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Chief justice fights for her life on bench

Back in the 1960s, Rosemary Barkett, a fresh-faced Catholic nun who went by the name Sister St. Michael, staged a production of the Wizard of Oz with her students at Tampa's Most Holy Redeemer school.

Gene Heath, whose son played the Tin Man, remembers the scene well. McKay Auditorium was "absolutely packed" with eager parents, he recalls, and Barkett directed the play with gusto.

"She did an outstanding job of it," Heath says. "Everything (became) electric."

More than a quarter-century later, Rosemary Barkett is still causing sparks _ not as a nun, but as the first female chief justice on the state Supreme Court.

Having long ago traded her black nun's habit for the black robe of the judiciary, Barkett, 53, has built a reputation as a dedicated legal educator, an engaging personality and a champion of privacy rights.

But now she is under fire from conservatives who want voters to unseat her when she stands for a statewide merit retention vote in November. Many of Barkett's foes are upset about her opinions on abortion rights and the right-to-die issue _ an irony considering her Catholic background. Others claim she is soft on crime.

"I don't think Rosemary Barkett reads the law, I think she proofreads it right after she writes it," says Timothy Warfel, a Tallahassee lawyer who is executive director of Citizens for a Responsible Judiciary, one of Barkett's chief adversaries.

Nonsense, say her supporters. "Rosemary Barkett has never voted on a case or authored an opinion that she didn't . . . firmly believe that's what the law said," says retired Supreme Court Justice James Adkins. "She is not the type of person as a judge or justice that tries to impose her personal philosophy on anybody."

Barkett is campaigning aggressively to keep her place on the court. She has raised some $270,000 in her retention campaign, most of it from lawyers. Significant support also has come from women, campaign manager Mary Jane Gallagher says.

Is gender an issue in the campaign? Barkett's foes hotly deny it is. "Judge Barkett's reasoning, not her gender is what is at issue . . .," declares the Florida Right to Life Political Action Committee.

But Barkett's supporters do not dismiss the issue out of hand. Gallagher doesn't think it's the No. 1 issue. But she says many of the same people opposing Barkett fought two years ago against the retention of then-Chief Justice Leander Shaw, the only black jurist on the court. "There have been those who have questioned in fact whether there is racism and sexism involved in this. I hope not, but I have no meter by which to judge that," she says.

Barkett points out that many of the legal opinions at issue in her campaign were unanimous or written by male justices also on this year's ballot. (Also up for a retention vote are justices Ben Overton, Major Harding and Parker Lee McDonald.)

"I think people have to draw their own conclusions," Barkett says. "When you fall in the same category as the male members of the court in so many particulars, why then are they attacking the only woman up for retention?"

Rosemary Barkett was born in 1939 in Ciudad Victoria, Mexico, a provincial capital in the foothills of the Sierra Madre Oriental. She was 6 when she came to Florida, 18 when she became a naturalized citizen.

Barkett's parents had come to Mexico from Syria, planning Ciudad Victoria as a stop to America. The "Barakats," as the family was known there, wound up staying in Mexico for about 20 years, her father working first as a peddler and later owning a small department store in town.

"They started at the bottom," Barkett says. "By the time I was born, they were in the upper echelon. . . . Then when they came to this country they started all over again."

In Miami, Barkett's father opened a grocery store, then bought avocado groves, a business her brother now runs.

The family remains close. Barkett was at her sister Chati's house in Dade County the weekend of Hurricane Andrew. "She really saved my father's life," Chati says, recounting how Barkett spirited the 93-year-old man out of a bedroom moments before the windows blew out.

Barkett was 17 when she became a nun, 26 when she left the convent. She says she maintains contact with her former order, but religion is not a subject that makes her loquacious. "I believe we all have an obligation to look out for one another and not do anything that hurts anybody else," she says.

Barkett entered the convent, she says, because "I thought God wanted me." And her decision to leave? "I just decided at some point that God wanted me to do something else," she says.

"In the '60s there were all kinds of things (happening in the social arena). . . . We were constrained _ we could only teach."

Barkett graduated summa cum laude in 1967 from Spring Hill College in Mobile, Ala., where she studied education and English literature.

Law school was a choice that evolved with time, spurred in part by curiosity about the world around her, she says. "People would put a contract in front of you, and for somebody who had lived in a fairly sheltered life, I said, "What is this all about? What does this mean?' And you want to know."

If her decision to pursue law wasn't planned from an early age, her rise in the profession was meteoric nonetheless. After graduating from the University of Florida Law School in 1970, she worked for eight years in general trial practice in West Palm Beach. Then from 1979 to 1985 she was appointed to a succession of judgeships _ first to the 15th judicial circuit, where she rose to chief judge in 1983, then to the Fourth District Court of Appeal, and, in 1985, to the Florida Supreme Court.

Along with career success has come financial well-being. Barkett listed net worth of nearly $1.5-million in a December 1991 financial disclosure form. In 1989 she won $500,000 in a suit in which she and two former law partners claimed part of a multimillion-dollar verdict won in the late 1970s by another former partner.

She is philosophical about the switch from the religious to the legal life. "I know it sounds better to say I had a lot of things all planned out, but. . . . It's not the way my psyche works somehow. I mean, I don't operate that way."

