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JIM LEHRER: Now, two perspectives on all of this. Sen. Orrin Hatch, Republican of Utah, is chairman of the Senate Judiciary Committee. Lloyd Cutler served as White House Counsel during the Carter and the Clinton administrations. Lloyd Cutler, is there any question that outside pressure, that all of this–all of these complaints caused Judge Baer to reverse his decision?
LLOYD CUTLER, Former White House Counsel: I don’t think that’s really true. The temptation is to think he gave in to public criticism. But he’s a very conscientious judge. I’ve read both of his opinions, and I’ve read the Justice Department’s petition for reconsideration. I agree he was probably wrong the first time, but the second time around, the Justice Department came in with much stronger evidence as to what had happened to give the basis for a so-called reasonable suspicion that that car should be searched, and I prefer to believe that independent judges make conscientious decisions and that Judge Baer made two.
And in the second one, he changed his mind because the balance of credibility shifted in favor of the government and the government’s witnesses, and he also went out of his way to apologize for the criticism he had made of one of the policemen, the only one who testified the first time, saying that, that he had doubted that man’s credibility and he was sorry about that.
JIM LEHRER: Senator, what do you think? Do you think the criticism from you and others caused Judge Baer to make the reversal?
SEN. ORRIN HATCH, Chairman, Senate Judiciary Committee: (Capitol Hill) Well, I don’t think the reversal would have occurred but for the criticism, but I would prefer to agree with Lloyd Cutler on this, that judges have a right to review their decisions and, and there’s no question in my mind he made a terrific mistake the first time and his gratuitous comments that these people had–it would have been unusual for them not to have run after they deposited the drugs because of, of the police reputation for brutality and, and correction in that area, it was a slander to everybody in–or libel, I might say–to everybody in the Washington Heights section, plus the policemen as well. But the point here is not that Judge Baer should be thrown off the bench because he makes one wrong decision. Frankly, I don’t–I would, I would fight to keep him on the bench because we have to have an independent judiciary in this country.
The point is, is that frankly, a lot of the people that are being appointed are just softer on these issues because they are more liberal than the Republican judges that have been appointed in the past, although I can point out, and I did last Friday, some Republican judge failures as well.
JIM LEHRER: Do you believe, Senator, that–you agree with what President Clinton said today, that you and everybody else has a right to criticize any judge’s decision and nobody should stand back from that?
SEN. HATCH: Well, that’s why they write the decisions and opinions, is so we can know what the law is in accordance with their, their writings. On the other hand, they understand that those opinions are subject to criticism and through criticism, sometimes we can get judges to live within the law, rather than just making law from the bench. You know, these people are nominated and confirmed for life. They are not elected to these positions, so, therefore, they should be interpreting the laws as they are meant to be interpreted, and, and not making them from the bench as super legislators in black robes.
JIM LEHRER: LLOYD CUTLER, where do you draw the line between criticizing the judge’s decision and suggesting that because of a judge’s decision, as some people did in this case, suggested that he should either resign or that he should be impeached for having done this?
LLOYD CUTLER: Well, I would certainly draw the line so that asking a judge to resign or suggesting that the President demand his resignation is over the line and goes too far. Trying to impeach a judge because in good faith he made what many people believe to be an erroneous decision is over the line. You can only impeach for so-called high crimes and misdemeanors and just being wrong on a judicial or factual issue is not a high crime or misdemeanor.
But I do want to make the point in response to what my friend, Sen. Hatch, is saying, and he is my friend, that in 182 out of 185 appointments that President Clinton has made to the lower courts, that is, the district court and the court of appeals, they were unanimously approved by the Senate Judiciary Committee, including Sen. Hatch, and went through the Senate without even a vote, which can only be done with the approval of who–this happened on my watch–approval of Senator Dole as the Minority Leader.
The fact is that all of these judges, and Judge Baer, remember, had 10 years of experience as a federal prosecutor before he was appointed to the bench, all of these judges are sent–especially the district courts–are selected by the home state senators. Judge Baer happened to be selected on the merits. Sen. D’Amato signed a so-called blue slip saying he had no objection. And he went unanimously through the Senate Judiciary Committee.
He went unanimously through the Bar Association, which gave him its highest rating. He went through the vetting we did in the Justice Department and the White House. There was no way anybody could have told from his past record that he would have made that initial decision, and as Sen. Hatch has frankly admitted, there are Republican-appointed judges who have done the very same thing.
JIM LEHRER: So you reject the Senator’s complaint that President Clinton and Democrats tend to appoint judges who are softer on crime than Republicans?
LLOYD CUTLER: Well, he went along 182 out of 185 times.
JIM LEHRER: Sen. Hatch.
SEN. HATCH: Well, let’s just understand the way this, this thing plays out. Every one of those judges said when they appeared before us that they would not be activist judges, that they would not be substituting their own visceral feelings for what the law really is. And yet, we find with Democrat-appointed judges, whether Carter or, or Clinton, that they are softer on crime, they do look for more technicalities to let these people off and to find excuses for their inappropriate and criminal conduct. Let me give you an illustration.
