country.
Under the immigration arm of the act, in effect for five years, the INS has approved temporary residency applications from 12,709 undocumented immigrants who were battered by their spouses in this country. More than 4,500 of the permits were approved last year, almost twice the number approved in 2000.
Men and children also are eligible, but few apply.
Also in 2000, Congress eased requirements under the law, no longer making applicants offer proof they have experienced "extreme" hardship.
While their hellish journeys varied, most of the immigrants said they lived in fear of not only physical abuse, but also of spouses' threats to call the Immigration and Naturalization Service.
The horror is still fresh for a 28-year-old from the border state of Tamaulipas, Mexico, who said earlier this month that she was regularly pummeled by her husband until a neighbor helped her seek protection.
"In front of the children, in front of a friend, he pulled my hair and slapped my face when I was six months pregnant," the woman said of one of many attacks by her husband, a U.S. citizen.
She, like others who were attacked, asked that her name not be published, and said she hadn't called the police because she feared authorities would kick her out of the country and separate her from her children.
Despite the increasing numbers, many abuse victims don't know about the law because they are isolated, authorities said.
"I've had clients who were actually prisoners," said Lee J. Teran, director of the Center for Legal and Social Justice for St. Mary's University School of Law.
Teran, who with her students has handled dozens of cases for free, said it is difficult for victims to leave abusers.
"They believe deeply in keeping their families together at all costs," she said.
The INS reports most of the applications came from women of Mexican descent who are now living in southwestern states such as Texas, California and New Mexico.
"It is making a difference in the lives of people who have been subject to battery as well as mental and physical cruelty," said Dan Kane, an INS spokesman in Washington.
The INS has a 10-person team in Vermont that considers the cases. Investigators don't require police reports, criminal charges, photographs or in-person interviews. There is no specific standard for what constitutes abuse. The abuse may occur outside this country.
Officials do require evidence of physical or mental abuse, that a marriage was legitimate, and that the abusing spouse was a U.S. citizen or a legal permanent resident, known as a green-card holder.
When an application is approved, a person is given a few years of permission to be in the United States, pending the outcome of a green-card application.
But provided a person meets moral, legal and medical standards to live here permanently, green cards have long been all but automatic for immigrants marrying U.S. citizens or green-card holders. And that is some of the power in these marriages.
Before the law, an immigrant's spouse had to apply for a green card on his or her behalf.
Officials concede the law could draw people trying to fake abuse to get a green card, but they contend the screening process is rigid enough to catch most.
In fact, 3,562 applications, or about 22 percent of the total, have been denied in the program's first five years, including 853 in 2001.
Gail Pendleton, associate director of the National Immigration Project for the National Lawyers Guild, said she was involved in about 1,000 abuse applications last year.
She praised the INS' handling of the law, saying the agency has shown dedication at the highest levels to making it work, but added that many INS officers remain "extremely antagonistic" when it comes to abuse cases. More education is needed, she said.
On a recent weekday, a San Antonio woman wearing dark glasses to hide her identity on a Spanish-language talk show based in Miami told of being battered, even drugged and kidnapped by her husband, believed to be a U.S. citizen.
Marta Susana, host of the show, which was dedicated to immigration problems, asked another guest, San Antonio lawyer Joseph DeMott, if he would help.
He said he would help for free.
"This is a tremendous remedy for people being abused. They don't have to put up with this abuse," DeMott said back at his office. "We keep plenty of Kleenex handy for when they start talking."
Sitting in a San Antonio coffee shop last week, the woman said she lives in fear, never goes anywhere alone and often wonders if she will run into her ex-husband, who wouldn't let her drive, have friends or leave the house.
He would bruise her chest and legs, where no one would see her injuries, she said. When he would leave, he would yank out the phone cords and stuff them in his pockets
"I'm still scared that he'll find me," she said quietly, as she sat beside her sister, "but I have to continue living my life."
NOW says president's nominee "inappropriate" for U.S. attorney
Advocate, The (Baton Rouge, LA)
February 2, 2002
https://infoweb.newsbank.com/
President Bush should change his nominee for U.S. attorney in New Orleans because of allegations that he abused women, the president of the National Organization for Women said Friday.
"I think it is completely inappropriate to appoint a federal prosecutor in charge of enforcing the Violence Against Women Act when there are credible allegations of violence against him," Kim Gandy said in a telephone interview from Washington, D.C. "It would do a terrible disservice to battered women throughout the Eastern District of Louisiana."
Gandy, an attorney in New Orleans before her election as president of NOW, said she will lead a protest against Fred Heebe's nomination today outside the hotel where the Washington Mardi Gras Ball is held.
Heebe said Thursday that the allegations by an ex-wife and a former girlfriend are "outrageous lies," and he will not withdraw.
Gandy said she heard the women's accounts and found them "extremely credible."
"Their compelling stories not only warrant the attention of the FBI, but the concern of the president, who called for 'respect for women' in his address on Tuesday," she said.
A news release from NOW said Gandy hopes "to persuade the movers and shakers of Louisiana to join her in opposing Heebe's nomination." Members of NOW's national board, meeting in Washington, will join the protest, according to the announcement.
Heebe said Thursday that "there will be no surrender."Gandy would not guess whether the Senate Judiciary Committee will send the nomination to the Senate floor. But, she said, the Violence Against Women Act was passed almost unanimously, with strong support from both parties. The law, part of the 1994 crime bill, was reauthorized last year as part of a package passed 371-1 in the House, 95-0 in the Senate.
Heebe's attorney said the allegations were made up to derail his nomination. If it is approved, he would be the chief federal prosecutor for the 13 parishes in the New Orleans area: Assumption, Jefferson, Lafourche, Orleans, Plaquemines, St. Bernard, St. Charles, St. James, St. John, St. Tammany, Tangipahoa, Terrebonne and Washington.
At a news conference Thursday, Gina Herbert, 40, said she had a three-year relationship with Heebe during the mid-1990s. With her was Nanci Easterling, who was briefly married to Heebe in 1984.
Both described Heebe, 48, as an alcoholic and accused him of mental and physical abuse. Neither called police after the alleged attacks.
Herbert said that at one point during their relationship, Heebe threw her to the floor, jumped on her back and pushed her face into the carpet. "I thought he was trying to kill me," she said.
Herbert also made the allegations in a letter sent Wednesday to Sens. John Breaux and Mary Landrieu, urging the Louisiana Democrats to oppose Heebe's appointment.
In December, Easterling also asked the senators to oppose the nomination, claiming physical and mental abuse during her brief marriage.
Heebe's attorney, Peter Butler, showed reporters a document Easterling signed after her divorce in which she said allegations of abuse made during divorce proceedings were "without merit."Butler and Gov. Mike Foster both said the FBI has investigated the allegations.
Heebe is the son of a federal judge in New Orleans and is now married to a state lawmaker.
FBI clears Heebe in allegations
Abuse accusations unsubstantiated
Advocate, The (Baton Rouge, LA)
February 3, 2002
https://infoweb.newsbank.com/
Acknowledging there is a previously undisclosed allegation of abuse, a Louisiana Republican congressman said Saturday the FBI has completed an expanded investigation of the U.S. Attorney-designee of Fred Heebe of New Orleans and cleared Heebe of all allegations that he abused three women.
"It's a clean slate," said U.S. Rep. Billy Tauzin, R-Chackbay. In addition to re-investigating the allegations made by an ex-wife and a former girlfriend of Heebe's, the FBI "investigated this so-called third woman and has filed a report back to the White House," Tauzin said.
Heebe's attorney, Peter Butler Sr. of New Orleans, said he has no knowledge of a third accuser. Butler said, "It wouldn't be a surprise if Micki Easterling told another woman to testify ... Mrs. Easterling might have them coming out of the woodwork."
The reference is to the mother of Heebe's former wife, Nanci Easterling, whom he was briefly married to in 1984. The Heebe camp has accused Micki Easterling of indirect connections to a convicted felon whose case could be handled by the new U.S. Attorney in New Orleans.
Tauzin was asked about the number of accusers after Kim Gandy, president of the National Organization for Women, told reporters that she believes there is a third accuser.
Tauzin urged President Bush to restart the paperwork process that is required to move Heebe's stalled nomination through the Senate.
"If the FBI says there is nothing to these charges, they (the White House) ought to stand by him and process him," Tauzin said.
However, according to the office of U.S. Sen. John Breaux, D-La., the White House will move slowly.
Breaux also said Saturday that the FBI has submitted its expanded report on Heebe to the White House. The senator said neither the White House nor the FBI has told him the contents of the report, and he has not been contacted by a third accuser.
Fred Hatfield, Breaux's chief of staff, said that he spoke with a White House counsel Friday night about the Heebe nomination, and was told the White House is doing its own investigation.
"I don't get the sense this is coming (to the Senate) anytime soon," Hatfield said. "He (the counsel) would not comment on the FBI investigation, but he said 'I can tell you we're not done with our own vetting yet, our own background check.' "
Tauzin and Breaux commented as the Heebe controversy reached the Washington Mardi Gras Ball. As the two lawmakers were being interviewed inside the Washington Hilton Hotel, about two-dozen members of the NOW marched on a sidewalk outside. They carried signs protesting the Heebe nomination and chanted anti-Heebe slogans through a bullhorn.Gandy, formerly a New Orleans-based attorney, said she will discuss the case Tuesday afternoon with Senate Judiciary Chairman Patrick Leahy, D-Vermont."
This is a matter that's the responsibility of the entire Senate, not just Louisiana," Gandy said. ".. The job he (Heebe) has been nominated for is the chief enforcer of the Violence Against Women Act."
Heebe and his attorney have said the abuse charges are "lies", and Heebe has said he will not abandon his pursuit of the federal prosecutor's job. They characterize one accuser as a disgruntled ex-wife who is still bitter after a divorce proceeding.
At a New Orleans press conference last week, Heebe's ex-wife, Nanci Easterling, and a former girlfriend, Gina Herbert, described Heebe as an alcoholic and accused him of mental and physical abuse.
Easterling and Herbert also have made the charges in letters to Breaux and U.S. Sen. Mary Landrieu, D-La.Gov. Mike Foster is Heebe's chief sponsor. He has called Heebe "an honest man," and xhas said that Heebe is the victim of a slander campaign run by supporters of other candidates for the job.
At Foster's urging, a "patronage committee" of Louisiana Republicans put Heebe's name at the top of a four-man list of candidates sent to the president.Bush announced in November that Heebe was his choice. However, the White House has not sent the Senate Judiciary Committee the FBI background material required to move the nomination through the Senate.
Breaux said that he will not take a position on Heebe's nomination without a formal submission of the paperwork. "From my perspective, we do not have a nominee. I am not going to get into this until we have a nominee," he said.Landrieu previously has said that she probably would be guided by the FBI's findings.
On Saturday, Landrieu said that she has read the letters from Easterling and Herbert. "They are very troublesome... It is pretty serious," she said. "...I will take this under very serious consideration, and that is what the FBI background check is all about."
Tauzin said that, if the abuse charges were accurate, "neither I, nor the governor, nor any of this group (the GOP patronage committee) would be supporting this candidate."
"Everytime, they (the FBI) conduct an investigation, there is further evidence that there's a conspiracy of slander," Tauzin said. "There may be some obstruction of justice going on. If that's true, maybe the FBI ought to look at that."
Tauzin then added "there's a fine line everybody's got to walk", between threatening to investigate for obstruction-of-justice and scaring away witnesses who may have information to share in a federal investigation of the nominee.
Constantine Georges, an Assistant U.S. Attorney in New Orleans, was second on the patronage committee's list. However, Foster opposes Georges, and the governor's allies have blamed Georges' supporters, among others, for the campaign against Heebe.
In a recent interview, shipbuilder Boyse Bollinger -- another GOP patronage committee member - said the committee supports Heebe and had seen no signs that the White House was abandoning him. But if the Heebe nomination failed, the President should go to the next name on the list, Bollinger said.Tauzin vowed that won't happen. "We don't have a second candidate," he said. "I can promise you, I won't support anyone who's behind this character assassination attempt, if that's what it is."
If Heebe's nomination is approved, he would be the chief federal prosecutor for the 13 parishes in the New Orleans area: Assumption, Jefferson, Lafourche, Orleans, Plaquemines, St. Bernard, St. Charles, St. James, St. John, St. Tammany, Tangipahoa, Terrebonne and Washington.
Heebe is the son of a federal judge in New Orleans and is married to a state lawmaker.
APPEALS COURT NOMINEE TARGETED
GROUPS OPPOSE PICK FOR 3RD CIRCUIT SEAT
Pittsburgh Post-Gazette (PA)
February 9, 2002
https://infoweb.newsbank.com/
A Washington-based coalition of 27 national environmental, women's, civil rights and disability rights groups is mounting a campaign against President Bush's nomination of Western Pennsylvania's Chief U.S. District Judge D. Brooks Smith to the 3rd U.S. Circuit Court of Appeals.
Smith, 50, of Altoona, who was nominated Sept. 10, is being criticized for past rulings and comments, for taking trips paid for by companies and interest groups, and for being overruled on appeal in a number of high-profile cases.
The coalition, called the Community Rights Counsel, has stated its concerns in letters to Senate Judiciary Committee members, who are preparing for a hearing on Smith's nomination.
The coalition represents groups such as The Wilderness Society, the American Association of People with Disabilities, People for the American Way, the Coal Alliance, the Alliance for Justice, the National Abortion Rights League, Defenders of Wildlife, Physicians for Social Responsibility, Friends of the Earth, the Feminist Majority, the Public Interest Law Center and the Natural Resources Defense Council.
Smith's staff said he would not respond to the coalition's criticisms.
The coalition charged that between 1999 and 2000, he spent "nearly three months at luxury resorts and dude ranches on trips funded by corporations and special interests with a stake in federal court litigation."
It said Smith's trips were worth "well over $30,000" and permitted him to "play golf and take horseback rides through Yellowstone Park with corporate CEOs, right-wing ideologues and free-market legal theorists."
After studying federal judges' financial disclosure forms filed between 1992 and 2000, the coalition asserted that Smith "has attended more corporate-sponsored seminars than almost any other federal judge in America." It said he took 12 trips sponsored by the Foundation for Research on Economics and the Environment and George Mason's Law and Economics Center held at places such as Amelia Island, Fla., Westward Look Resort in Tucson, Ariz., and Gallatin Gateway Inn in Bozeman, Mont.
Such trips are legal but controversial. Two Democratic senators, John Kerry of Massachusetts and Russ Feingold of Wisconsin, have introduced a bill to ban sponsored trips for federal judges. Supporting such legislation, The Washington Post editorialized that when judges take education vacations "on the dime of private groups, they do so at the expense of the Judiciary's reputation for impartiality, even if not the impartiality itself."
The coalition also criticized some of Smith's rulings.
