Clinton's America / Daughtrey, Shanahan, Barkett & Gertner
Eastland, Terry
Daughtrey, Shanahan, Barkett & Gertner by Terry Eastland / n September, the New York Times reported that President Clinton might nominate some lower court judges who disagree with Roe v. Wade and...
...And how will he speak of the justices above, whose rulings as a district judge he is obligated to enforce...
...The sins judges have committed in the name of substantive due process are legion...
...While the political coordinates are such that this could occur in the case of Wyoming, where, both senators being Republican, a pro-life Democratic governor is promoting the candidacy of an anti-Roe Democratic lawyer, don't expect it to happen often, or even occasionally...
...Shanahan dissented, arguing that the Nebraska constitution' s search-and-seizure provision should be read to prohibit what the Fourth Amendment to the federal Constitution—as currently interpreted by the Supreme Court in its "open fields" doctrine—allows...
...Interestingly, one of Gertner's clients was a woman indicted for vehicular homicide in the drunken-driving death of her eight-anda-half-month-old unborn...
...she was convicted under a city ordinance of loitering for the purpose of prostitution...
...As for judicial doctrine, Barkett rides the standard activist horses...
...As a district judge, will Shanahan construe the Fourth Amendment more broadly than the, well, Pavlovian judges on the lower federal bench...
...This is sentiment worthy of Thurgood Marshall, who dissented more than 1,400 times in death penalty cases, on grounds that capital punishment is always in violation of the Eighth Amendment's ban on cruel and unusual punishment...
...Barkett's court affirms the sentence...
...remarks she made last year at Harvard suggest she believes that sexual partners must explicitly consent to the act before engaging in it, or else the police should appear...
...Question for Gertner and other Clinton nominees: Do you believe in your president's remark that abortion should be safe and legal but rare...
...If I had to choose only among those presented," she added, "I would choose the plan submitted by the NAACP simply because this is the organization that had traditionally represented and promoted the position that advances all minority interests...
...Having recognized a variety of pew causes of action, Shanahan is apparently a payback (one of many to come) to the nation's trial lawyers, among the biggest of Clinton's campaign contributors...
...Ted Kennedy...
...It is therefore possible that an anti-Roe Democrat in either the Senate or a state could, in effect, pick a lower-court judge not to the liking of, well, the National Organization for -Women...
...If so, she might disappoint her White House sponsor(s...
...When these charges were dropped, Gertner, not one to pass up an opportunity for ideological comment, called it "a victory for reproductive rights...
...Daughtrey passes the activist Terry Eastland, editor of Forbes MediaCritic, is editor of Religious Liberty in the Supreme Court: The Cases That Shape the Debate Over Church and State, published this fall by the Ethics and Public Policy Center, where he is a fellow...
...How about the • amazing remark she made in a 1992 case in which her court chose from six different modifications to a state legislative redistricting plan...
...Where to start in relating what evidently brought her to the attention of Clinton and his judge pickers...
...Her reason: The caps violated the Fourteenth Amendment's equal protection clause...
...She has opposed every attempt by the Commonwealth of Massachusetts to regulate abortion...
...The fact that this claim [Anita Hill's] scuttled the nomination [Clarence Thomas's] or delayed the nomination helps the cause," she told Newsweek in the fall of 1991, "like nothing else...
...it may be used to punish entirely innocent activities...
...When called upon to construe the Nebraska constitution," he wrote, "this court should not exhibit some Pavlovian conditioned reflex in an uncritical adoption of federal decisions...
...Inasmuch as, for Daughtrey, this right encompasses the right "to avoid genetic parenthood," the party wanting to exercise this freedom and thus destroy the frozen embryos—in this case it was the father—must prevail...
...Gertner also has analogized the abortion right to the right to vote, as though both should be exercised often...
...p erhaps the most interesting, and likely the most controversial, of Clinton's early judicial choices is Rosemary Barkett, a former nun turned trial lawyer (another payback) and Friend of Reno (as in Janet), now a justice on the Florida Supreme Court...
...Gertner has yet to explain what she thinks remains of the modern right of privacy, which presumably would foreclose such regulation but which she embraces in the abortion context...
...Suffice to say, she used a standard for review that, if widely employed, would lead judges to invalidate just about any statute they might personally disagreewith...
...A few of these nominees—Barkett could be the first—might not make it to the bench, especially if they are seen for what they are...
...In line for a district judgeship in Massachusetts is Nancy Gertner, a Yale Law School classmate of Hillary Rodham Clinton's who has been recommended to Clinton by Sen...
...On appeal to the Florida Supreme Court, the ordinance was struck down as unconstitutional...
...Barkett's plurality opinion said the law, because it could potentially punish such innocent conduct as "hailing a cab or a friend," was "overbroad," and thus in violation of the First Amendment...
...She alone dissents...
...Gertner would seem to have done well by the cause...
...Daughtrey wrote for her court last year in the Brave New World case of Davis v. Davis, in which a divorcing couple litigated who had rights to their jointly produced "frozen embryos," on storage in a fertility clinic...
...That is why the ballot box remains the most effective recourse for those who oppose the arrival of Clinton's America in the seats of judicial power...
...Dissenting in part in a 1992 death penalty case, Daughtrey wrote: Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment...
