[Congressional Record Volume 140, Number 104 (Tuesday, August 2, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 2, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                            MORNING BUSINESS

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                          JUDGE H. LEE SAROKIN

  Mr. DOLE. Mr. President, in the coming days, we are going to hear a 
lot of overheated rhetoric about how great the crime bill is, but when 
it comes to fighting crime, actions always speak louder than words.
  Yes, we can put more police on the streets. We can toughen the 
criminal laws. We can build more prison space. But these efforts, no 
matter how worthwhile, will quickly go down the crime-fighting drain if 
the Federal bench is dominated by judges who seek to expand the rights 
of criminal defendants and hamstring law enforcement in the process.
  One judicial nominee whose views did not square with President 
Clinton's tough-on-crime rhetoric was Judge Rosemary Barkett. Another 
such nominee may be Judge H. Lee Sarokin, who was recently selected by 
President Clinton to fill a vacancy on one of the Nation's highest 
courts, the third circuit court of appeals.
  In an article appearing in the West Virginia Law Review, Judge 
Sarokin suggests that the pre-trial and pre-conviction detention of 
those charged with violent crimes violates the ``presumption of 
innocence.'' If Judge Sarokin's views were to prevail, it appears that 
vicious criminals like the World Trade Center bombers would be free to 
roam the streets of our country at any and all times prior to their 
actual convictions. The Senate, of course, recognizes that pre-trial 
detention is an important public safety measure. And that is why we 
passed an anticrime bill last November that encouraged the States to 
adopt pre-trial detention laws for those charged with violent crimes.
  In the same West Virginia Law Review article, Judge Sarokin also 
takes aim at mandatory sentencing, insisting that ``mandatory and 
uniform sentencing * * * deprives judges of the right to grant mercy in 
those instances in which the facts cry out for it.'' And he argues for 
an air-tight exclusionary rule, even when the police act in a good 
faith belief that their search is lawful. The Supreme Court, of course, 
took a contrary view in the Leon decision, upholding a ``good faith'' 
exception to the exclusionary rule.

  Mr. President, not only is Judge Sarokin's soft-on-crime judicial 
philosophy a source of concern, his judicial temperament is a big issue 
as well.
  As a member of the Federal District Court in New Jersey, Judge 
Sarokin presided over a case in which several tobacco companies were 
the defendants. During the trial, Judge Sarokin's bias against the 
defendants was apparently so blatant and so well-publicized that the 
third circuit court of appeals took the extraordinary step of actually 
removing him from the case. Even the New York Times applauded the 
removal, saying that Sarokin had been ``far out of line'' and had 
``flunked an important test of credibility.''
  Mr. President, I have not made up my mind on the Sarokin nomination, 
and I will continue to examine his record carefully. But from what I 
see so far, it appears that Judge Sarokin will have a lot of explaining 
to do at his confirmation hearing tomorrow.
  Mr. President, I ask unanimous consent that the article from the West 
Virginia Law Review and The New York Times editorial be reprinted in 
the Record immediately after my remarks.
  There being no objection, the articles were ordered to be printed in 
the Record as follows:

                  [From the West Virginia Law Review]

                         Beware the Solutions!

                   (By the Honorable H. Lee Sarokin)