In Metzgar vs. Playskool, Smith dismissed a lawsuit by parents of a 15-month-old child who died choking on a Playskool block. He noted that the toy carried a warning label and that other children had choked on similar toys, so there was no reason to fault Playskool. A 3rd Circuit appeal panel ruled that Smith was wrong on all counts and returned the case to him for trial.
The coalition also criticized Smith for accepting a plea bargain in U.S. vs. Action Mining that limited damages the company had to pay for sending mine waste through a pipe that polluted the Casselman River in Maryland. It said the $50,000 penalty accepted was too low, representing "one-tenth the maximum [fine] and just 1 percent of the profit realized by Action."
The coalition also cited a June 29, 1993, speech Smith made to the Pittsburgh Federalist Society, in which he denounced the so-called "principled federalism" expounded by Senate Judiciary Committee member Joe Biden, D-Del. Smith called Biden's theory on federal courts' jurisdictional limits "nothing more than another euphemism for the political expediency that has animated the politics of both liberals and conservatives, Republicans and Democrats, for the last two decades."
Smith criticized the then-pending Violence Against Women Act, passed in 1994, which bars anyone under a restraining order from owning a gun. Biden, a key sponsor, said on July 26, 2000, that "securing its passage had been my highest priority for three sessions of Congress."
But Smith argued that the law was beyond Congress' scope. "Domestic violence, of course, deserves our strongest reprehension, but what special quality makes it an important federal interest?" he asked.
In 2000, the U.S. Supreme Court, in a 5-4 decision, voided a provision of the law that had given women the right to sue their attackers in federal court. Biden called the high court's decision "wrongheaded" and part of a trend "in which this Supreme Court is seizing the power to make important social decisions that, under our constitutional system of government, are properly made by elected representatives who answer to the people, unlike the court."
The Senate Judiciary Committee is in the middle of several acrimonious debates over judicial nominees. Mississippi U.S. District Judge Charles Pickering, 64, a friend of Senate GOP leader Trent Lott of Mississippi who has been nominated for the 5th Circuit Court of Appeals, is drawing fire from some of the same civil rights and women's groups that are criticizing Smith.
Who will be chief justice?
Bush may pick next court leader
Charleston Gazette (WV)
February 17, 2002
https://infoweb.newsbank.com/
WASHINGTON - When Supreme Court Justice Anthony Kennedy walked into a District of Columbia magnet school last month to talk to students about freedom, he said he was hoping they would gain a greater understanding of democracy.
But his key role in unveiling the "Dialogue on Freedom" initiative, with help from the American Bar Association and first lady Laura Bush, prompted some court watchers to say he also may have something else on his mind.
"I'm sure he wants to be chief justice," said one observer.
Not that Chief Justice William Rehnquist has announced his retirement, but most agree that he is likely to do so this summer or next. With such a closely divided court, that prospect already has public interest groups, lawyers and professors speculating on nominees and anxious over what all predict will be a huge confirmation battle.
"This is going to be one of the most dramatic moments in American history," Ralph Neas, president of People for the American Way, said of the future confirmation hearings.
Indeed, the bitter battle that Neas' group has spearheaded over Charles Pickering, one of Bush's federal appeals court nominees, is only a hint of what's to come when he seeks to fill a vacancy on the high court, legal observers say. The court now is generally divided 5-4 on issues such as race, religion and the role of government, and Bush is poised to nominate up to three justices, including the chief justice, as aging ones retire.
Rehnquist, 77, is a likely candidate for retirement this year or next, as is Justice Sandra Day O'Connor, although she said recently she would not step down this year. Justice John Paul Stevens, the court's most liberal member and, at 81, its oldest, also could retire - particularly since Democrats now control the Senate and, Neas vows, would not confirm an ardent conservative to replace him.
But the chief's spot has grabbed the interest of many. To be sure, the chief justice has just one vote, but he also has the important duty of assigning opinions when he is in the majority. That power can help shape how broadly or narrowly the decision is written. What's more, the chief is the administrator of a branch of government.
As such, filling that post could present the biggest problem for Bush, particularly if Rehnquist is the only justice to step down. The Senate historically has placed greater emphasis on confirming the chief justice than associate justices, and Democratic leaders already have indicated they will not make it easy for Bush to fill a vacancy.
Conservative groups, aware of the looming battle, are becoming increasingly critical of the administration's approach. They say the administration is not doing enough to get ready for the fight and are particularly upset at Bush's refusal, despite requests, to mention the issue of judicial appointments in his State of the Union address.
Further complicating matters is that there is no obvious choice to take Rehnquist's place. Opponents on the left and the right have raised flags about several of those believed to be contenders, including Kennedy and the current White House counsel, Alberto R. Gonzales. Groups such as Neas' say they would love to take on two other possible nominees, conservative federal appeals court judges J. Harvie Wilkinson III and J. Michael Luttig.
Some have said Kennedy's statesman-like behavior in recent weeks has the cast of a potential chief justice candidate.
That's not to question his sincerity with the "Dialogue on Freedom" initiative. Kennedy, 65, has had a longstanding interest in promoting the virtues of the legal system to young people.
"I would think if an opening occurs, he certainly is one of the people who would be considered seriously," said Jesse Choper, a law professor at the University of California at Berkeley. Of the Democratic-controlled Senate, Choper said: "They'd be hard-pressed to beat him."
Elevating a current justice could siphon attention away from the nominee who would take his place as associate justice. That's what happened in 1986, when President Reagan sought to elevate Rehnquist as chief and nominated Antonin Scalia as associate justice. The Senate spent all its time on the chief's nomination, while Scalia - one of the court's most ardent conservatives - skated through unanimously.
That said, "Chief Justice Kennedy" is an extremely unlikely scenario. His nomination would infuriate the far right, which was outraged by his refusal in 1992 to overturn Roe v. Wade, as well as other decisions it perceives as liberal, such as one that blocked clergy from praying at school graduation ceremonies and another that invalidated a Colorado anti-gay rights statute.
"A lot of the president's conservative base would strongly oppose elevating Kennedy," said Tom Jipping, the director of the Center for Law and Democracy at the Free Congress Foundation.
Moreover, elevating Kennedy to chief would give the left ample fodder as well. He joined the court's three most conservative members two years ago, for example, in dissenting from a decision that struck down state efforts to ban so-called partial-birth abortions.
But his role in Bush v. Gore, a decision the White House would prefer the American people forget, could be the most damaging for his prospects. Any confirmation hearing for Kennedy (or O'Connor, if she were tapped for the chief's post) would resurrect the 2000 presidential election. Kennedy and O'Connor are considered the architects of the 5-4 opinion that stopped the vote recounts in Florida and handed the election to Bush.
O'Connor, who will be 72 next month, would have those problems as well as her age working against her, said David Yalof, a professor of political science at the University of Connecticut. Bush likely would prefer a younger nominee who would serve for more than a few years, he said.
The other two conservatives on the court, Scalia and Clarence Thomas, are considered simply too conservative. As such, most observers predict that Bush will have little choice but to look outside the court for its next chief, just as President Eisenhower did in 1953 and President Nixon did in 1969.
- both would overturn Roe v. Wade, for example - to be confirmed by the Democratic-controlled Senate, Neas, Yalof, Choper and others said.
As such, most observers predict that Bush will have little choice but to look outside the court for its next chief, just as President Eisenhower did in 1953 with Earl Warren, then California governor, and President Nixon did in 1969 with Warren Burger, then on the U.S. Court of Appeals for the D.C. Circuit.
"We're looking at a moment where the current president's best prospects for chief justice lie outside the court," said Yalof, author of the book, "Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees."
Yalof and other court watchers, such as Choper, say they believe Bush would like to name the first Hispanic to the court. Most say White House Counsel Alberto R. Gonzales is the frontrunner, certainly for associate justice, because he has the confidence of Bush and may not have the damaging paper trails of other potential nominees.
The latter likely would do in the other leading Hispanic candidate, Emilio Garza, a judge on the U.S. Court of Appeals for the 5th Circuit. Garza has openly suggested his opposition to Roe, a decision he said is "inimical to the Constitution."
Gonzales could be a controversial choice, however, particularly for chief. He served on the Texas Supreme Court just 23 months before assuming his current position, and he could be viewed as too political, Neas and others said. Moreover, the far right views him suspiciously, noting that while on the Texas Supreme Court he joined a majority decision allowing some minors to get abortions without parental notification.
But Yalof said he thought Gonzales "had a lot to offer for chief" because it is an administrative post.
"He's currently in the administration and is someone the president would feel comfortable with, not simply rendering decisions, but running a branch of government," Yalof said.
Bush may believe he could get a more predictable conservative as chief, since the appointment would not move the court to the right. Rehnquist, one of the court's most conservative members, would overturn Roe and has led a revolution of sorts on the court by scaling back congressional power and handing it to the states.
If so, Bush could turn to the U.S. Court of Appeals for the 4th Circuit, where Wilkinson and Luttig have established solid conservative reputations. Wilkinson, who turns 58 this year, is a former law professor at the University of Virginia and the chief judge of the circuit.
Luttig is a former Scalia clerk who worked to help get Thomas confirmed while working in the Justice Department. Philosophically, he is closer to Scalia and Thomas - the justices Bush said during in the campaign he most admired - than Wilkinson. He wrote the high-profile opinion, which the Supreme Court upheld, striking down a section of the federal Violence Against Women Act as beyond Congress' power.
Recently, however, the two have dramatically parted ways in several high-profile cases, with Luttig, who will be 48 this year, all but accusing Wilkinson of being a faux conservative.
"Many people think Luttig has blessed Wilkinson by making him seem like a moderate statesman," said one court observer.
In a recent high-profile school desegregation case, for example, Wilkinson joined with more liberal judges in refusing to hold a North Carolina school system liable for running a race-conscious magnet school. Wilkinson said the school couldn't be held liable because they had been under a court order to end segregation. But Luttig, in dissent, said Wilkinson "variously ignored and misunderstood" the law.
They also split ways in a high-profile case over the breadth of Congress' power to protect endangered species. Wilkinson wrote for the majority that the federal government had power to limit the taking of red wolves on private lands, a decision Luttig harshly criticized in dissent.
Wilkinson said Luttig's approach "would place in peril the entire federal regulatory scheme for wildlife and natural resource conservation." The Supreme Court ultimately declined to review the case.
"Wilkinson is more in the mold of the gentle conservative, whereas Luttig is more in-your-face," said one lawyer who frequently practices in the 4th Circuit. "I think Wilkinson tries to be more scholarly, whereas Luttig has much more of a rubber-hits-the-road kind of approach."
That's not to say Wilkinson is not conservative. He wrote a majority opinion, for example, upholding the Clinton administration's "Don't ask, don't tell policy" that excluded acknowledged homosexuals from the military.
"One can trace the differences and nuances between Luttig and Wilkinson, but they are both conservative, no question about that," said A.E. Dick Howard, a law professor at the University of Virginia. "I would guess if either Luttig or Wilkinson is on the Supreme Court, their voting patterns would not be that different."
Conservative groups acknowledge that either could be difficult to confirm, which could prompt Bush to name a stealth candidate, like Judge Samuel A. Alioto Jr., of the U.S. Court of Appeals for the 3rd Circuit. They put the blame partly on Bush and suggest the administration has ceded control of the debate on the issue to the Democrats.
"I believe the president, before any Supreme Court vacancy, needs to provide sustained public leadership on judicial appointments, generally," Jipping said. "If the administration is going to wait until there's a Supreme Court vacancy, they're going to lose. Or they're going to feel compelled to nominate someone who won't be worth it."
ALTOONA JUDGE FAILS TO SATISFY BIDEN'S CONCERNS
LACK OF CANDIDNESS COULD SPUR FILIBUSTER
Pittsburgh Post-Gazette (PA)
February 27, 2002
https://infoweb.newsbank.com/
District Court Judge D. Brooks Smith of Altoona, fighting hard to win Senate confirmation as President Bush's nominee for the 3rd U.S. Circuit Court of Appeals, still faces a barrage of questions from Sen. Joseph Biden, who warned yesterday that he would filibuster against the judge on the Senate floor if Smith were not "candid" in his replies.
Time ran out at yesterday's hearing for Smith before the Senate Judiciary Committee, as several senators who said they still had questions for the nominee had to hasten to the floor for votes. Smith's hearing finally was adjourned when Biden, D-Del., was delayed, and Smith was told that he would get a batch of written questions next Tuesday. But the impact of answers to written questions is rarely as great as an open hearing's give-and-take between lawmakers and witnesses.
Pennsylvania's two Republican senators, Arlen Specter and Rick Santorum, both spoke strongly on behalf of Smith, 50, whom President Ronald Reagan named to the District Court in 1988, when the nominee was 36. Santorum said Smith has "incredible support" from an "incredible array" of people," including 17 members of Congress. He said "national interest groups" -- representing environmental, civil rights and women's issues -- were "weighing in" to try to discredit the judge.
Smith was accompanied by a phalanx of supporters, including nearly a dozen lawyers. Among the group were Timothy Lewis, a former 3rd Circuit judge who returned to private practice in 1999, quitting the seat that Smith has been nominated to fill; Duquesne University law professor Ken Gormley; and Reps. Melissa Hart, R-Bradford Woods, and William Coyne, D-Oakland.
The concerns raised yesterday over Smith's nomination were from Democrats and focused on three areas: His legal seminar attendance at resorts, judicial philosophy and his delay in recusing himself in a controversial case.
Sen. Russell Feingold, D-Wis., characterized the 12 seminars at resorts around the country that Smith attended as intended to influence judges in cases affecting large corporations. Feingold said only four other federal judges have attended more such seminars.
Smith responded that it is his job to hear "different points of view on a daily basis; it's what we're about. I can hear these points of view without being influenced."
When Feingold asked why Smith hadn't reported the seminars' value, which were estimated to be worth about $30,000, the judge said it was his understanding that he didn't have to. He said he had made "more than one phone call" to try to discover the seminars' funding and learned that they came from `dead men's [foundation] money.' "
When Feingold noted that Bethlehem Steel had been a sponsor of at least one and that Smith had presided in several cases involving that company, the judge said he hadn't been aware of that sponsorship. But Smith sought to assure the committee that in the future, "until I can be satisfied that funding is not a problem, I won't attend" such seminars.
Biden asked about a 1993 speech that Smith gave to the Pittsburgh Federalist Society, in which Smith raised constitutional questions about the Violence Against Women Act. The measure, which the senator had sponsored, gave women the right to seek federal court redress under civil rights laws. The Supreme Court later struck down part of the law.
In his speech, Smith had laid out a view of federalism asserting that if the Constitution doesn't specifically grant a power to the federal government, Congress can't pass a law dealing with it. Some critics suggest that if such a view were to prevail on the federal bench, it would negate many civil rights and environmental laws.