...As explained by White House spokespersons, the reason Clinton might pick an anti-Roe or even Roe-indifferent nominee involves the peculiar politics of judicial selection: Especially with district judgeships, the custom is for same-party senators or, if there are none of those, state and local party leaders to direct the president's choice...
...Then there is Barkett's dissent in a 1993 case in which the majority upheld statutory monetary caps on non-economic damages in medical malpractice cases...
...pro-Roe litmus test (endorsed by Clinton for his Supreme Court choices), and then some...
...Consider the Tampa street-corner case of Wyche v. State...
...M ore nominees from the firm of Daughtrey, Shanahan & Barkett are sure to come...
...My favorite Barkett opinion is her solitary dissent in LeCroy v. State (1988), in which the majority affirmed a death sentence for two brutal first-degree murders...
...Clinton's early nominees also include Thomas Shanahan, a judge on the Nebraska Supreme Court now headed for a district court seat...
...If so, it was not the first time she has played the role of the modern activist judge—almost to the point of parody...
...She screams, the defendant stabs her to death, for which act he is convicted and sentenced to death...
...Doing to these provisions approximately what Justice Harry Blackmun did to similar parts of the federal Constitution in Roe, Daughtrey found lurking therein a generalized right of privacy that includes—her words—a "right of procreational autonomy...
...Consider this 1989 case: A man, breaks up with his girlfriend and two months later breaks into her home at night, bearing a knife...
...Because this was a case of interest to the state's trial lawyers, it bears noting that those attorneys have created an award in Barkett's name, given annually to, presumably, lawyers like her, Barkett cannot be accused of being insensitive to criminal defendants...
...In a 1986 case, for example, his court rejected the argument that evidence obtained through a warrantless search of "open fields" (and used to convict the defendant of growing marijuana) should not have been admitted...
...Shanahan also has been a reliable vote, often in dissent, for positions advocated by criminal defendants that stretch beyond reasonable interpretations of relevant law...
...Gertner speaks the language of a"lapsed" radical...
...This is called judging on the basis of the party, not the merits—a no-no on any proper reckoning of what it means to be a judge...
...Gertner seems to have embraced the view that most consensual sex is rape...
...The defendant was 17 years and ten months old when he committed the crimes...
...Political liberals immediately expressed their opposition to any judicial selection process that might deviate from their pro-abortion rights orthodoxy...
...Because the defendant was "surprised" by the presence of the soon to-be victim—the trial court found the murderer had not expected anyone to be home—the death penalty was a disproportionate-sentence...
...The Tennessee constitution protects freedom of worship, prohibits unreasonable searches and seizures, and guarantees freedom of speech...
...she told the Boston Globe last year that the number of calls she received about sexual harassment doubled after the Hill-Thomas hearing and the value of settlements she negotiated tripled...
...A civil rights and criminal defense attorney, Gertner is said to often describe herself this way: "I'm not a liberal, I'm a lapsed radical...
...Still, most of them will be confirmed, because Democrats control the Senate...
...One of her first cases saw her defending Susan Saxe, the anti-war activist who was involved with her roommate, the recently captured Katherine Anne Power, in the shooting death of a Boston policeman in 1970...
...Consider Martha Craig Daughtrey, a justice on the Tennessee Supreme Court (and Friend of Gore) whom Clinton has nominated for the Sixth Circuit Court of Appeals...
...If Barkett is willing to invoke substantive due process in a case like this, it would seem she might use it anywhere to reach any decision she believes is right—which, of course, is the point of having this hoary doctrine around...
...And speaking of abortion, Gertner appears to believe that the abortion right should not be limited—not even in the final weeks of a pregnancy...
...When Gertner's name surfaced last summer as a likely judicial nominee, she told the Globe that what some see in her as an advocate may not be present when she dons the robes of a judge...
...How Barkett reached this conclusion is too convoluted to describe here...
...The odds are, however, that she won't, no more than any of the other leftward judges Clinton is promoting...
...Daughtrey may have been auditioning for the seat of the aging Blackmun, whom court watchers expect to retire soon...
...Barkett, however, said that to impose the death sentence on a "child"—even one two months shy of 18, even one the trial court had deemed mentally and emotionally mature—was barred by both federal and state constitutions...
...A woman wearing little attire waved to passersby before entering a car that stopped to collect her...
...Putting to one side how any ordinance aimed at regulating disorderly conduct could survive under Barkett's reasoning (courts typically require a statute to be of "substantial overbreadth" before voiding it), the most striking feature of her opinion is a statement that the ordinance "violates substantive due process because...
...Daughtrey, Shanahan, Barkett & Gertner by Terry Eastland / n September, the New York Times reported that President Clinton might nominate some lower court judges who disagree with Roe v. Wade and its radical teaching that the Constitution protects a woman's right to choose abortion...
...The former girlfriend, rearing a night like this, is gone, but her roommate, alas, is not...
...The sentencing judge noted LeCroy's youth but found him mentally and emotionally mature, and thus proceeded, as Florida law provides in cases in which a child of any age is charged with a capital crime, to try and handle the defendant "as if he were an adult...
...Indeed, the more important story line—yet to receive A-I notice in the Times or anywhere else—is the extent to which, thanks to Clinton, firebrands of the legal left are now making their way to the lower federal bench...
...Barkett said she was "loath to agree to any of the convoluted plans submitted under the hurried circumstances...
Vol. 26 • December 1993 • No. 12
