[Congressional Record Volume 140, Number 128 (Wednesday, September 14, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: September 14, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
           STATMENT ON THE NOMINATION OF JUDGE H. LEE SAROKIN

  Mr. BRADLEY. Mr. President, President Clinton has nominated Judge H. 
Lee Sarokin, a distinguished jurist on the U.S. District Court for the 
District of New Jersey, to become a judge on the U.S. Court of Appeals 
for the Third Circuit. Judge Sarokin has received a unanimous well-
qualified rating from the American Bar Association [ABA], the highest 
rating possible. He has been an extremely effective jurist on the 
district court. His decisions have yielded a body of caselaw that is 
based on adherence to the Constitution and the rule of law. For 
example, of the over 2,000 written opinions issued by Judge Sarokin, 
approximately 50, or less than 3 percent, have been reversed or vacated 
on appeal. At least two of the reversals occurred when legislation was 
subsequently changed as a result of his rulings. In addition, two of 
the reversals were themselves reversed by the U.S. Supreme Court.
  The New Jersey law enforcement community supports Judge Sarokin's 
nomination to the third circuit. Frank Ginesi, president of the New 
Jersey State Policeman's Benevolent Association, the largest police 
organization in New Jersey representing over 30,000 police officers, 
supports Judge Sarokin's confirmation to the third circuit. Also, David 
Blaker and Thomas Little, presidents of the State Troopers Non-
Commissioned Officers Association and Local 105 of the New Jersey State 
Policeman's Benevolent Association--representing over 5,000 
correctional officers--respectively, have endorsed Judge Sarokin. In 
addition, the Bergen County Police Conference, the State Troopers 
Fraternal Association of New Jersey and the Police Foundation have 
expressed their support for Judge Sarokin's elevation to the third 
circuit.
  Moreover, prosecutors who have worked with Judge Sarokin every day 
for years are supportive of the nomination. Four former U.S. attorneys 
for the District of New Jersey--William Robertson, W. Hunt Dumont, 
Michael Chertoff, and Herbert Stern--have endorsed the nomination. 
William Robertson served as the U.S. attorney under the Carter 
administration, while Herbert Stern, Hunt Dumont, and Michael Chertoff 
served under the Nixon, Reagan and Bush Administrations, respectively. 
Michael Chertoff, who recently served as the special minority counsel 
in the Whitewater hearing, states that ``[b]y intellect, temperament 
and experience, H. Lee Sarokin is highly qualified to sit on the United 
States Court of Appeals.''
  A broad cross-section of the leaders of the New Jersey legal 
community have endorsed Judge Sarokin's nomination with enthusiasm. 
William McGuire, president of the New Jersey Bar Association, and 
Thomas Curtin, the immediate past president of the New Jersey Bar 
Association, have proclaimed their support for Judge Sarokin. Also, 
Gerald Eisenstat, a past president of the New Jersey Bar Association, 
and Vincent Apruzzese, another past president of the New Jersey Bar and 
a former member of the board of governors of the American Bar 
Association, have endorsed the nomination of Judge Sarokin.
  Judge Sarokin is held in high regard by his fellow judges in the 
third circuit. According to Judge Leonard Garth, a Nixon appointee and 
a senior judge on the third circuit who has known Judge Sarokin for 
over 14 years, Judge Sarokin has throughout his career ``exhibited the 
compassion, the resourcefulness, the intelligence, the `heart' and the 
fairness that are hallmarks of an outstanding jurist.'' In addition, 
every living former chief judge of the third circuit--Judge Ruggero J. 
Aldisert, Judge John Gibbons, and Judge Leon Higginbotham--has praised 
the exceptional judicial performance of Judge Sarokin.
  Former Chief Judge Aldisert has written that Judge Sarokin is ``one 
of the most outstanding district judges in the Third Judicial Circuit--
[a] true scholar, but at the same time a genuine humanitarian, 
constantly in the quest for justice for the parties who appear before 
him.'' Former Chief Judge Gibbons, a Nixon appointee who is presently a 
Professor of Law at Seton Hall Law School, stated that Judge Sarokin 
``would bring both intellectual strength and needed ideological 
balance'' to the Court of Appeals. In addition, former Chief Judge 
Higginbotham notes that Judge Sarokin is ``thoughtful, fair and 
impressive.''
  Many highly respected members of the academic community support Judge 
Sarokin's elevation. Prof. George Priest of Yale Law School, who 
testified in support of former Judge Robert Bork during his 
confirmation hearing, states that ``Judge Sarokin is among the very 
first rank of federal judges [whose] most important quality is what I 
would call a deep judiciousness, consisting of a combination of 
seriousness, a commitment to making sense of the law, and a devotion 
above all else to fair treatment of the parties to the litigation.'' 
Prof. Owen Fiss of Yale Law School echoes the sentiment of his 
colleague by noting that ``Judge Sarokin's courtroom has become one of 
the temples of justice of this Nation.'' Moreover, Prof. Harold Koh of 
Yale Law School writes that Judge Sarokin is ``extraordinarily well-
qualified'' for elevation to the third circuit.
  Before being named to the Federal district court by President Jimmy 
Carter, Judge Sarokin was a partner and trial counsel in the firm of 
Lasser, Lasser, Sarokin & Hochman, which he joined in 1954. From 1959 
to 1965, Judge Sarokin serviced part-time as Assistant Union County 
Counsel. Judge Sarokin has taught real estate law at Rutgers Law School 
and is a frequent lecturer at Harvard, Yale, and other law schools. A 
graduate of Dartmouth College and Harvard Law School and the author of 
numerous scholarly legal articles, Judge Sarokin is known as one of the 
brightest judges on the Federal District Court for the District of New 
Jersey.
  I have known Judge Sarokin for over 20 years, and I agree with 
Professor Priest that Judge Sarokin's nomination ``will prove to be 
among this country's most distinguished judicial appointments of many 
decades.''
  In recent days, questions have been raised about Judge Sarokin's 
record with specific reference to several cases. I submit for the 
Record sections of a memorandum prepared by the Department of Justice 
about several of these cases.