Biden said he accepted Specter's word that Smith has the temperament and character for the appellate job, but he still had other questions for Smith. Biden said that if he felt Smith were not being candid or advanced the argument that he couldn't discuss issues that might come before him, "I'll filibuster on the floor of the Senate" to defeat Smith, even though he had "never taken that step in my life." Biden and Smith appeared to differ sharply in their view of states rights vs. federal rights.
Several senators asked Smith why he hadn't recused himself sooner in a case involving a U.S. Securities and Exchange Commission's suit against former Altoona investor J. Gardner Black, now serving 41 months in jail for defrauding 75 school districts through risky investments. Black's bank, Mid-State, which employed Smith's wife and in which the couple had at least $100,000 of stock, was involved in the case, though not a direct party. Still, the bank later had to pay a settlement of $51 million to the districts.
Because it was not a party to the suit, Smith said, he saw no sufficient reason to recuse himself under federal law until he saw a report by Dick Thornburgh, the case's trustee and a former Pennsylvania governor and U.S. attorney general. Thornburgh said the bank might be more involved in the case than it had seemed at first. Smith said he had issued rulings in the case for a month, some of which seemed to favor the bank, "with the belief that Mid-State Bank was nothing more than a depository."
Four days after receiving Thornburgh's report, he recused himself, citing his wife's employment but not his own financial interest. The law does not require judges to give a reason for stepping aside.
Later, Smith also presided for about five months in a criminal case the federal government brought against Black until the defendant himself requested that the judge recuse himself.
Smith's supporters maintain that he acted properly. But under continued Feingold questioning, Smith himself said, "With the benefit of hindsight, I wish I had recused earlier."
Specter noted that of 5,298 cases Smith has handled as a federal judge, only 526 were appealed and 53 reversed -- just about a 10 percent reversal rate. That, he said approvingly, is less than the 11.7 percent rate for the 3rd Circuit as a whole.
Justice Impact Evaluations
One Byrne Evaluation Was Rigorous - All Reviewed Violence Against Women Office Evaluations Were Problematic
US General Accounting Office
March 07, 2002
Senator lectures Supreme Court chief justice for overriding Congress
Associated Press Archive
March 13, 2002
https://infoweb.newsbank.com/
The Supreme Court is too quick to override Congress and is taking more power for itself than the framers of the Constitution intended, a Democratic senator told Chief Justice William H. Rehnquist and other judges Wednesday.
"As someone elected by the citizens of my state to legislate, I am profoundly troubled by the extent to which the judiciary has abrogated Congress' powers in the past few years," Sen. Charles Schumer, D-N.Y., said during remarks at the Supreme Court.
Schumer, a liberal-leaning legislator who is frequently at odds with the conservative tilt of the high court, listed several recent cases in which the Supreme Court has struck down laws passed by Congress.
He pointed to so-called states' rights cases, in which the court found that Congress had not adequately justified its own power to make certain rules or had run roughshod over state powers.
Most of those cases were decided by 5-4 votes, with Rehnquist and the other court conservatives in the majority. Examples include a ruling striking down a major part of the Violence Against Women Act and decisions limiting the reach of the Americans With Disabilities Act.
"Generally, our actions are not attempts to violate or weaken the states' authority -- they're the product of what we were elected to do," Schumer told federal judges gathered for a meeting of the policy-making Judicial Conference. Rehnquist heads the group, which meets at the high court.
The meeting was closed to the press and public, but a copy of Schumer's remarks was released afterward.
"The fundamental role of the Congress is to make laws," Schumer told the judges. "The executive (branch) implements them. And you are nominated and confirmed to interpret and apply those laws.
"That is the balance the framers struck and it's a good one ... But now, like at no time in our past, we are seeing a finger on the scale that is subtly but surely altering this balance of power between Congress and the courts."
U.S. District Judge Charles H. Haddon, speaking for the judges' group afterward, said Schumer's remarks were received politely.
"We took what he said to heart," Haddon said.
CONFIRM JUDGE SMITH
ONE LAPSE CAN'T OUTWEIGH HIS QUALIFICATIONS
Pittsburgh Post-Gazette (PA)
March 13, 2002
https://infoweb.newsbank.com/
Like blind men describing the elephant, supporters and detractors of D. Brooks Smith, President Bush's nominee for a seat on the 3rd U.S. Circuit Court of Appeals, offer irreconcilable impressions of the jurist from Altoona.
To Judge Smith's supporters, especially lawyers who have practiced before him, the chief judge of U.S. District Court for Western Pennsylvania is intelligent, fair-minded and hardworking.
To an array of liberal interest groups, however, Judge Smith is a clone of Antonin Scalia and Robert Bork; a promiscuous participant in junkets that have tilted his decision-making in the direction of the well-off; and, last and most serious, a judge who flouted federal ethics laws in taking too long to remove himself from a case that posed at least the appearance of a conflict of interest.
*
Who's right? As members of the Senate Judiciary Committee have been hearing for the past several weeks, Judge Smith's hometown supporters have the better of the argument.
We say this even though we believe Judge Smith made a serious mistake in taking so long to withdraw from not one but two cases growing out of the activities of John Gardner Black, an investment adviser who defrauded a number of Pennsylvania school districts and is now in prison.
Judge Smith's behavior in the Black matter was brought to public attention by the Community Rights Counsel, a pro-land use advocacy group that previously found fault with the judge for participating in educational seminars -- "junkets" is the pejorative term -- at locations with golf courses, horseback riding and other amenities. Though some senators have proposed legislation barring federal judges from attending such programs, at present they are legal.
At his hearing before the Judiciary Committee, Judge Smith admitted that in hindsight he wishes he had recused himself earlier from cases in which the Mid-State Bank, his wife's employer and an institution in which he holds stock, had been a depository for funds given to John Gardner Black. The judge also told the committee that he would refrain from participating in seminars "until I can be satisfied that funding is not a problem."
If that was all that was known about Judge Smith, one might wonder whether the judge underwent a "confirmation conversion." But lawyers in Western Pennsylvania -- Republican and Democratic, liberal and conservative -- do know more about Judge Smith. With virtual unanimity, they insist that his years of distinguished judicial service entitle him to the benefit of the doubt.
We agree. Although his critics hit on a legitimate issue in his slowness to recuse himself in the John Gardner Black cases, the rest of their argument against the judge rests on unwarranted assumptions about his legal philosophy, a selective reading of the record and a willingness to believe the worst about a judge nominated by George W. Bush.
For example, in faulting Judge Smith for attending seminars sponsored by foundations with business connections, the Community Rights Counsel snidely asserts that "Judge Smith's opinions indicate that the corporate money for these trips is well spent." The natural inference is that Judge Smith is either gullible or capable of being bought, propositions lawyers who know him consider outrageous.
One Democrat in particular who might make trouble for Judge Smith is Sen. Joseph Biden of Delaware (one of the states over which the 3rd Circuit has jurisdiction). Sen. Biden has threatened to filibuster the nomination if Judge Smith was unresponsive to the senator's questions about the judge's view of the relationship between state and federal authority, an increasingly hot topic in federal courts.
In a 1993 speech, Judge Smith had the temerity to mention Sen. Biden's name in warning that a bill championed by the senator -- the so-called Violence Against Women Act -- violated federalism principles by nationalizing the problem of sexual violence. He ridiculed the suggestion by the bill's advocates that Congress could legislate in this area because "gender-motivated violence has a substantial or adverse effect on interstate commerce," which Congress is empowered to regulate.
Judge Smith wasn't the only commentator to look askance at this justification; this newspaper raised a similar concern. More to the point, in 2000 the U.S. Supreme Court agreed, holding that the law's authorization of lawsuits in sexual-violence cases lacked support in either Congress's authority to regulate interstate commerce or its power to enforce the Constitution's guarantee of "equal protection of the laws."
*
In fairness to Sen. Biden, there are conservative legal theorists who would roll back congressional authority so far that the Congress couldn't legislate against racial discrimination. But we don't think Judge Smith belongs in that camp. His 1993 speech, for all its criticism of congressional overreaching, explicitly drew a distinction between federal civil rights legislation, which was necessitated by the complicity of Southern states in institutionalized racial discrimination, and the Violence Against Women Act, which addressed a crime -- rape -- that is punished in every state.
No doubt Judge Smith is more conservative than a judge Al Gore might nominate to this position. But he is not an extremist, he is held in high regard by those who know him best and he has acknowledged that he should have recused himself earlier in the Black case. The Judiciary Committee, Sen. Biden included, should approve his promotion to the appeals court.
Partisan bickering obscures real goal of finding best judges
Key West Citizen, The (FL)
March 18, 2002
https://infoweb.newsbank.com/
Members of the Senate Judiciary Committee should prepare for a political marathon. They'll need stamina to make sure the country gets the best federal judges.
The first fight is over. On Thursday the committee wisely rejected the nomination of Charles Pickering, a federal district judge whom President Bush wanted to place on the Court of Appeals for the Fifth Circuit in New Orleans. Pickering has a weak record on civil rights and employment law.
Still, the work continues. Senators cannot relax and let other troublesome nominees slide through.
Republicans have been increasing the pressure. Borrowing from Clarence Thomas, Senator Orrin Hatch of Utah said the scrutiny of Pickering amounted to a "lynching." Out of respect for a particularly vicious strain of American history, it must be said that Pickering is in little danger of being hunted by a mob and hung until dead. But senators who challenge other nominees may still be accused of lynchings or worse. All the nominees' records should be scrutinized.
There's Judge D. Brooks Smith, a federal district judge and Bush's nominee for the Third Circuit Court of Appeals in Philadelphia. His record includes a history of being reversed by higher courts on consumer and employment cases, and he has criticized the Violence Against Women Act.
Jeffrey Sutton is a lawyer and the nominee for the Sixth Circuit Court of Appeals in Cincinnati. He is also a states' rights advocate who told the Associated Press in 2000 that the Americans with Disabilities Act is not needed because states have laws banning discrimination. That's a harsh judgment about a law that has opened doors for many people.
When she was part of the Reagan administration, Carolyn Kuhl was a champion of restoring tax-exempt status to segregated schools such as Bob Jones University. But in 1983, in an 8-1 decision, the Supreme Court ruled that these schools are not entitled to tax-exempt status. Now Kuhl is a Los Angeles Superior Court judge and a nominee for the Ninth Circuit Court of Appeals.
Republicans say that delaying Bush's nominees is a nasty political game, even though this is what the Republicans did with President Clinton's nominees.
Bush could end the squabbling by consulting with Democrats on his nominees. This should be easy for Bush, who said during his campaign that he would shun partisan bickering and bring civility back to Washington.
Candidates with broad appeal can be found. In 2000 President Clinton made Judge Roger Gregory a temporary recess appointment to the Fourth Circuit in Richmond, Va. Last year Bush renominated Gregory, and he was confirmed by the Senate.
The country needs capable, independent judges, not political wars over their selection.
FEDERALIST SOCIETY SPEECH SUPPORTS THE CASE AGAINST JUDGE SMITH
Pittsburgh Post-Gazette (PA)
March 21, 2002
https://infoweb.newsbank.com/
The March 13 editorial "Confirm Judge D. Brooks Smith" recognized that Judge Smith's 1993 Federalist Society speech "ridiculed the suggestion by [Violence Against Women Act] advocates that Congress could legislate in this area because `gender-motivated violence has a substantial or adverse effect on interstate commerce,' which Congress is empowered to regulate." Unfortunately, you misleadingly conclude that "the U.S. Supreme Court agreed" with Judge Smith.
In fact, as U.S. Sen. Orrin Hatch, R-Utah, explained at a hearing on Judge Smith's nomination to the 3rd U.S. Circuit Court of Appeals, the Supreme Court struck down only the civil remedy portion of the act. Sen. Hatch said he "couldn't disagree more" with the speech's characterization of the act, that he is "firmly convinced that there is nothing unconstitutional in the remainder of the act," including its criminal provisions, and that Judge Smith's criticisms misconstrue "the nature and scope of the act."
These comments are particularly telling coming from Sen. Hatch, who supports Judge Smith's nomination to a lifetime appeals court seat. Judge Smith's speech bolsters the very serious concerns expressed by Earthjustice and 26 other national environmental, women's rights and disability rights groups that his rulings show a disturbing pattern of bias in favor of powerful interests and disregard for the rights and needs of ordinary Americans.
Judge Smith's call to roll back congressional authority does distinguish, as the editorial notes, "between federal civil rights legislation, which was necessitated by the complicity of Southern states in institutionalized racial discrimination, and the Violence Against Women Act." It is hard to see, however, how this "institutionalized racial discrimination" exception would preserve many federal safeguards, from the Americans With Disabilities Act to many environmental laws.
GLENN SUGAMELI
Senior Legislative Counsel
Earthjustice
Washington, D.C.
Editor's note: Earthjustice is a public interest environmental law firm
NOW FIGHTS JUDGE'S NOMINATION
PA. CHAPTER SAYS HE BELONGED TO BIASED GUN CLUB FOR 11 YEARS AFTER SAYING HE WOULD QUIT
Pittsburgh Post-Gazette (PA)
April 5, 2002
https://infoweb.newsbank.com/
The embattled nomination of U.S. District Judge D. Brooks Smith for the 3rd U.S. Circuit Court of Appeals gathered more opposition yesterday, as the Pennsylvania chapter of the National Organization for Women said he should not be confirmed.
Pennsylvania NOW President Kathy Miller said she was speaking on behalf of the group's 27,000 members in saying Smith was "unfit to serve as a federal appellate judge," in part because he continued to belong to a gun club that discriminated against women for 11 years after he promised the Senate that he would either change the club's policy barring women members or resign.
Smith, 50, of Altoona, said in a questionnaire last year that he had joined the men-only Spruce Creek Rod and Gun Club in 1982 largely out of sentiment because his grandfather had taught him to fish there when he was a child. The club, in Huntingdon County, is one of the most prestigious fishing clubs in Pennsylvania, boasting some of the state's best fly fishing, and has hosted presidents, including former President Jimmy Carter, who has written about it and made it his first vacation stop after leaving the White House.
Smith described it to the Senate in 1988 as a "rather small and rather informal and non-business-related type of club."
But although Smith told the Senate in 1988 before he was confirmed as a district judge that the code of ethics for judges "would require my resignation from the club" if it did not change its policy against admitting women, he admitted last year that he had not resigned until 1999.
Miller said in an interview, "He violated the judicial code of ethics and turned a blind eye to equality and justice for women."
The code of ethics for U.S. judges says that when a judge determines that an organization to which he belongs engages in "invidious discrimination," he or she may make an effort to have the organization discontinue such a practice. If the group fails to do that, within two years of the judge's first learning of the discriminatory practices, he or she "should resign immediately from the organization."