       I assume law schools still teach that a good lawyer is one 
     who recognizes the problem. But in this day and age I suggest 
     that the current generation should beware the solutions to 
     those problems.
       Although there is some dispute as to the existence of the 
     so-called litigation explosion, it cannot be denied that more 
     and more people are turning to the courts. It is popular to 
     suggest that increased litigation is caused by the growing 
     number of lawyers and their need to feed, clothe and shelter 
     themselves and their families; but I suggest that the real 
     reason is a general loss of faith in the other branches of 
     government to protect individual rights coupled with an 
     abiding confidence in the courts to protect those rights. 
     Despite the apparent low popularity rating of lawyers, more 
     and more people are turning to them for assistance. Providing 
     them this assistance is the challenge for this generation.
       The real danger is not what the lawyers are doing, but what 
     is being done to the law. The judicial system is blamed for 
     crime, for drugs, for abortion, for increased insurance 
     premiums, for illegal aliens, for excessive verdicts, for the 
     collapse of religion (no small accusation), for reverse 
     discrimination, for the spread of pornography and obscenity, 
     and for freeing the guilty. We are only responsible for about 
     half those things.
       The judicial system was not meant to cure all the social 
     ills of our society. It was created as a forum to resolve 
     disputes in a fair way and to protect rights in civil and 
     criminal matters. The system also serves to set standards of 
     conduct. We tend to forget that one of the purposes of tort 
     liability is deterrence--it discourages defective and shoddy 
     workmanship and negligent and harmful conduct.
       But look at the proposals--some of which have been adopted 
     already: Put people in jail before they are convicted; let 
     illegally obtained evidence be used if the officer meant 
     well; require judges to impose certain jail sentences even 
     though the particular case warrants otherwise; make lawyers 
     disclose how much they were paid by their clients and make 
     them give it back if the source was illegal; put a cap on 
     tort awards irrespective of the injuries sustained; test 
     everyone for drugs, even though they have never given any 
     indication that they ever indulged; and most recently, do not 
     tell the accused that they have constitutional rights because 
     they might exercise them. The law schools and in particular 
     the law reviews have a vital role to play in these areas.
       There is a strange tension in the law. All cases are 
     decided based upon precedent. That of course is necessary to 
     the stability of the law. How can lawyers advise their 
     clients if they cannot rely upon the continuity of the law? 
     On the other hand, the law is constantly being expanded and 
     even reversed. The news is filled every day with examples. 
     The press rarely reports that a previous decision has been 
     followed. Instead, the reports focus on changes, 
     reinterpretations, and reversals.
       Law reviews can serve us best if they analyze the changes 
     that are proposed either through court decisions or 
     legislation. Law review writers should make judgments as to 
     whether the proposed solutions are necessary and, more 
     importantly, whether they conflict with any of those 
     guarantees which we cherish as a society.
       If we want to live in a democracy, if we want freedom and 
     individual rights, society must pay a price. Every generation 
     must decide whether the price is too high. Many of society's 
     ills can be reduced or eliminated by a reduction in our 
     individual rights. Somebody once asked the president of a 
     famous car manufacturer why the industry did not make an 
     automobile that was totally safe--one that could not 
     injure the driver or passengers on impact. He said: ``We 
     have one. It's called a tank, but it would cost a million 
     dollars to buy it.''
       There are many remedies to our problems, but they likewise 
     are too expensive--not in terms of money, but in terms of 
     freedom. The future leaders of the profession and its present 
     spokespersons must decide and speak out as to whether the 
     expense is worth the remedy.
       Look at what is happening in the criminal area. We have 
     pretrial detention of the accused in direct contradiction of 
     the presumption of innocence. We have lawyers being forced to 
     disclose the source of their fees and run the risk of 
     forfeiture in direct opposition to the lawyer-client 
     privilege and the right to effective assistance of counsel. 
     Mandatory and uniform sentencing is in the wings depriving 
     judges of the right to grant mercy in those instances in 
     which the facts may cry out for it.
       And now the Justice Department calls for a retreat from 
     Miranda. What is the rationale? The Justice Department cannot 
     abolish the fifth amendment, so it proposes not to tell the 
     accused that privileges exist for fear that if an accused was 
     made aware of his constitutional rights he might exercise 
     them. Who will this affect? Certainly not the inside traders, 
     the elected officials, or other white collar persons charged 
     with crimes. Rather it will affect the poor and uneducated, 
     and perhaps even the innocent.
       So what we, as individuals and as members of the legal 
     profession, must decide is whether discovering and convicting 
     criminals is more important than the constitutional rights 
     that were created to protect everyone. Crimes would certainly 
     be solved more quickly, and possibly more convictions 
     obtained if we did not have to worry about the fourth and 
     fifth amendments. But is that a result worth achieving? Is 
     the cost too great?
       The same analysis is necessary in connection with the drug 
     problem. Indeed, it is closely related to the growth of 
     crime. What price are we willing to pay in order to find out 
     who is using drugs? Illegal handguns are used in robberies 
     and murders every day. Would we think of searching every 
     house and apartment in a large city to find and confiscate 
     them? We probably would find a number of robbers and 
     murderers in the process. The reason we do not do this is 
     because the price is not worth it. As a free society, we 
     have decided that it is more important to be protected in 
     our property and persons than to find criminals. If we 
     searched everyone or every house to find the guilty, we 
     undoubtedly would be successful; but we cannot judge the 
     worth of the Bill of Rights by considering what the 
     benefits would be if its guarantees were not enforced. 
     Those guarantees are invaluable, even though they may 
     protect criminals and interfere with investigations and 
     convictions.
       Drugs are a menace. They are devastating our country. They 
     cause crime, affect productivity, and seduce our children. We 
     can help or discipline the users if we can identify them. So 
     should we surrender our rights of privacy or our rights 
     against unreasonable search and seizure and attack this 
     cancer, or should we insist upon the preservation of our 
     rights no matter how just the cause or great the need.
       I suggest that the legal profession not look to public 
     opinion for the answer. The will of the majority is not the 
     guide here. The Bill of Rights is peculiarly necessary to 
     protect minorities and minority viewpoints. The politicians 
     can look to the polls for guidance; the legal profession 
     should not and, indeed, cannot.
       The greatness of our judicial system is that its decision 
     need not be popular. We could combat crime by concealing the 
     fifth amendment from the accused. We could discover the drug 
     user by invading his privacy. We could protect the public by 
     keeping accused criminals incarcerated before trial despite 
     the presumption of innocence. We could track ill-gotten gains 
     by forcing lawyers to disclose the source of their fees, 
     despite the effect on the lawyer-client privilege and an 
     accused's right to counsel. We could limit recovery of 
     injured parties even though it would deprive them of what 
     they need to survive. We could use illegally obtained 
     evidence to convict, if we no longer wished to deter police 
     lawlessness.
       All of these suggestions and solutions need exposition. 
     They require a balancing of the highest order. My bias is 
     reflected in the way that I phrase these questions, but it 
     need not be yours. Re-examine what is old; and, if you 
     believe that it is no longer valid, urge its change. 
     Challenge what is new and proposed if you believe that it 
     destroys rights and principles worth saving. Law reviews 
     serve an important function when they summarize the law in a 
     particular area, but they are at their best when they enhance 
     the law or defend against its encroachment where necessary. 
     Think of the valuable insight that can be given on pretrial 
     detention, retention of the Miranda rule, mandatory 
     sentencing, the legality of drug testing in the public and 
     private sector, surrogate mothers, restrictions on 
     advertising as now proposed regarding cigarettes, all of the 
     ramifications of liability involving the cigarette industry, 
     and tort reform in general.
       When the law is changed by decisions or legislation so as 
     to affect individual rights, our spirits should soar! We 
     should not feel a gnawing doubt in the pit of our stomachs. 
     If a change has occurred or is proposed with which you cannot 
     agree, then use your training, your wisdom, your pens (or now 
     more probably word processors) to speak out.
       The law is under siege. Join with the revolutionaries if 
     you think the attack is warranted but mount the bastions to 
     defend it if you think it is not.
                                  ____