There will be a report out in just a couple of days in the Fourth Circuit Court of Appeals where the rest of the Reagan and Bush judges have sided with the criminal defendants about 40 percent of the time protecting their constitutional rights. The two Clinton judges in this particular case have sided 86 percent of the time. That is happening all over this country.
And, frankly, if you look at judges like–let me give you an illustration–Judge Sarakin on the Third Circuit Court of Appeals and Judge Barquette down in, in the Eleventh Circuit Court of Appeals, both of whom we fought when they came up because they had activist records before they went on the bench. We weren’t able–we’re not always able to tell how a judge is going to rule in most of these cases, so we do approve what the President desires.
On the other hand, in those two cases, we had records of how activist they were and how much they ignored what the laws really say, and unfortunately, since they’ve been put on the bench, we fought them, we lost on the floor, since they’ve been on the bench, their activism has continued, and I criticized it last Friday in a rather lengthy speech where I felt that they went off the, off the wall in some of these criminal matters.
They’re not alone. As a general rule, the Democrat President-appointed judges are much more liberal, they are much more prone to make excuses for criminal defendants than Republican judges, although I think you can point to some illustrations on both sides.
JIM LEHRER: Yeah. LLOYD CUTLER, is that true?
LLOYD CUTLER: No, I don’t believe it is true. In the case of this Fourth Circuit Appointee, Judge Beatty, a very distinguished black judge in North Carolina, when he was appointed two years ago by President Clinton to the District Court, the appointment was warmly praised by Sen. Jesse Helms, who certainly is a litmus test of who’s soft on crime. Sen. Hatch’s attacks on Judge Beatty to go on to the Fourth Circuit have been criticized by virtually every newspaper in North Carolina.
I thought Sen. Hatch was going to refer perhaps to Chief Justice Warren and to Justice Brennan, one might say, in their defense of constitutional rights were “soft on crime,” whom President Eisenhower described as the two biggest mistakes he’d made in the White House.
JIM LEHRER: What is–how would you define, Lloyd Cutler–and then I’ll ask Sen. Hatch–how would you define soft on crime in a judicial sense? What does that mean to you?
LLOYD CUTLER: Well, I think it’s one of those phrases like– it’s like a motherhood phrase. It’s a catch word, soft on crime. The fact is we are a country of religious dissenters and smugglers and that’s why we have a Fourth Amendment against unwarranted searches and seizures.
Most of the people, granted, who, uh, make a Fourth Amendment defense and say something was illegally seized from them may turn out to be convicted in the end and are criminals in the end, but remember, there is a presumption of innocence, and there are many, many people who are indicted and tried who are acquitted.
And the Fourth Amendment exists for them. To say, for example, one can make a better case that “soft on crime” applies to Chief Justice Warren and to Earl Brennan and Thurgood Marshall than you can make for Judge Baer or Judge Beatty, or any of these other people, but I would think even Sen. Hatch would never suggest that they were not great interpreters of our Constitution.
JIM LEHRER: Sen. Hatch.
SEN. HATCH: I happen to believe much good was done in the Warren Court and certainly even by Justice Brennan, but I would define soft on crime judges like Judge Sarakin who found excuses in two cases of absolute murders, where there’s no question of guilt, where the law was clear and where it was proven without question, where he found excuses to try to get rid of the death penalty in both cases, or Judge Beatty.
Judge Beatty in the case where because one of the jurors went to look at the tree where the gun was lodged, Judge Beatty basically on at technicality like that, even though there was overwhelming evidence, other evidence that proved the defendant’s guilt would have done away with the guilt of that defendant in that particular case, or like Judge Barquette, who is down in the Eleventh Circuit Court of Appeals, found fault with road blocks for traffic violations and possible drug violations, even though in the rest of the country–
JIM LEHRER: Is this–
SEN. HATCH: –that’s permissible. Now, these are people that–soft on crime judges are judges that are always looking for excuses who believe that society is at fault, rather than the criminals, themselves, that we’ve caused these problems and that these poor people must be given compassion and consideration, even though they’re vicious, vicious criminals who commit murders and are selling drugs to our kids and ruining our kids’ lives.
JIM LEHRER: In a word, Senator, is this going to be an issue in the upcoming Presidential campaign?
SEN. HATCH: Well, it’s a big issue, because the next President of the United States is going to appoint at least two in my opinion and maybe three Supreme Court Justices. If President Clinton is reelected, he is going to be able to appoint up to 50 percent of the total circuit judges and probably 50 percent of the district court judges, and if that’s so, you can expect much more liberal judges on the court than you’ve got now.
JIM LEHRER: Big issue, Lloyd Cutler?
LLOYD CUTLER: I think the Republicans are going to try to make it into a big issue, but I think it’s a phony issue. I think the two Supreme Court appointments President Clinton made, for whom Sen. Hatch voted, are very distinguished appointments. They are not Justices who are soft on crime, and as I said–and something like 40 percent of the judges whom President Clinton appointed in 1995 were all former federal prosecutors, and I defy anybody to say that a former federal prosecutor is something likely to be soft on crime.
JIM LEHRER: We have to leave it there, gentlemen. Thank you both very much.