In a letter to Sen. Arlen Specter, R-Pa., a key sponsor of Smith for the Circuit Court, Miller wrote: "A significant barrier to the advancement of women in business and professional life is the discriminatory practices of private clubs, where business deals are often made and personal contacts valuable for business purposes, employment and professional advancement are formed. That is why the National Organization for Women has worked tirelessly for over 30 years to open up the memberships of such organizations."
She said her group also was upset that Smith had displayed "open hostility to the federal Violence Against Women Act," which he criticized in 1993 as federal encroachment on states' rights.
She said she hoped to meet with Specter to persuade him to reverse his endorsement of Smith. A Spector spokesman said he hadn't yet seen the letter. In a Senate Judiciary Committee hearing, Specter and Sen. Rick Santorum, R-Pa., were highly complimentary of Smith and brushed aside concerns expressed at that time by environmental and civil rights groups.
Since President Bush nominated Smith last September for the federal appellate court in Philadelphia, a number of Pittsburgh-area lawyers and judges have raced to his defense.
At the Senate Judiciary Committee hearing, a parade of lawyers called him a competent, fair-minded judge who has proved his credentials during 14 years on the federal bench.
A coalition of 27 environmental, civil rights and women's groups has charged that Smith has been too close to captains of industry, has issued a number of anti-environment rulings and has been reversed on appeal more times than is average for a federal judge.
Another criticism is that he twice failed to recuse himself fast enough in a case involving defrauded Pennsylvania school districts and a bank in which his wife was an officer and in which he had substantial funds.
The National Employment Lawyers Association said it opposes Smith's confirmation because he "has a disturbingly defense-oriented decisional record in many areas, including employment and civil rights cases, and interprets the law in ways that deny justice to individuals."
In accord with White House policy, judicial nominees do not discuss their nominations with reporters.
The Senate Judiciary Committee has not indicated when it will hold a vote on Smith. Most recently, the panel rejected by one vote the nomination of Mississippi District Judge Thomas J. Pickering for a seat on the 5th U.S. Circuit Court of Appeals on a strict party-line vote.
At a recent Dallas fund-raiser after Pickering's defeat, Bush vowed, "We've got to get good, conservative judges appointed to the bench and approved by the United States Senate."
Strange Justice
The liberal coalition that killed the Pickering nomination
National Review
April 8, 2002
https://infoweb.newsbank.com/
Late in the afternoon on Thursday, March 14, in a crowded hallway in the Dirksen Senate Office Building, Bruce Cohen, a top aide to Senate Judiciary Committee chairman Patrick Leahy, warmly greeted Elizabeth Cavendish, the legal director and general counsel of the National Abortion Rights Action League. "Thank you," said Cohen. "No, thank you!" said Cavendish, smiling and grasping Cohen's hand.
The cause of the smiling and thanking was the defeat, just minutes earlier, of the nomination of Charles Pickering to a place on the Fifth Circuit Court of Appeals. The committee's narrow Democratic majority, led by Leahy, killed the nomination on a 10-9 party-line vote. What made the exchange between Cohen and Cavendish noteworthy was that a good deal of the debate leading up to the vote had concerned the role that liberal groups such as NARAL, People for the American Way, NOW, the Alliance for Justice, and the Leadership Conference on Civil Rights were playing in the opposition to the Pickering nomination.
Republicans charged that the groups - which have formed a coalition to oppose Bush nominees - were working in close coordination with committee Democrats. "Judge Pickering has been viciously attacked by outside, left-wing, liberal groups," said Iowa Republican Charles Grassley, "and unfortunately, the Democratic party has been more than willing to do the bidding of these groups, here in the Senate, to oppose Judge Pickering."
It's a charge Republicans have made for years, at least since the days of the Robert Bork and Clarence Thomas confirmation battles. But for all their anger - and there was plenty in the room during the Pickering vote - Republicans have never really offered much evidence to support their allegations. Yes, groups in the coalition are powerful and well funded - People for the American Way's budget dwarfs those of the groups that tried to defend Pickering - but do they really exercise inordinate influence on the Democratic senators who cast votes on the Judiciary Committee? It's a question that is impossible to answer definitively - no senator would admit that he follows the coalition's lead - but a close look at events during the Pickering battle suggests that the groups did indeed work in particularly close collaboration with Democrats. Coalition members, especially People for the American Way, did much of the groundwork for the case against Pickering, acting as the de facto research arm of the committee's Democratic majority. More important, Democrats seemed unusually responsive to the coalition's concerns; throughout the confirmation fight, Leahy's actions, along with those of many of his colleagues, closely tracked demands made by the coalition.
In one instance, Democrats announced plans to hold a rare second hearing for Pickering almost immediately after the coalition demanded that they do so (and at a time when there was no grassroots outcry to delay the nomination or to give it unusually close scrutiny). In another instance, Democrats abandoned tentative plans to move ahead on Pickering's confirmation after the groups demanded the nomination be delayed again to allow them more time to delve into Pickering's record. And in yet a third instance, Democrats, when questioning Pickering, appear to have relied extensively on documents gathered by People for the American Way rather than the committee's own researchers.
Together, the coalition and their Democratic allies mounted an extraordinarily effective campaign against Pickering. While that fight is now over, the groups are preparing for bigger battles to come. Taking a detailed look at the coalition's involvement in the Pickering nomination provides a preview of what will happen in the coming confirmation conflicts over some of President Bush's most anticipated appellate-court nominees - as well as what is expected to be the biggest fight of all, the battle over the next justice named to the Supreme Court.
ACTIVATE THE 'ACTIVIST NETWORK'
President Bush nominated Pickering on May 25, 2001, making him among the administration's earliest choices for the federal bench. Pickering, who had served eleven years on the U.S. District Court in Mississippi, quickly completed his Senate questionnaire and FBI background check, and by July 23, 2001, the American Bar Association finished its detailed evaluation of his time on the bench, giving him its highest rating: "well qualified." Republicans had hoped that Leahy would hold a confirmation hearing for Pickering before the August recess, but none was scheduled. After Congress returned to work, the events of September 11 led to more delays. Finally, a hearing was set for October 18.
The nomination received almost no media attention; the papers were filled with news of the war on terrorism and, in the days before the hearing, the anthrax scare on Capitol Hill. But away from the headlines, People for the American Way had begun a campaign against the nomination. On October 15, the group sent out an urgent e-mail to its "activist network" headlined "controversial hearing should be postponed or extended." The e-mail said that "serious questions have been raised about [Pickering's] record on civil rights and reproductive choice." It said Pickering had "hundreds of published and unpublished opinions that should be reviewed," and that a hearing on October 18 would "make it difficult to fully research Judge Pickering's complete record." The e-mail urged liberal activists to get in touch with committee senators to "demand that Judge Pickering's hearing be postponed or extended to a second session."
Second hearings for judicial nominees are highly unusual, though not unprecedented. What was perhaps more unusual was for a group to suggest a second hearing before a first had been held. But the day after the People for the American Way e-mail, Leahy's staff laid the groundwork for a second session by asking Pickering to provide a list of all of his unpublished opinions as quickly as possible. The judge was astonished; his nomination had been announced nearly five months earlier, and Democrats had waited until two days before the confirmation hearing to make such a far-reaching request. Pickering responded that he had written opinions in about 1,100 cases - of which only about 95 were published - and could not possibly get them all together in two days.
The issue of unpublished opinions caught Republicans unaware. Judges decide when to publish their opinions; court guidelines suggest that judges like Pickering, whose cases do not often set legal precedents, limit the amount of opinions they publish to cases that either explore new legal ground or are particularly interesting in some way. That Pickering would publish 95 opinions in more than a decade on the bench seemed normal to his Republican supporters. The number was actually higher than that of some of President Clinton's nominees who had been confirmed to the U.S. circuit courts (one of them published 49 opinions in six years on the district court; another published 109 opinions in 14 years on the bench; a third published 76 cases in 16 years). Democrats had not raised objections then, but in Pickering's case Leahy wanted a list of everything. Pickering sent as much as he could to Leahy the next day, October 17.
On the 18th, the hearing was presided over by New York Democrat Charles Schumer, who had made news a few months earlier when he held a series of hearings designed to explore a new standard for evaluating judicial nominees on the basis of their ideology, regardless of their qualifications for the bench. The first issue Schumer brought up with Pickering was the unpublished opinions: "My opinion is 95 is a little too few to choose somebody for the court of appeals." Schumer told Pickering that he and Leahy had decided that there would be a second hearing, after a review of the unpublished opinions.
Republicans were dumbstruck. They had not seen the People for the American Way e-mail and did not know that Leahy and Schumer were even considering a second hearing, much less that they had agreed on one. Schumer's announcement was clearly an ominous development for Pickering, but at the time most Republicans did not believe Democrats intended to kill the nomination. "I just assumed that they were gonna beat him up a little bit for the outside groups," says one top aide.
After the first hearing, Democrats ratcheted up their requests for Pickering's unpublished opinions. First Leahy had asked for a list of all the opinions. Then, immediately after the hearing, he asked for the opinions themselves in cases involving abortion, the Voting Rights Act, the Fair Housing Act, equal protection, and a few other issues. Leahy later asked Pickering for unpublished opinions on cases involving the Violence Against Women Act, the Fourth Amendment, and the Eleventh Amendment. Finally, in a November 13 letter, Leahy asked for all of Pickering's unpublished opinions.
At that point, it would have been reasonable for Republicans to go into full emergency mode; but they still believed there was reason to remain cautiously confident that Pickering would be confirmed. During November and December, minority leader (and Pickering friend) Trent Lott spoke with Leahy on more than one occasion about the nomination, and, according to two key aides, Democrats gave Republican leaders reason to believe that Pickering would be approved before the Senate went home for its year-end recess.
But the coalition had other plans. On December 6, leaders of the Ms. Foundation for Women held a conference call with some other coalition leaders, including representatives from the Alliance for Justice, a close ally of People for the American Way. According to notes made of the call, an Alliance official told the group:
There will be a MAJOR fight in January over Charles Pickering . . . He has a troubling record on civil and reproductive rights. He wrote [the decision] to preserve the state senate as all-white. All integrated marriages are illegal. Wants to ban abortion. Has a record he wants to hide-he does not have a lot of published opinions . . . We can win on that fight, but it will be nasty and contentious.
When one highly placed GOP staffer heard about the conference call, he phoned a Leahy aide to see what was going on. Something had changed; this time, there was no talk of confirmation. "At that point, alarm bells are going off," recalls the staffer. "They're talking about going to jihad, and they haven't read the opinions yet."
As the days ticked down to the Senate's adjournment, Republicans realized there would be no quick second hearing, and no vote on Pickering before Congress went home for the holidays. What the GOP did not know was that while Democrats on the Judiciary Committee focused on the unpublished opinions-and found little to use against the judge-researchers for People for the American Way were preparing to take the Pickering fight in a new direction.
DIALING FOR DOCUMENTS
Margaret Kinchen is the court reporter for the U.S. District Court for the Southern District of Mississippi, located in Hattiesburg. She handles requests for things like transcripts of trials, sentencing hearings, and other court proceedings. They are public documents, but anyone who wants to see them or get copies of them has to go through Kinchen to do it. She keeps records of who requests what.
On December 19, Judith Schaeffer, deputy legal director for People for the American Way, called Kinchen to request transcripts from two sentencing hearings in a celebrated Mississippi murder case tried in Pickering's courtroom. "She wanted them as fast as she could get them," recalls Kinchen, who e-mailed the documents to Schaeffer the same day.
When Kinchen returned to her office the day after New Year's, there was a message from Schaeffer wanting more transcripts. Then there were calls on January 7 and January 8: requests for still more transcripts, most of them involving sentencing hearings presided over by Pickering. On January 11, Schaeffer called again, wanting yet another transcript. Kinchen says the requests from People for the American Way were, up to that point, the only inquiries she received for Pickering-related documents - "They were the only group that asked," she says. Although one might have expected committee Democrats to request documents, given the intensity of their interest in Pickering's record, Kinchen says she did not receive any inquiries from them.
On January 24, People for the American Way president Ralph Neas held a press conference in Washington to release the group's report on Pickering's record. Although Neas had not earlier called for Pickering's defeat, at the news conference he launched an all-out attack on both Pickering and the Bush White House. "Achieving ideological domination of the federal judiciary is the top goal of right-wing activists inside and outside the Bush administration," Neas said, "and judges like Charles Pickering are the means to that end."
The report was a grab-bag of issues, all of which suggested that Pickering was an unreconstructed segregationist who was hostile to the rights of women, minorities, and the poor. The report criticized Pickering for a 1959 law-review note on Mississippi's interracial-marriage ban that Pickering wrote as a first-year law student; it accused Pickering of having had "contact" with Mississippi's racist Sovereignty Commission in the 1970s; it accused Pickering of being indifferent to equal voting rights; it said Pickering had a "troubling record of reversals in the Court of Appeals"; it said he was hostile to abortion rights; and it accused him of blurring the separation of church and state.
Republicans on the Judiciary Committee sent a staff member to the Neas press conference. But when the aide came back with a copy of the report, GOP aides simply did not take the charges very seriously. Most, if not all, of Neas's accusations seemed without merit, and many had been considered by the committee in 1990 when it unanimously approved Pickering's nomination to the district court. But what Republicans did not know was that the Neas report would have a profound effect on the Pickering battle, becoming, almost overnight, a blueprint for Democratic committee members' objections to the nomination.
Another thing Republicans did not know was that Neas's research project did not stop when the report was released. On January 29, Judith Schaeffer contacted Kinchen again to request transcripts from sentencing hearings in a case known as United States v. Swan. The case involved a cross burning in southern Mississippi in 1994, and although no one knew it at the time, Swan would ultimately become a critical issue in the Pickering fight. On January 30, one day after Schaeffer called Kinchen, Leahy wrote Pickering to inquire about the judge's actions "relating to the criminal case of United States v. Swan."
Pickering's second hearing was scheduled for February 7. When the judge appeared before the committee, Democratic questioning hewed closely to the lines established in the Neas report. The report had focused on Pickering's reversal rate; at the hearing, Democrat Charles Schumer focused on Pickering's reversal rate. The report focused on Pickering's decisions in employment-discrimination cases; Democrat Edward Kennedy covered that topic. The report focused on Pickering's "contact" with the Sovereignty Commission; Democrat Richard Durbin handled that. The report focused on Pickering's views on abortion; Democrats Dianne Feinstein and Maria Cantwell covered that. And the report focused on Pickering's views on habeas corpus; Leahy handled that. The only new ground covered in the hearing was the Swan case, which had not been in the Neas report (Schaeffer did not request the Swan transcripts until five days after the report was released, suggesting that People for the American Way did not know about the case before that time). At the hearing, North Carolina Democrat John Edwards interrogated Pickering about Swan, implying that Pickering had gone to unethical lengths to go easy on a white man convicted of burning a cross in the yard of a mixed-race couple.