               [From the New York Times, Sept. 10, 1992]

                 Topics of The Times; Justice Beclouded

       When Judge Lee Sarokin of U.S. District Court in New Jersey 
     issued a key ruling against tobacco manufacturers in 
     February, he began with a thorough denunciation of the 
     industry. He declared that ``despite some rising pretenders, 
     the tobacco industry may be the king of concealment and 
     disinformation.''
       That may be so, but the judge was far out of line to say 
     it. He had been assigned to preside over an eventual trial on 
     the very issue he opined about so colorfully: whether 
     cigarette makers had conspired to withhold information about 
     the dangers of smoking. The U.S. Court of Appeals rightly 
     pulled the judge, able and hard-working as he is, off the 
     case.
       Even with its record of slick marketing and efforts to 
     smokescreen evidence that cigarettes kill, the tobacco 
     industry is entitled to a judge who has not given the 
     appearance of strong feelings that go to the merits of its 
     lawsuit.
       Judge Sarokin had been asked to decide whether certain 
     industry documents must be produced over the industry's 
     objection that they are private legal papers. The judge could 
     compel their disclosure if they showed fraud. Since fraud was 
     also the central issue in the lawsuit, he had to be 
     especially careful in issuing his ruling.
       Instead, on his opinion's first page, Judge Sarokin charged 
     that: ``All too often in the choice between the physical 
     health of consumers and the financial well-being of business, 
     concealment is chosen over disclosure, sales over safety, and 
     money over morality. Who are these persons who knowingly and 
     secretly decide to put the buying public at risk solely for 
     the purpose of making profits and who believe that illness 
     and death of consumers is an appropriate cost of their own 
     prosperity!''
       That was powerful stuff, which generated news across the 
     country. But with it, Judge Sarokin flunked an important test 
     of credibility. Granted that the defendants have long wished 
     for a different judge, they are entitled to just that rather 
     than one who has put his own impartiality in question.

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