When Barkett isn't traveling on legal or campaign business, she keeps to a grueling regimen. She rises at 5:15 a.m., jogs three miles with neighbors, showers, cleans house and drives her Ford Explorer from her modest-size two-bedroom Tallahassee home to her office.

Among her pastimes, Barkett mentions tennis ("I'm getting good"), foreign travel (she talks wistfully of Sicily and Rome), and quiet weekends cooking rice dishes and Arabic food.

"Is she some straight-laced judge? No, she's not," proclaims Rep. Lois Frankel. "I think she's a very fun-loving person. . . . Every once in a while, we go to scary movies together. We go in groups. We usually pick up a few of the women legislators and go out."

Barkett is not married. Asked why, she responds first with a joke _ "the last guy who asked me I didn't think was going to be the last guy" _ then more seriously: "Developing a relationship takes an enormous amount of effort and time. Do you want to see my calendar?"

Death-penalty cases take special attention _ and, it appears, an emotional toll on Barkett. Pointing to a tall stack of folders in an anteroom of her office, she says, "The red files are death cases. Blue files are lawyer disciplinary cases. . . . You know if there are a lot of red files it's not a happy week."

Barkett's friends and professional colleagues hold similar views of her _ that she is an energetic justice who keeps her caseload under control, a warm-hearted individual with a good sense of humor, a jurist who is smart and strong-willed.

Adkins remembers Barkett as a tough bargainer on Supreme Court opinions, one who would rather fight for her convictions than switch. "She's a hard compromiser," he says. "Usually she would prefer to dissent."

Parker Lee McDonald says of Barkett, "She's intelligent, she's friendly and she's warm . . ." Ben Overton says, "You know where she stands."

Daniel T.K. Hurley, chief judge of the 15th judicial circuit, says, "She is without a doubt the most energetic and dedicated person I think I have ever known."

Yet, Barkett has drawn her share of flak.

In a so-called "brief" filed "in the court of public opinion," the Florida Right to Life Political Action Committee claims Barkett has "enacted her personal opinions into law" and "shown contempt for the right to life."

The brief zeros in on two high-profile Barkett actions: In 1989 she joined a majority opinion, written by Shaw, that struck down the state's parental-consent law on abortion for minors.

In 1990 she wrote a landmark opinion that said permanently incapacitated people need not be subjected to forced feeding _ if there is a living will or prior wish expressed by the person. The decision was nearly unanimous, with Overton expressing partial dissent.

Florida Right to Life charged that Barkett "has shown contempt for the sanctity of life by effectively legalizing euthanasia" and "turned the "right of privacy' into a "license to kill.' "

Barkett defends the ruling. "Do you know what they say about the . . . case? That Justice Barkett legalized euthanasia in Florida and advocates the dehydration and starvation of people. I mean, that is ludicrous.

"The case simply stands for the proposition that people have the right to make medical decisions about their own lives with their own doctors," she says, "and that the government doesn't have the right to make those decisions for people."

Besides being attacked on abortion and the right-to-die issue, Barkett also has been hit on criminal cases involving drugs, pornography and the death penalty.

"I don't know of a single case in which Rosemary Barkett dissented in favor of law enforcement," says Warfel, of Citizens for a Responsible Judiciary. "If you're a basketball referee and every bad call you make goes against the visiting team, you're not just a bad referee, you're cheating for the . . . home team. In Rosemary Barkett's case, every bad call she makes goes down the side of the liberal agenda."

Warfel maintains his group is targeting Barkett only on criminal justice issues.

But Gallagher, Barkett's campaign manager, claims crime has become a red herring for the abortion issue in the retention fight.

"All the individuals involved in this extremist kind of campaign can be associated with either Florida Right to Life or the right-to-life movement," she alleges. "What they've decided to do is try to hoodwink the public."

That includes Warfel, she says. In 1990, when Justice Shaw was up for retention, Warfel "led the charge" against him because of his views on abortion, Gallagher alleges. Finding public opinion deeply divided on abortion, she claims further, Warfel's group has turned to the crime issue to muster support.

"If he tries another tag, another gimmick, he's hoping he's going to get lucky," Gallagher says.

Barkett, too, says she "absolutely" believes the retention opposition boils down to the abortion-consent ruling and other so-called "right-to-life" issues.

Warfel denies Gallagher's claim, saying it was "never true" that abortion was a primary or even secondary issue for his group, as it is for some others.

Warfel acknowledges that the 1990 abortion-consent ruling was a key element in his campaign against Shaw. But, Warfel says, "The only use we made of the abortion issue was the part of the (1990) case striking down parental consent for minors, and we focused on the effect that would have on the statutory rape statute and the child pornography statute."

When she isn't working on court business, Barkett is traveling the state to get her message out at fund-raisers, receptions and other gatherings.

"I no longer have any personal time," Barkett says. "I don't play tennis, I hardly run anymore, I don't have time to visit with my friends or my family because all of the (personal) time I used to have . . . is taken up by attempting to communicate to make sure the public understands the seriousness of the issue here."

In her view, it's not only her job but the independence of the judiciary that is at stake.

No Florida Supreme Court justice has ever been unseated in a retention race. If Barkett loses, the governor would appoint a successor based on recommendations from a judicial nominating commission.

But she remains confident she'll still be on the court after Nov. 3.

"I just have a lot of confidence in the people to understand the issues and to understand you cannot make a judgment because some people want you to agree with them in every single case," she says. "That's really what this whole thing boils down to."