A week after the hearing, on February 14, Democrat Joseph Biden sent Pickering a series of follow-up questions about Swan. The first question began, "According to court documents . . ." and went on to recount details about the case that were available only in the court documents that Margaret Kinchen had sent to People for the American Way. While it is not clear how Biden learned about the details of Swan, a source close to the senator says Biden's staff first heard of the case "around the time of the People for the American Way press conference" and later got documents on the case "from other committee staffers." On February 15, the day after Biden sent his questions and long after People for the American Way had already gotten the information, Leahy finally asked for a transcript of Swan. By then, the work had been done-not by the committee, but by People for the American Way.
POWERFUL - AND RICH
At each step of the way in the Pickering nomination, Republicans underestimated the nature of the threat that Pickering faced from committee Democrats and, perhaps just as important, from People for the American Way and the rest of the coalition. Unknown to GOP staffers, coalition researchers were far ahead of them-and Democrats, for that matter-as they dug into Pickering's record.
One of the reasons Republicans miscalculated the threat was that they knew little about the power and scope of People for the American Way. It is an extraordinarily rich and well-run organization - two organizations, actually, both of them tax-exempt under Internal Revenue Service rules. One, People for the American Way, is a so-called 501(c)(4) organization - named for the section of the IRS code that provides for such groups - that is legally allowed to engage in partisan political activity. The other, the People for the American Way Foundation, is a 501(c)(3) organization, which is allowed to receive tax-deductible donations and which is prohibited by law from engaging in partisan political work. To qualify as a 501(c)(3), groups like the People for the American Way Foundation have to state on their tax forms that they will not engage in any activity "to influence national, state, or local legislation, including any attempt to influence public opinion on a legislative matter or referendum."
Together, the two branches collect an impressive amount of money. According to tax records for the year 2000, People for the American Way took in $5,140,131 in contributions, while the People for the American Way Foundation took in $7,469,722 - for a total of $12,609,853 in one year alone. Much of that money came in large chunks from wealthy donors. In its 2000 return, the foundation listed anonymous individual donations of $540,000, of $432,488, of $314,058, of $250,000, and many more in the six-figure range (the law requires the foundation to list the donations, but not the names of the donors).
Even though the foundation is forbidden to engage in political lobbying, there appears to be significant overlap between the two arms of People for the American Way. Neas's salary, for example, is paid by both the main group and the foundation. In 2000, he received $79,556 in salary from People for the American Way, the political arm, and $119,335 from the People for the American Way Foundation, the non-partisan arm. The salary of People for the American Way's number-two officer, Carol Blum, was also divided between the two parts of the organization. (Officials of People for the American Way told National Review they were too busy to be interviewed for this article.)
While People for the American Way has an impressive bankroll, it was just one part of the anti-Pickering coalition. To its $12.6 million budget must be added the budgets of groups such as NARAL, NOW, the Alliance for Justice, the Leadership Conference on Civil Rights, the NAACP, and others - a total that might well approach $50 million.
The numbers point to a striking disparity in the ongoing battle over judicial nominations. On the pro-Republican side, there simply was no group fighting on behalf of Pickering that had anything approaching the coalition's resources. Yes, there are rich conservative organizations like the National Rifle Association and National Right to Life Committee (which also maintain tax-exempt 501(c)(3) arms), but none was deeply involved in the Pickering battle. Instead, there were a few small groups like the newly formed Coalition for a Fair Judiciary, which was created after the near defeat of the John Ashcroft nomination and which operates with one employee, working out of her home in suburban Virginia.
That imbalance virtually assures that the Pickering situation will play out again in the future, with Republicans significantly outgunned in the lobbying battle. Democrats have made no secret of their intention to defeat more of the president's judicial nominees, and People for the American Way and other coalition members are already at work on coming campaigns. The close coordination between committee Democrats and the coalition during the Pickering fight will no doubt be a model for future efforts. What worries many conservatives is that the meagerly funded, poorly organized effort on Pickering's behalf might become a model for the Republican side. If that is the case, it will not be long before Republicans are again left fuming after another bitter defeat.
Syndicated column by Kathleen Parker, Tribune Media Services
Chanute Tribune, The (KS)
Author/Byline: © 2002 The Chanute Publishing Co.
May 11, 2002
https://infoweb.newsbank.com/
This could be a fluke. Officials at Harvard may repair this obvious malfunction before it does any real damage, such as contaminating other institutions of higher learning. Common sense, after all, can be highly contagious.
But for the moment, don't blink, Harvard has done an astonishing thing. A few days ago, Harvard administrators unveiled a new sexual misconduct policy that gives a nod rather than a wink to due process.
The new policy raises the standard of proof for students who file rape and assault charges, as opposed to the old policy, which more or less allowed a student to accuse another without any evidence. Beginning in the fall, Harvard will ask for what one might expect a school like Harvard to ask for: physical evidence, eyewitnesses and other "sufficient independent corroboration" before they'll investigate a complaint in the university's campus judiciary system.
Absent such details, the school may drop the complaint or refer the accusing student to a district attorney or to a new process the faculty also just approved, called "confidential mediation."
For those who've been paying taxes the past 20 or 30 years - and for whom nearly everything is astonishing these days - things have changed. Back when I was a student oh so long ago, kids were known to take a little drink, smoke a little dope and make a little love over the noise of war protesters. Not that I did any of the above, mind you; I was in the library translating Hippocrates' notes into Modern Greek.
Nowadays, they tell me, kids get really really stoned, really really drunk, and sex is mostly a rape thing. Hence the need for strict policies defining what rape is, how rape happens (usually large quantities of drugs and/or alcohol are involved, and the word "No" sounds a lot like "N'yeth"), and totalitarian rules that stripped the accused of due-process protection.
At most institutions, young men accused by young women were not permitted an attorney, could not face their accuser or cross-examine witnesses. At Columbia University, which caught flak a few years ago for its Stalinist policy, an accused was allowed only to bring a "morale booster," who otherwise had to keep his trap shut.
All of these measures are the gift of the hardest-core feminists, who, in spite of insisting that women are equal to men, depend for their livelihood on the notion that women are helpless victims of predatory men. Follow the money, specifically the federal Violence Against Women Act, and you'll quickly discover that propagating myths of campus rape is a meal ticket for a variety women's advocacy groups. Congressmen who keep funding the Act are either dense or terrified, or possibly both. Jesse Jackson didn't invent the shakedown.
The biggest myth that won't die is that one of four college women is raped on campuses each year. A drop of Harvard's newfound common sense would reveal this claim to be ludicrous. If 25 percent of Daddy's little girls were being sexually assaulted at college, there wouldn't be any girls on campus.
In fact, the figure was based on spurious research, which included a question using the following definition of rape: "Have you had sexual intercourse when you didn't want to because a man gave you alcohol or drugs." Hmmmm. I can count on two hands, no toes, the number of women who would answer "no" to this question. How about this as an answer: "Yes, we drank a few beers and I wasn't in the mood, but I did it anyway."
Rape is a problem, but it isn't close to the epidemic some rape crisis advocates would have us believe. Some campuses report exactly zero rapes in a given year. Others report one or two. Even huge statewide university systems such as California's reported, for example, 13 rapes in 1995, according to the Department of Education's Campus Crime Statistics.
But isn't 13 a lot, even if there are more that may go unreported? Yes, and it's awful. But it's not close to one in four. Such figures might invite scrutiny and preventive measures, but they hardly justify the hysteria and draconian measures that have emerged in recent years.
We can argue all day about the statistics on date rape. Absent physical evidence, which Harvard now demands, he said/she said doesn't work very well, especially when he/she is/are drunk. But even if date rape were epidemic, no crime justifies stripping an accused person of his right to due process. Given the existence of such prejudicial, unfair, totalitarian policies, the really perplexing question is, why are guys still going to college?
***
Kathleen Parker - Orlando Sentinel columnist
Evidence Required
Winchester Star, The (VA)
May 14, 2002
https://infoweb.newsbank.com/
This could be a fluke.
Officials at Harvard may repair this obvious malfunction before it does any real damage, such as contaminating other institutions of higher learning. Common sense, after all, can be highly contagious.
But for the moment, don't blink, Harvard has done an astonishing thing. A few days ago, its administrators unveiled a new sexual misconduct policy that gives a nod rather than a wink to due process.
The new policy raises the standard of proof for students who file rape and assault charges, as opposed to the old policy, which more or less allowed a student to accuse another without any evidence. Beginning in the fall, Harvard will ask for what one might expect a school like this to ask for: physical evidence, eyewitnesses and other "sufficient independent corroboration" before its officials investigate a complaint in the university's campus judiciary system.
Absent such details, the school may drop the complaint or refer the accusing student to a district attorney or to a new process the faculty also just approved, called "confidential mediation."
For those who have been paying taxes the past 20 or 30 years — and for whom nearly everything is astonishing these days — things have changed. Back when I was a student oh so long ago, kids were known to take a little drink, smoke a little dope and make a little love over the noise of war protesters.
Not that I did any of the above, mind you; I was in the library translating Hippocrates' notes into Modern Greek.
Nowadays, they tell me, kids get really really stoned, really really drunk, and sex is mostly a rape thing. Hence the need for strict policies defining what rape is, how rape happens (usually large quantities of drugs and/or alcohol are involved, and the word "No" sounds a lot like "N'yeth"), and totalitarian rules that stripped the accused of due-process protection.
At most institutions, young men accused by young women were not permitted an attorney, could not face their accuser or cross-examine witnesses. At Columbia University, which caught flak a few years ago for its Stalinist policy, an accused was allowed only to bring a "morale booster," who otherwise had to keep his trap shut.
All of these measures are the gift of the hardestcore feminists, who, in spite of insisting that women are equal to men, depend for their livelihood on the notion that women are helpless victims of predatory men.
Follow the money, specifically the federal Violence Against Women Act, and you'll quickly discover that propagating myths of campus rape is a meal ticket for a variety women's advocacy groups. Congressmen who keep funding the Act are either dense or terrified, or possibly both. Jesse Jackson didn't invent the shakedown.
The biggest myth that won't die is that one of four college women is raped on campuses each year. A drop of Harvard's newfound common sense would reveal this claim to be ludicrous. If 25 percent of Daddy's little girls were being sexually assaulted at college, there wouldn't be any girls on campus.
In fact, the figure was based on spurious research, which included a question using the following definition of rape: "Have you had sexual intercourse when you didn't want to because a man gave you alcohol or drugs?"
Hmmmm. I can count on two hands, no toes, the number of women who would answer "no" to this question. How about this as an answer: "Yes, we drank a few beers and I wasn't in the mood, but I did it anyway."
Rape is a problem, but it isn't close to the epidemic some rape crisis advocates would have us believe. Some campuses report exactly zero rapes in a given year. Others report one or two.
Even huge statewide university systems such as California's reported, for example, 13 rapes in 1995, according to the Department of Education's Campus Crime Statistics.
But isn't 13 a lot, even if there are more that may go unreported? Yes, and it's awful. But it's not close to one in four.
Such figures might invite scrutiny and preventive measures, but they hardly justify the hysteria and draconian measures that have emerged in recent years.
We can argue all day about the statistics on date rape. Absent physical evidence, which Harvard now demands, he said/she said doesn't work very well, especially when he/she is/are drunk.
But even if date rape were epidemic, no crime justifies stripping an accused person of his right to due process. Given the existence of such prejudicial, unfair, totalitarian policies, the really perplexing question is, why are guys still going to college?
Domestic abuse of immigrants is on the rise
Las Vegas Sun (NV)
May 20, 2002
https://infoweb.newsbank.com/
For seven years Maria endured abuse from her husband, convinced she could do nothing about it.
The two had crossed the border illegally from Mexico. He let her sell tamales from their house, but otherwise shut her in and kept her from building a life of her own. He also hit her.
He became a legal resident, but she didn't. He would tell her she better not leave him or go to the police, or she would be deported and never see their two children again.
"I had to work hard for her to trust me, since she thought nothing could save her and that even if she sought help, the Immigration and Naturalization Service would come after her," said Suzanne Ramos, victim's advocate for the Reno city attorney's office.
Maria -- whose last name was withheld -- represents a growing problem of domestic violence in the immigrant community in Nevada.
In normal circumstances the crime is a challenge for law enforcement and social services agencies to address because many cases go unreported and victims often do not cooperate with prosecutors.
In the immigrant community there are additional obstacles. The abuser often uses the victim's undocumented status as a weapon, threatening to have the victim deported if abuse is reported.
Experts say the problem will continue to grow as the state's immigrant population, mostly Hispanic, grows at a higher rate than the general population.
Though no agencies keep track of the number of undocumented immigrants who are victims of domestic violence, those who work on the issue say the problem seems to be on the rise.
Ramos said she got about 100 calls a month from Spanish-speaking women who were victims of domestic violence in the first four months of 2002, compared with an average of 70 during the same period of 2001. About 90 percent were from undocumented immigrants, she said.
Maria, who was referred to Ramos when she filed a restraining order against her husband, was able to petition for a special visa under the Violence Against Women Act, a federal law passed in 1994 but still little-known. She became a resident in March and has left the state with her children to start a new life.
But dozens of others in the same situation don't know they have rights despite their lack of papers, and private and public agencies statewide are trying to spread the word.
Locally, Clark County Legal Services and Nevada Legal Services, both nonprofit agencies, have been offering free classes on the federal law since last December as part of a pro bono immigrant protection project.
"When we decided to create the project late last year, it was because we saw a growing need," Barbara Buckley, executive director for Clark County Legal Services, said.
Liliana Loftman, lead attorney for the agency, said she gets about 15 calls a week on the issue, and that their classes, held every three weeks, are full.
Roxana Castillo, paralegal for Nevada Legal Services, said the two agencies together have about 45 visa petition cases involving domestic violence in progress.
Buckley's nonprofit helped organize the second annual state summit on battered immigrants in Las Vegas earlier this month, with domestic violence workers, national experts from the INS and some of the federal law's authors.
"We did the summit because many people working in law enforcement or at shelters for women still don't know about the legal remedies available to immigrants in this situation," Buckley said.
Silas Shawver, director of the Immigrant Workers' Citizenship Project, a nonprofit founded last year to help immigrants become citizens, was at the summit. He said he sees undocumented immigrants in his office who are victims of domestic violence and want to know how they can become legal residents and, eventually, citizens.
Columnist's opinion on rape was offensive
Sun, The (Lowell, MA)
Letters to the Editor
May 20, 2002
https://infoweb.newsbank.com/
We are writing to express our disappointment in the recent printing of an opinion article entitled "Harvard ends the hysteria over date rape" printed in The Sun on May 14. The attitudes on date rape expressed by syndicated columnist Kathleen Parker were offensive, based on inaccurate information and deeply painful to rape survivors. Perpetuating myths regarding rape and sexual assault as "sex gone wrong" and date rape as the result of excessive drugs and alcohol on campus is neither helpful nor appropriate.
This article was not worthy of publication in the pages of The Sun. We recognize that The Sun's editors believe in providing opportunity for open and frank dialogue on their editorial pages. However, this should not be done at the expense of victims of crime. As the local standard for reporting and opinion we believe that The Sun can do better than this.
Date rape on college campuses across the United States is endemic. Published data does not reflect the painful underlying reality that one in four women will experience a sexual assault on a college/university campus during her four years at college. Victims of date rape on campus rarely report it to the college administration. It is estimated that only 1 in 10 rape survivors ever files a police report. There is rarely physical evidence, rarely a witness to the crime and the experience of shame and self-blame for the survivor can be overwhelming.
As a Rape Crisis Center, we use funds from the Violence Against Women Act to provide services to rape survivors and their families. Ms. Parker's suggestion that the Violence Against Women Act funds are used as a "meal ticket" for women's groups is not worthy of publication in your newspaper. The staff at Rape Crisis Services of Greater Lowell, supported by the efforts of our board of directors and volunteers, works tirelessly to bring relief from pain and anguish to survivors of sexual assault and their families.
In the past, we have been deeply grateful to The Sun for its support of our work. We all know that rape knows no boundaries and leaves deep wounds in the victim. We trust that the publication of this article was an oversight and that we can count on The Sun in the future to print only opinions that are worthy of the standard of your publication. Additionally, we would like to recognize that many survivors of sexual assault may have been offended or upset by your publication and will need support. Our 24-hour hotline number is 800-542-5212 and is available to survivors and their families.
Vera Godley, Executive Director
Andrea Canty, Director of Counseling Services Rape Crisis Center, Lowell
Editor's note: Kathleen Parker's column supported Harvard's new policy granting due process rights to male students accused of rape on campus. While Parker's opinion is her own, The Sun will continue to publish diverse viewpoints on its editorial pages.
Senate Panel OKs Judge Nomination
Associated Press News Service, The
May 23, 2002
https://infoweb.newsbank.com/
WASHINGTON (AP) - Three Senate Democrats broke ranks Thursday and voted to send one of President Bush's judicial nominees to the full Senate for consideration, despite critics' questions about conflicts of interests and his views on the workplace, the disabled and the environment.
The nomination of U.S. District Judge D. Brooks Smith to the 3rd U.S. Circuit Court of Appeals in Philadelphia was approved 12-7 by the Senate Judiciary Committee, sending it to the Senate.
Republicans, who voted unanimously for Smith, needed at least one Democratic vote to send the nomination to the Senate floor. The committee has 10 Democrats and nine Republicans.
They got three: Sens. Joseph Biden of Delaware, John Edwards of North Carolina and Herb Kohl of Wisconsin.
Kohl did not comment on his vote. Edwards, who missed the vote but later got approval to be recorded as voting for Smith, said he believed Smith would not let his personal views affect his judgment.
Biden said he also had problems with Smith because he made a speech about the Violence Against Women Act, which was going to be challenged in court, in front of the conservative Federalist Society in 1993. But ''I don't have sufficient reason to vote against this judge,'' Biden said.
Sen. Arlen Specter, R-Pa., a former prosecutor who is a Smith patron, made a personal plea for Democrats to allow Smith to move past the committee.
''Occasionally, members of this committee give some deference to their fellow members who have served a fair length of time, have some knowledge of judicial practices and law and who have been willing to vote against some Republicans and have been willing to vote for some Democrats very much against the exhalations of my party,'' he said.
The 3rd Circuit covers Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands.
It is not clear when the Senate will act on Smith's nomination.
Bush and the GOP have complained that the Democrats have not acted quickly enough on his nominees. The Senate has confirmed 57 judges, including nine of the president's first 30 appeals court nominees. Bush has nominated 102 people for U.S. Appeals and District Court vacancies.
A coalition of feminist, environmental, civil rights and other special-interest groups has been agitating against Smith since his nomination Sept. 10, but Republicans have accused them of smearing him. He was named a federal judge in 1988 by President Reagan.
Democrats have complained Smith remained in an all-male sporting club 11 years after telling the Senate he would leave if the club didn't change its bylaws banning women. They also asked during his confirmation hearing why he waited to remove himself from a case involving a bank where his wife was a vice president, and questioned trips he accepted from organizations pursuing relaxed environmental regulations.
The Justice Department cleared Smith of any wrongdoing in the fraud case, and he testified that his rulings as a judge ''were neither illegal nor unethical.''
Smith said the trips, some to resort locations, were purely educational, but he promised not to accept any more that might pose an appearance problem. He said he was not aware at the outset of the fraud case that his wife's bank might be involved. When he determined that it was, he stepped aside, he testified during his confirmation hearing.
Smith also said he tried to get the club to change its bylaws, and left after deciding it wasn't going to change.
The Senate Judiciary Committee also held a confirmation hearing for Arkansas lawyer Lavenski Smith, who wants a seat on the 8th U.S. Circuit Court of Appeals in St. Louis. It covers North Dakota, South Dakota, Minnesota, Iowa, Nebraska, Missouri and Arkansas.
Smith, 42, is a lawyer and former business professor who served a year on the state Supreme Court as an appointee of Gov. Mike Huckabee before the governor named him to the PSC. Smith ran unsuccessfully for the state Court of Appeals in 2000, and now serves on the state Public Service Commission.
Ethics and judgment
San Francisco Chronicle (CA)
EDITORIAL
June 4, 2002
https://infoweb.newsbank.com/
SERIOUS QUESTIONS about ethics and judgment ought to be enough for the U.S. Senate to reject the nomination of D. Brooks Smith as President Bush's choice for the Third Circuit Court of Appeals in Pennsylvania.
After surviving a divided Judiciary Committee, with members voting 12--7 to support the nomination, Smith fate is expected to be determined on the Senate floor within two weeks.
Both Republicans and Democrats need to take a close look at Smith's record.
As a trial judge, Smith was reversed more than 50 times by the court he now seeks to join. If that does not give one reason for pause, consider:
-- During his 1988 confirmation for federal judge, Smith misled the Senate about his membership in a hunting and fishing club that excludes women, promising to withdraw within two years. But he didn't quit the Spruce Creek Rod and Gun Club until 1999 after he apparently decided to pursue a seat on the Third Circuit court.
-- In a speech to a conservative group, Smith blasted the Violence Against Women Act as not only unconstitutional, but foolish for trying to allow crimes such as rape to become the basis of federal lawsuits. Smith distanced himself from those remarks at his Senate confirmation hearing. Which D. Brooks Smith should we believe?
-- Smith issued a significant ruling in a bank case while failing to recuse himself even though his wife was a bank employee, and he and his wife held stock in the bank's parent company.
Federal jurists must have stern moral mettle and impeccable credentials. His extended membership in a segregated club and his seeming disregard for basic ethical principles cast questions about his judgment that cannot be tolerated at the highest levels of the federal judiciary.
Smith should not be confirmed.
Saudi princess fined $1,000 for pushing maid down stairs
No-contest plea entered by attorneys
Associated Press Archive
July 2, 2002
https://infoweb.newsbank.com/
A Saudi princess accused of pushing her maid down a flight of stairs was fined $1,000 and put on probation in a no-contest plea accepted in court Tuesday.
Princess Buniah al-Saud is in Saudi Arabia and didn't appear at the five-minute hearing in which her attorneys didn't contest a misdemeanor battery charge filed in Florida Circuit Court.
In such a plea, a defendant doesn't admit or deny guilt but agrees to a punishment. The judge who accepted the plea also ordered her to pay $131 in court fees and surcharges and write a letter of acknowledgment to the court. She was put on unsupervised probation.
The plea marked an about-face for the 41-year-old princess who in February promised a judge she would come back to the United States for trial, if allowed to return to Saudi Arabia, because she wanted to clear her name. The princess is a niece of King Fahd of Saudi Arabia.
"It was a good way to resolve the case for all parties," said Mark Schnapp, one of her attorneys. "Would we have preferred to go to trial in the long run? Yes. But at the end of the day, she's in Saudi Arabia. This will terminate the case at this point."
Another attorney, Russell Crawford, said the princess had no immediate plans to return to the United States. But her attorneys said the plea wouldn't prevent her from returning.
"We are not contesting the charge and that's the end of it," Crawford said.
The princess had been living in Orlando while studying English at the University of Central Florida. She was originally accused in December of pushing the maid, Ismiyati Suryono, down 12 steps at their apartment, and was originally charged with attempted aggravated battery. She was later accused of also forcing Suryono to work without pay, and of stealing electronic equipment from her driver and selling it.
Al-Saud settled a civil lawsuit filed by Suryono and returned to Saudi Arabia in February with a judge's permission. Terms of the civil settlement were not released.
Suryono returned home to Indonesia for her mother's funeral and was denied a visa to return to Florida on the grounds that she might try to stay in the United States illegally.
Prosecutors said that would have kept her from testifying had the state taken the case to trial.
Assistant State Attorney Mike Saunders said he was unaware of a federal law that might have allowed Suryono to return to the United States to testify in a criminal trial. The new law, part of the Violence Against Women Act, allows visas to be issued to noncitizens in some cases.
"We did not know about it," Saunders said. "But we were already in stages of discussion, a similar plea to what is resolving the case today. So I'm not sure we would have gone through those steps."
Suryono's attorney, Russell Troutman, said he was satisfied with the no contest plea but would have preferred a guilty plea. He questioned the motive behind the denial of Suryono's visa application.
"Why in the world wouldn't they give her a visa?" Troutman said. "I'm speculating that it was an attempt on the part of the administration to do a favor for the royal family."
Nail al-Jubeir, a spokesman for the Saudi embassy in Washington, didn't immediately return a phone call.
Case of a Saudi princess mistreating her maid shows that the US should not moralize to Arab countries about the lack of rights of women in their societies
All Things Considered [NPR] (USA)
July 3, 2002
https://infoweb.newsbank.com/
ROBERT SIEGEL, host: In Orlando, Florida, the tale of a Saudi princess and her maid has reached a denouement of sorts. NPR News analyst Daniel Schorr says the story is a sad one, both because of the outcome and because of what it says about justice for women in the United States.
DANIEL SCHORR: Ismiyati Suryono, 36, an Indonesian, is one of some 45,000 women and girls who are brought to this country annually as domestics. Many of them complain of being exploited and abused. Two years ago, Congress wrote protection of their rights into the Violence Against Women Act, enabling them to bring charges against their employers.
Ms. Suryono's employer was no ordinary person. She was Princess Buniah al-Saud, 41, niece of King Fahd of Saudi Arabia, living in Orlando, Florida, studying English at a local university. Ms. Suryono complained to the Orlando prosecutor that the princess held her under conditions of involuntary servitude and on one occasion pushed her down a flight of stairs. In February, the princess was allowed to go home to Saudi Arabia on her promise to return for trial. In May, Ms. Suryono went home to Indonesia for her mother's funeral, expecting to return for the trial.
In due course, a subpoena arrived from the Orlando prosecutor. But although the Violence Against Women Act makes provision for visas in such cases, the American consul in Jakarta refused to issue one on the ground that she might try to stay. The princess did not return to Florida. Her lawyers got the charges against her reduced from felony to misdemeanor battery. In a five-minute hearing yesterday, they pleaded no contest and promised the judge a letter from her expressing regrets about the injuries suffered by her former maid. They paid $1,000 and $131 in court costs. The princess is now free to return to the United States; her former servant is not.
Against the princess of Saudi Arabia, the Violence Against Women Act doesn't help very much. This comes at a time when a new report by a group of Arab intellectuals commissioned by the United Nations warns that Arab societies are being crippled by a lack of political freedoms and by repression of women. We moralize about the condition of women in Arab countries, but we permit an Arabian princess to import repression of women into our country. This is Daniel Schorr.
CONVICTED KILLER FACES 2ND TRIP TO DEATH ROW
ORIGINAL DEATH SENTENCE OVERTURNED ON APPEAL
Roanoke Times, The (VA)
July 15, 2002
https://infoweb.newsbank.com/
Aquilia Barnette has been to death row and back. Starting today in a North Carolina courtroom, prosecutors will try to send him there again.
Barnette has never denied that during a 1996 crime spree he killed so he could kill again - gunning down a motorist in Charlotte and driving the dead man's car to Roanoke in search of his ex-girlfriend, Robin Williams.
On the morning of June 22, Barnette used his shotgun to blast the lock off the Loudon Avenue home where Williams had taken refuge with her mother. He dragged her out into the street, demanded to know why she had broken up with him, then shot her in the back. Williams died in her mother's arms.
"I remember it like it happened today," Bertha Williams said last week. "You think you are moving on, but then things get stirred up again."
Williams will have to relive her horror later this month, when she testifies to a jury that will sentence Barnette in U.S. District Court in Charlotte.
A different jury condemned Barnette four years ago. But the U.S. 4th Circuit Court of Appeals reversed the death sentence in 2000, ruling that Barnette's lawyers were denied the opportunity to rebut damning testimony from a prison psychiatrist.
The appellate court let Barnette's conviction stand, leaving just one question: Should the 29-year-old spend the rest of his natural life in prison, or should he die by lethal injection?
When jury selection begins today, prosecutors will be looking for 12 death votes.
Barnette's lawyers will seek jurors more inclined to hear their pleas for mercy.
"We hope to present a case that will save our client's life," Charlotte attorney Harold Bender said.
Lawyers said it will take at least a week to pick a jury, and the sentencing could last up to a month. Although Williams was murdered in Roanoke, her case was consolidated in federal court with the killing of a motorist in Charlotte so prosecutors could seek a death sentence not available to them in state court.
Barnette was prosecuted under the Violence Against Women Act, a 1994 law passed by Congress that, among other things, makes crossing a state line to commit domestic violence a federal offense.
This much has already been proven: After Williams broke up with Barnette, he set fire to her Roanoke apartment in April 1996, forcing her to leap from a window with serious burns. Police issued warrants, but Barnette lay low in Charlotte, where his mother lives.
Although Williams gave police the address, Charlotte authorities were unable to locate Barnette.
On the night of June 21, Barnette decided to return to Roanoke to finish what he had started. He packed a duffel bag, taped a red flashlight to the barrel of his sawed-off shotgun, and waited behind some bushes at an intersection near the Charlotte airport.
Donald Lee Allen, a mechanic from South Carolina who had been out that night with friends, was unlucky enough to catch the next red light.
Barnette ordered Allen out of the car at gunpoint, led him to a drainage ditch, and shot the 22-year-old in the back as he pleaded for his life. Barnette then took Allen's blue Honda Prelude and headed north to Roanoke.
Along the way, he took the cash from Allen's wallet and inspected it long enough to learn the name of the man he had just killed. He then tossed the wallet out of the window.
Barnette arrived in Roanoke around dawn. He used the bolt cutters he had brought along to cut the phone lines to the tidy frame house at 911 Loudon Ave. N.W., where Williams, 23, had moved in with her mother.
He then used his shotgun to blast the lock off a side door and pushed his way inside. Bertha Williams had just put a batch of brownies in the oven, and at first she thought the stove had exploded.
But by the time her panicked daughter had come downstairs, they both realized what had happened. "Run, Robin, run," Bertha Williams told her daughter.
"She ran out the front gate," Barnette later said in a statement to police introduced at his trial. Barnette chased Williams down Loudon Avenue and grabbed her by the hair when she fell. He began to lead her back to the house, where Bertha Williams was standing outside.
"The last thing I remember . . . was looking at my gun," Barnette told police. "I was pointing it at her and then she was running to her mom and I shot her."
Barnette's tearful confession - the first of many he would give - made the verdict a forgone conclusion when his trial began in 1998. His lawyers at the time readily admitted his guilt, but said a troubled childhood marred by family violence impaired Barnette's reasoning at the time of the crimes.
Scott Duncan, a prison psychologist who testified for the government, had a different opinion.
He told the jury that Barnette was a psychopath who killed with no feeling and was capable of killing again.
Duncan noted that when he interviewed Barnette, prison officials were serving him lunch. Barnette continued to describe the killings in detail, "and at the same time he was not missing a bite on his bologna and cheese sandwich," Duncan testified.
Barnette's attorneys sought to counter Duncan's opinion with that of their own psychiatrist. But Judge Robert Potter would not allow the testimony, saying the jury had heard enough.
On appeal, the 4th Circuit Court of Appeals threw out the death sentence, saying "simple fairness" dictated that Barnette should have been able to rebut Duncan's testimony.
"They say they need to be fair to him," Bertha Williams said. "But he wasn't fair to Robin. He wasn't fair to Danny. He shot Robin in the back; he shot her twice."
"I think the death penalty should stand, because he's guilty," she said. "There's no question about his guilt."
Four years ago, even Barnette agreed with her.
"If they want my life, that's fine," he said, gesturing to prosecutors after the verdict was announced. "Because I don't know if I want to keep my life, because it shouldn't have happened.
"The worst thing they could have done is sentence me to life, because I live every day in a little block and think about what I did."
WOMEN'S GROUPS PUSH FOR RIGHT OF DOMESTIC ABUSE VICTIMS TO SUE
NEW BILLS WOULD ALLOW FILING OF A CIVIL CLAIM, RECOVERY OF LEGAL FEES
Modesto Bee, The (CA)
July 29, 2002
https://infoweb.newsbank.com/
Having made significant strides in criminalizing domestic abuse, women's groups are advancing legislation in the Capitol that will expand the ability of victims to sue their abusers.
"Criminal penalties alone do not make the victim whole or assist her to recover," said Kiran Malhotra, associate director of the Statewide California Coalition for Battered Women.
"We've heard way too many stories of victims being reduced to poverty or having to go on welfare with their children because they don't have access to their bank accounts."
Gov. Davis last week signed a measure -- Assembly Bill 1933 -- that expands the rights of victims of domestic violence to seek financial redress in civil court.
"Victims of domestic violence already have enough troubles," Davis said. "There is no reason to allow the legal system to re-victimize them by not providing them the full measure of justice."
And when the state Senate resumes session in August, advocates plan to make California the first state to adopt a bill modeled after the federal Violence Against Women Act that was struck down by the U.S. Supreme Court two years ago.
Domestic violence remains a serious problem in California, said Assemblywoman Sarah Reyes, the Fresno Democrat who introduced AB 1933.
"We have to stop this because it may (involve) the father and the mother, but the children are learning violence as a result of that," she said.
Reyes said curbing domestic violence demands civil action as well as criminal penalties. The state's police agencies received nearly 200,000 domestic violence calls in 2000, but only 5 percent of those convicted of domestic violence receive jail time, she said.
"This slap on the wrist only serves to reinforce the sense among perpetrators that they have gotten away with it," Reyes said. "This new law will ensure that all victims will have access to justice."
Extended statute of limitations
Another measure, AB 1928 by Assemblywoman Hannah-Beth Jackson, extends the statute of limitations for filing a claim from one year to three years. And it allows victims to recoup attorney's fees, which Los Angeles attorney Gloria Allred says is an important provision.
Allred has represented domestic violence victims for more than a quarter century. But she said many victims can't find attorneys to represent them in a civil action because they have no financial incentive.
"An attorney working on a contingency fee basis might have to invest $100,000 of her time to litigate a case, which might only have a recovery of $20,000 in damages," Allred said.
AB 1928 would allow victims to sue their abusers for violations of their civil rights. The measure also would allow victims to seek compensatory and punitive damages and attorneys fees.
"This will add an additional important statement ... that crimes based upon someone's gender are not acceptable in a civilized society," said Jackson, D-Santa Barbara.
BARNETTE'S LIFE IS ONCE AGAIN IN JURY'S HANDS
1998 MURDER CONVICTIONS STAND, BUT DEATH SENTENCE WAS OVERTURNED
Roanoke Times, The (VA)
July 30, 2002
https://infoweb.newsbank.com/
With Aquilia Barnette's guilt a foregone conclusion, a jury began to hear evidence Monday on whether he should receive a death sentence for his murderous road trip to Roanoke.
Barnette was convicted four years ago in the shotgun slaying of his estranged girlfriend, Robin Williams, outside her mother's Loudon Avenue home the morning of June 22, 1996.
The night before, Barnette had used the same shotgun to ambush a motorist in Charlotte. He ordered Donald Lee Allen out of his car at gunpoint, shot the 22-year-old in the back, then drove the stolen car to Roanoke in search of Williams.
A jury convicted Barnette of both murders in 1998, but its death sentence was later reversed on appeal.
The 4th U.S. Circuit Court of Appeals sent the case back for a new sentencing, ruling that Barnette's lawyers were unfairly deprived of the opportunity to rebut damning psychiatric testimony that portrayed their client as a psychopathic killer.
As testimony began Monday in U.S. District Court in Charlotte, prosecutors asked the jury to show no mercy for a killer who gave none to his victims.
"There is but one true verdict in this case, and that is a verdict of death," Assistant U.S. Attorney Jill Westmoreland Rose said in opening statements.
But in considering the only other option - life in prison with no chance of parole - jurors should take into account mitigating factors that include Barnette's horrible upbringing, his exposure to domestic violence as a child, and the fact that he has become a model prisoner since his arrest, defense attorney Jean Lawson argued.
The sentencing hearing is expected to last several weeks.
Barnette was prosecuted under the Violence Against Women Act, a 1994 law passed by Congress that, among other things, makes crossing a state line to commit domestic violence a federal offense. By trying the case in federal court, and consolidating the two murders into one case, prosecutors were able to seek a death sentence that would not have been available had Barnette been prosecuted for Williams' murder alone in Roanoke.
Barnette, 29, has never denied that he killed to kill again.
Outlining the evidence to the jury, Rose described how he used the longest day of 1996 "to put the finishing touches on his deadly ways."
He was at his mother's home in Charlotte at the time, having fled Roanoke after setting fire to Williams' apartment two months earlier. The 23-year-old suffered serious burns and was forced to leap from a second-story window.
Angry that Williams had broken up with him and consumed with jealousy over what he thought was her new relationship, Barnette decided that he had to get back to Roanoke. He taped a flashlight to the barrel of a sawed-off shotgun, packed bolt cutters and a crowbar in his duffel bag, and dressed himself in black from head to toe.
He then hid behind some bushes at a nearby intersection and waited for a lone car to catch the red light. That car was driven by Allen, a mechanic who had been out shooting pool that night with friends. After ignoring Allen's pleas for his life, Barnette shot him in the back and headed north on Interstate 77.
"The defendant was going to Roanoke for one reason: one down and one to go," Rose said.
Arriving at the Williams home around dawn, Barnette used his bolt cutters to cut the phone line before shooting the lock off the door. He chased Williams out into the street, demanded to know why she had left him, then shot her in the back as she ran to her mother.
As awful as Barnette's actions were, defense attorneys said, there are reasons to spare his life.
Mental problems brought on by a childhood of neglect and abuse do not excuse what Barnette did, but they do explain it, Lawson said.
And his model behavior as an inmate disproves the government's argument that he is a future threat, she said. "The man who sits here now is a very different man, he's changed over the past six years," she said as Barnette sat quietly next to co-counsel Harold Bender.
Bender and Lawson will have a chance in the coming weeks to present testimony that was barred during the first sentencing.
That testimony was from a psychiatrist who had a different opinion than that of Scott Duncan, a prison psychiatrist who testified for the government that Barnette was a cold-blooded killer so unaffected by what he did that he described the murders in great detail during lunch, never missing a bite from his bologna sandwich.
The appellate court ruled that Judge Robert Potter erred by not allowing the defense to call its own psychiatrist to rebut Duncan's testimony.
But even with a second opinion, prosecutors say, the result should be the same.
"The evidence will show that he showed them no mercy," Rose said of Williams and Allen. "They are gone, but we are here. . . . We are here for justice."
Man faces prison time for attack on woman in Idaho Falls
Post Register (Idaho Falls, ID)
September 18, 2002
https://infoweb.newsbank.com/
A former Idaho Falls resident faces at least seven years in federal prison for raping, assaulting, stalking and threatening his ex-girlfriend.
A federal jury found 45-year-old John Edward Dade of Utah guilty Monday in Pocatello of charges of interstate domestic violence, interstate stalking, brandishing a firearm and making threatening phone calls. Chief U.S. District Judge B. Lynn Winmill will sentence Dade on Nov. 26 in Pocatello.
Dade attacked the woman during 2000 and 2001. The two had been in and out of a violent relationship for 13 years, but Dade became possessive and more violent toward the Idaho Falls woman in 2000 after she began dating another man, Assistant U.S. Attorney James Peters said. Dade, who also had begun dating another person, came from Utah and attacked the woman at least twice, violating protection orders against him, Peters said. He also called the woman 46 times. He threatened her, broke into her house and beat her, Peters said. Dade said during the phone calls, which FBI agents recorded, he was on his way up from Utah and would kill her. The woman asked him more than 90 times to leave her alone, federal prosecutors said.
Agents from the FBI office in Idaho Falls investigated the case with assistance from Bonneville County Sheriff' s deputies and prosecutors. Dade remains in the Bannock County Jail while he awaits sentencing. He has been in custody since his arrest in January. The case was tried in federal court because the charges involve interstate travel and communication. It is a federal crime to cross state lines to batter, stalk and threaten an intimate partner. Interstate domestic violence cases are relatively rare in Idaho' s federal courts. Peters has prosecuted five such cases since the Violence Against Women Act went into effect in 1996. But domestic violence is a statewide problem, said Celia Heady of the Idaho Council on Domestic Violence. Out of the last 31 murders statewide, 17 of them were domestic violence related, she said. "We do have a problem," she said.
CONGRESS REACTS TO KILLINGS AT FT. BRAGG
BILL WOULD EXTEND CIVILIAN RESTRAINING ORDERS TO BASES
Charlotte Observer, The (NC)
October 17, 2002
https://infoweb.newsbank.com/
Lawmakers are considering legislation inspired by the Fort Bragg domestic killings last summer that would for the first time require restraining orders obtained in civilian courts to be enforced on military bases.
"Right now, you can enforce a protective order on an Indian reservation, but you cannot enforce it on a military base," said Rep. Robin Hayes, who authored a bill to remedy the loophole and ushered it through the House this week. "It is just a glaring problem."
Under present law, protective orders obtained in civilian courts extend across state lines, but are not enforceable on federal property, such as military bases. Under the Concord Republican's legislation, which still must be considered by the Senate, military police will be required to enforce civilian restraining orders.
While people familiar with the Fort Bragg killings doubt the legislation could have spared the four women's lives, they applaud the changes it would make.
"It says you not only have to obey this order in downtown Fayetteville," said Judge Elizabeth Keever of Cumberland County. "You also have to obey this order on the base."
Keever, chief judge of the 12th District, has been frustrated for years that the protective orders she hands down in her civilian court are not enforceable at the nearby military base.
The issue of domestic violence on military installations has been a growing concern for the Department of Defense in recent years. A task force was formed in 2000 to study the problem after three women were killed by their husbands or boyfriends on a military base in Kentucky.
On average, 50 women in military families are victims of domestic homicide each year, according to the Department of Defense. More than 10,000 domestic violence cases are reported in the military annually.
Debby Tucker, the civilian co-chair of the task force, estimates that many more cases occur than are reported. Many military wives, Tucker said, fear if they go to authorities, their husbands could be discharged, bringing further hardship onto the family.
Domestic violence in military families took on greater urgency this summer when four Fort Bragg wives were killed. In two cases, soldiers committed suicide after killing their wives. In two other cases, the soldiers were charged in their wives' deaths.
The military base loophole has existed since 1994 when the Violence Against Women Act was passed, allowing courts to enforce protective orders from other states. The law even included Indian reservations but did not apply to federal lands, such as military installations.
The problem was first revealed in 2001 by the Defense Department's task force, but officials and lawmakers did nothing to fix it. It came up again this month during field hearings in North Carolina about the Fort Bragg slayings.
"There are a number of issues we will deal with later," Hayes said. "Doing this immediately was critical."
Since none of the women killed this summer had taken out restraining orders against their husbands, Judge Keever doubts Hayes' legislation could have saved their lives. But, she said, it is an important change and could save lives in the future.
"It certainly will improve our ability to help victims of domestic violence," she said. "It's another tool, another resource, another reminder to women that there is help out there."
Enforce orders against spousal abuse on bases
Honolulu Star-Bulletin (HI)
October 18, 2002
https://infoweb.newsbank.com/
The House has voted to require that civilian judges' restraining orders against abusive spouses be enforced on military bases.
CONGRESS is taking a small but important step toward dealing with spousal abuse in military families. The House of Representatives has voted to close a loophole in the law dealing with domestic violence on military bases, but more efforts are needed to avoid what some regard as collateral damage from America's wars. The family problems that may be related to deployment too often are allowed to be hidden from law-enforcement authorities and the military chain of command.
The House this week approved a bill that would require the military to enforce restraining orders issued by civilian judges aimed at preventing domestic violence in military housing. The bill was prompted by the slaying of four Army wives by their husbands over a six-week period last summer at Fort Bragg, N.C. Two of the soldiers then committed suicide. A Pearl Harbor sailor is charged with murdering his wife and and mother-in-law in June after a state judge had issued a restraining order against him.
Due, at least in part, to the stresses of life in the armed service, domestic violence is twice as prevalent in the military than in civilian families. Members of elite units used in dangerous missions are considered even more prone to domestic violence, although no such studies have been conducted. Three of the four soldiers involved in the Fort Bragg killings were Special Operations Command members who had recently returned from duty in Afghanistan.
The House bill, proposed by Rep. Robin Hayes, D-N.C., whose district includes Fort Bragg, would close a loophole in the 1994 Violence Against Women Act that exempts military bases from enforcing restraining orders issued by civilian courts. Similar measures are pending in the Senate. Rep. Ellen Tauscher, D-Calif., said the loophole "has essentially made military installations a free zone for batterers."
The problem is more complex than that. Before the draft ended, fewer than one-fourth of the Army's enlisted troops were married. Enlistees are younger now, about half are married, and about 70 percent live off base, where civilian authorities are not required to report domestic-violence abuses to military authorities. While on-base housing may provide spousal abusers immunity from civilian court orders, living off base in adjoining communities may keep military commanders from knowing about it.
Military chaplains are assigned to identify and help soldiers having home problems, and 1,100 counselors at Army installations assist soldiers in adjusting to their post-deployment lives. However, professional counseling is not covered by military insurance policies. Many military personnel who seek professional counseling keep it confidential, concerned that domestic problems could jeopardize their promotions. Closing the restraining-order loophole alone will not end violence in military homes.
Sen. Wellstone killed in plane crash
Rutland Herald (VT)
October 25, 2002
https://infoweb.newsbank.com/
ST. PAUL - Sen. Paul Wellstone, a Minnesota Democrat known for his passionate commitment to liberal causes, was killed Friday in a plane crash in rural Minnesota, stunning his colleagues and shaking up an already volatile campaign for control of the U.S. Senate.
Wellstone, 58, was on his way to a funeral when his twin-engine, private plane went down in a freezing rain near the Eveleth-Virginia Municipal Airport, about 175 miles north of Minneapolis, and became engulfed in flames. His wife, Sheila; their daughter, Marcia; and five other people also died in the crash, said Colin McGinnis, Wellstone's chief of staff. As of Friday night, the cause of the crash was under investigation.
Sheriff Rick Wahlberg of St. Louis County, where the plane went down, said deputies told him the wreckage was split into sections: the fuselage, the tail, and two wings. The fuselage reportedly endured the impact relatively intact, but was later consumed by flames that raged for four hours in the wooded area.
"From the information I have gotten, I don't believe anyone could have survived out there," Wahlberg told reporters.
Paul McCabe, a special agent in the FBI's Minneapolis field office, said that an evidence team was deployed to the site, following standard procedure. But he added that the National Transportation Safety Board would be the lead agency in the inquiry.
"There is no indication nor any intelligence information that would suggest the crash of Senator Wellstone's plane was in any way an act of terrorism," McCabe said at the St. Louis County briefing.
Shocked and saddened congressional colleagues mourned the loss of their friend, a former professor they lauded as a feisty voice for children, the mentally ill, and the underprivileged. Minnesota officials, meanwhile, tangled with the question of how to fill Wellstone's place in the Senate and on the ballot.
Wellstone, who was generally regarded as the Senate's most liberal member, was engaged in a tight race for a third term. The contest has potentially critical implications for control of the U.S. Senate, where the Democrats now hold a one-vote majority.
Wellstone had been gaining recently in the polls, in spite of - some analysts say because of - the late senator's recent vote against authorizing the use of force against Iraq.
"He stuck by his guns. He was willing to take on powerful interests," Sen. Edward Kennedy, D-Mass., said after the crash from Minneapolis, where he had been campaigning for Wellstone. "In the end, he ran the race on what he believed, including taking a high-risk position on Iraq. He had this race won. He had already won it in Minnesota in the hearts and minds of people here."
Both Kennedy and his fellow Democratic senator from Massachusetts, John F. Kerry, traveled to Minnesota this week to help their friend win re-election. Friday, Kerry remembered talking to a "very energized" Wellstone on the phone Wednesday night and visiting with Sheila Wellstone.
"The last thing I did was give her a hug," said Kerry. "He was incredibly caring. He cared and cared and cared beyond most people's ability to care. Paul's poll was in his gut and his heart."
Kennedy arrived in Minnesota Thursday to appear with Wellstone at a series of campaign events Friday. But Wellstone instead decided to attend the funeral of the father of a state senator, so Kennedy campaigned himself. Kennedy tried to call Wellstone after a morning event to tell him how it went, but only got Wellstone's voice mail, the Massachusetts lawmaker said in a phone interview.
For a brief period Friday, erroneous reports circulated on Capitol Hill that Kennedy - who survived a plane crash in 1964 - was on the downed plane, an 11-seat, King Air A-100.
Kerry's wife, Teresa Heinz, lost her first husband, Pennsylvania Sen. John Heinz, in a 1991 plane crash.
Statements of grief poured in from Wellstone's colleagues, from activists, and from President Bush.
"Paul Wellstone was a man of deep convictions, a plainspoken fellow who did his best for his state and for his country. May the good Lord bless those who grieve," Bush said during an appearance at his Crawford, Texas, ranch with Chinese President Jiang Zemin.
Senator Tom Harkin, Democrat of Iowa, broke down as he mourned the death of the man he called "my closest friend in the Senate" and "a good Samaritan, helping those on the roadside of life. He was the most principled public servant I've ever known."
Flags flew at half-staff in Washington and Minnesota. The National Republican Congressional Committee immediately suspended its campaign advertising in Minnesota. Wellstone campaign staffers, coming to a memorial service Friday night at the state capitol in St. Paul, arrived in the converted school bus that had been painted Wellstone's colors of green and white and which had become his trademark campaign vehicle.
One Wellstone worker, David Olson, broke down in tears as he arrived. "I don't know what to say. My heart is just broken today."
Wellstone's opponent, Republican Norm Coleman, called it "a terrible day for Minnesota. Paul Wellstone and I were political opponents, and that was it. I had the greatest respect for his passion. He was a fighter.
"The people of Minnesota are going to miss that; I'm going to miss that. We have suspended all campaign activities - TV, print, media, everything. This a time for folks just to pray and mourn and again, we are very, very sad," Coleman said. Coleman's staffers were similarly struck.
"This seems to me to transcend politics," said Coleman staffer Patrick McLaughlin. "I just hope everyone can collect themselves regardless of their political philosophy and support the Wellstone family however they can."
Wellstone's death recalled a similar circumstance in 2000, when Missouri Gov. Mel Carnahan, then the Democratic nominee for U.S. Senate, was killed in a plane crash just weeks before the election. Carnahan's name stayed on the ballot and received the most votes; his widow, Jean Carnahan, was appointed to serve his term until next month's election. Jean Carnahan is now engaged in a hard-fought campaign against Republican James Talent, a former House member, to serve the remaining four years of the six-year term.
It was unclear Friday what will happen in Wellstone's race. Under Minnesota law, the state Democratic Party could select someone to run in the incumbent's place, as long as it does so at least four days before the election. Gov. Jesse Ventura could also appoint someone to fill Wellstone's seat until an elected senator is sworn in. It was unclear whether Wellstone must be taken off the ballot, said Tovah Ravitz-Meehan, a spokeswoman for the Democratic Senatorial Campaign Committee.
Ventura, who is not running for re-election, said Friday that if he did appoint a successor, "it will not be me." Democrats are worried about who to appoint as a new candidate on the ballot for a seat they may need to keep control of the Senate. But they are also wary of what choice Ventura, an Independent and flamboyant former wrestler, would make to replace Wellstone. "It's a crapshoot," said a Democratic operative.
The matter may also complicate an expected lame-duck session of Congress after the election. If Wellstone's seat remains vacant during the period before new senators take their seats, Democrats would technically still be in control, with 50 votes (including the allied vote of Sen. James Jeffords, I-Vt., against the GOP's 49 members. But if a Republican was appointed to fill Wellstone's remaining term, there would be a 50-50 standoff - effectively giving the GOP control since the tie would be broken by Vice President Dick Cheney.
Sen. Jack Reed, D-R.I., called Wellstone "a gallant man" who didn't mind if he was the sole vote on an issue he believed in and a devoted husband who helped to write the Violence Against Women Act. While Wellstone's liberal views were at odds with those of many of his colleagues, he was widely liked for his unrelenting commitment to those who could not advocate for themselves, Reed said.
Wellstone leaves two sons, David and Mark, as well as six grandchildren. Funeral arrangements were incomplete Friday night.
"We'll miss you, Paul," Kennedy said as he visited Wellstone campaign headquarters, trying to console workers. "And we'll never forget you."
Men are regularly 'profiled' in domestic violence cases
Sentinel & Enterprise (Fitchburg, MA)
November 1, 2002
https://infoweb.newsbank.com/
I read with some amusement the protestations of Ed Cronin, the Fitchburg mayor's choice for Police Chief, regarding the Steve Basile study of domestic abuse protection orders in Gardner District Court ("Fathers rights: Group fights to help divorced dads," Oct. 26).
For a law enforcement officer who presumably understands the importance of civil rights and equal protection of the law and is sensitive to profiling, his remarks are puzzling.
"The bottom line of domestic violence is 'power and control,' and in most relationships it is the man who has power and control," Cronin says.
At a time when Americans are wrestling with the fairness of ethnic and racial profiling, the most blatant and pervasive form of profiling - gender profiling - is not only ignored, but actually applauded and promoted. It's also rewarded with billions of dollars of taxpayer money through legislation and programs such as the Violence Against Women Act.
Cronin actually brags about his traveling around the world and into local classrooms extolling the virtues of gender profiling. He calls it his "signature issue."
Battered women's advocates have publicly questioned the validity of Basile's study. Indeed, the scientific methodology may appear foreign to them, since they have made a "science" out of battering the truth, abusing the public trust, and controlling the discussion by producing thousands of agenda-driven studies that rely on "creative" social science methodologies.
Battered women's advocates have progressed from the time they practiced censorship by omission - as they did when they completely ignored half of the findings of the seminal domestic violence research from the '70s that spawned the "A woman is battered every 15 seconds" sound bite - to the outright censorship-at-the-source of the present day.
In the original studies, it was found that women are just as likely to initiate domestic violence against their male partners. Today, battered women's advocates correct this problem at the source by specifically preventing any federal funding for domestic violence research that includes male victims of female aggression. This was publicly revealed at a seminar given at Mount Wachusett Community College by Denise Gosellin, a domestic violence criminologist and author of "Heavy Hands."
The same pattern was evident in the history of Basile's research study, where the battered women's advocates bullied their friends in the Statehouse to change Massachusetts' version of the Freedom of Information Act, the Public Records Law. Now people like Steve Basile and the Fatherhood Coalition are specifically prohibited from gaining access to the court records of alleged "victims" of domestic violence.
Cronin says that when women are violent many times it is out of self-defense, or they have been in a long-term abusive relationship. The notion that men may in fact be defending themselves when they are charged with domestic violence, or that the woman may simply be lying is never considered.
Valid data about the true scope and nature of domestic violence is extremely hard to come by since the issue has been politicized and perverted beyond recognition. For example, numbers of female victims are artificially inflated by requiring accused "batterers" to admit guilt in order to stay out of jail. Men charged with a violation of any domestic restraining order (even simply a 'no-contact' order) are required to enter a so-called "batterer's intervention program," where the first order of business is to compel the "batterer" to sign a lengthy document admitting guilt. Refusal to sign means rejection of admission into the program, which means jail.
Here's how our state's judges are taught to evaluate conflicting testimony from "victims" and "abusers," courtesy of batterer's intervention program training materials:
"Batterer's are skilled manipulators, and thus can learn to give all the right answers playing the role of someone who is developing tremendous insight into the abuse problem."
"Partner's (or spouses') accounts of physical abuse are usually the most reliable and accurate sources of information about the perpetrator's level of violence."
It should be apparent to anyone with common sense what is going on here. Men always lie - even when they are admitting guilt! - and women never lie. Hence mandatory arrest and no-drop policies, which Chief Cronin undoubtedly champions. This is truly an Orwellian nightmare for fathers accused of domestic violence in a divorce trying to keep their children.
Battered Women's Resources subscribe to a victim-feminist ideology that holds relationships between men and women are based on power; that men employ "male privilege" and use physical force to control women. This is a hate-filled ideology that has done far too much damage to families and relationships between men and women.
We believe that relationships between men and women are based on love and reciprocity. The Fatherhood Coalition was formed out of love - the love and anguish felt by dads who lost their children because of the divorce/domestic violence regime that holds sway in Massachusetts probate and family courts.
The road to hell is paved with good intentions. But we love our children, and we will no longer sit idly by while battered women's advocates like Ed Cronin trample the civil rights of men under the pretense of serving some higher good.
MARK CHARALAMBOUS, Leominster
Editor's note: Charalambous is spokesman for The Fatherhood Coalition.
Appeal in Gun Case Dismissed
Court rejects ex-councilman's claims that rights were violated
Salt Lake Tribune, The (UT)
November 16, 2002
https://infoweb.newsbank.com/
A federal appeals court Friday dismissed the claims of a one-time Blanding city councilman who had argued that his conviction on a federal firearms charge violated his constitutional right to bear arms.
But the 10th Circuit Court in Denver upheld a counter-appeal made by federal prosecutors who argued that a judge was too lenient in sentencing Randee Lee Bayles,
and remanded the case for a new sentencing hearing.
In February 2001, Bayles pleaded guilty to possessing firearms while under a protective order filed by his ex-wife, a violation of the Violence Against Women Act.
The protective order had been filed in 1999 by a judge in San Juan County's 7th District Court. Bayles later told an undercover federal agent that he owned about 100 hunting rifles and about 80 handguns and needed to hide them because of an "order his ex-wife had obtained," court documents said.
A federal judge sentenced Bayles to 24 months of probation, saying Bayles had received poor legal advice and was unaware that federal law prevented him from owning guns while the subject of an active protective order. The crime carried a potential 2-year prison sentence.
Bayles appealed his conviction, claiming the law violated his Second Amendment rights.
Meanwhile, federal prosecutors appealed the light sentence, saying the judge had abused his discretionary powers in leveling Bayles' punishment.
While dismissing Bayles' appeal, Friday's decision upheld the government's claim, and sent the case back to U.S. District Court in Salt Lake City for re-sentencing.
"In order to establish a violation under the Second Amendment, one must establish [that] he is part of a state militia," Circuit Judge Robert H. Henry wrote on behalf of the unanimous three-judge panel. "Prosecution for possessing a gun while under a state court protective order [does] not violate Second Amendment rights."
In response to prosecutors' claims that the sentencing judge erred, the court said: "We agree with the government that the district court abused its discretion."
Earlier this year, the Utah Supreme Court dismissed a separate appeal by Bayles, which had asked that the protective order be tossed out because his ex-wife had not adequately proven he was stalking her.