 The Tobacco Litigation: Cipollone versus Liggett Group, Inc.; Haines 
                       versus Liggett Group, Inc.

       Judge Sarokin presided over a jury trail in which cigarette 
     manufacturer Liggett Group was found liable in the death of a 
     smoker. The jury awarded the family $400,000 in damages. This 
     was the first suit of its kind lost by a cigarette 
     manufacturer. The jury found that the manufacturer had failed 
     to warn the pubic of the health risks form smoking. The 
     litigation was marked by a number of highly contested 
     disputes between the parties over discovery and the 
     production of documents.
       In two actions six years apart, the Third Circuit Court of 
     Appeals disagreed with Judge Sarokin's decisions in such 
     discovery disputes, and issued writs of mandamus to reverse 
     his judgments. In the second action, the Third Circuit was 
     also asked to exercise its supervisory powers to reassign 
     Judge Sarokin because the tobacco companies, felt he had 
     evidenced prejudice in the language of one of his orders. The 
     Court said that while it did ``not agree that [Judge Sarokin] 
     was incapable of discharging judicial duties free from bias 
     and prejudice,'' it would reassign the case in order to 
     preserve ``the appearance of impartiality.''Haines v. Liggett 
     Group Inc., 975 F.2d 81, 98 (3d Cir. 1992).


                                Analysis

       Writs of Mandamus. Issuing a writ of mandamus, although not 
     an everyday occurrence, is far from an earth--shattering 
     event. The cigarette manufacturers asked the Court of Appeals 
     to issue writs of mandamus on the discovery orders because 
     such orders are not appealable through the normal process. 
     During the fifteen years that Judge Sarokin has been on the 
     bench, the Third Circuit issued 31 writs of mandamus to 
     district Court judges. Even if Judge Sarokin was wrong on the 
     law--on these two motions out of hundreds decided during the 
     extremely complex tobacco litigation--his actions and the 
     writs of mandamus issued by the Court to Appeals were 
     ``typical of trial court error common in the day-to-day 
     supervisory experience of an appellate court.'' (N.J. Law 
     Journal, 10/5/92)
       Reassignment is much less common, to be sure. But the same 
     year the Third Circuit took action against Judge Sarokin, it 
     also reassigned Reagan appointee Judge Robert Kelly (E.D. Pa. 
     ) from asbestos litigation.
       Issues of Law. Judge Sarokin's critics have distorted the 
     language of the Third Circuit's opinions. The actual 
     discussions of Judge Sarokin's actions turn on close 
     questions of law. Both rulings involved relatively technical 
     questions of the standards and methods of review of 
     magistrates' decisions on discovery motions in particular 
     settings. In the first ruling, involving a protective order 
     against public disclosure of documents, Judge Sarokin has 
     interpreted a Supreme Court decision to require an expansive 
     standard of review because constitutional guarantees of free 
     speech were implicated. At least two Courts of Appeals had 
     reached the same conclusion. The Third Circuit, in a decision 
     in another case announced two months after Judge Sarokin's 
     decision, reached the opposite conclusion. Thus the Third 
     Circuit law Judge Sarokin is alleged by some critics to have 
     ignored did not exist at the time of this decision.
       In the second ruling, Judge Sarokin had, in reviewing the 
     magistrate's decision, considered evidence from a related 
     case. Although the Third Circuit, apparently addressing the 
     question for the first time, disagreed with Judge Sarokin's 
     approach, Judge B. Weinstein (E.D.N.Y.) endorsed it (Brooklyn 
     Law Review, 1993). Contrary to the allegations of Judge 
     Sarokin's critics, this was a close question.
       Judge Sarokin's Reassignment. Judge Sarokin was not 
     reassigned because of his rulings of law, on which reasonable 
     judges can and have disagreed, but because of his strong 
     critique of the tobacco industry's litigating strategy. In 
     fact, in announcing its ``most agonizing'' decision to re-
     assign Judge Sarokin, the Third Circuit stated unequivocally 
     that he ``is well known and respected for magnificent 
     abilities and outstanding jurisprudential and judicial 
     temperaments.'' Haines v. Liggett Group Inc., supra, 975 F.2d 
     at 98.
       The Court of Appeals did not hold that Judge Sarokin 
     abandoned ``even the appearance of impartiality,'' as Judge 
     Sarokin's critics have chosen to twist the opinion to say. 
     The Court stated outright that Sarokin could be fair in fact 
     and the only the appearance of impartiality was implicated by 
     his remarks. Ibid.
       In the action under review, Judge Sarokin had to decide a 
     technical question of attorney-client privilege, the so-
     called crime-fraud exception. He was asked to determine 
     whether documents otherwise protected by the privilege had 
     been generated as part of an effort to conceal facts about 
     tobacco from the public. Therefore, Judge Sarokin addressed 
     the degree of deceptiveness of the tobacco companies, since 
     it was directly relevant to the question presented, even 
     though it was also inevitably related to the issues to be 
     decided at trial.
       Judge Sarokin remarks came after years of reviewing 
     evidence in the tobacco litigation. No one alleged that his 
     views came from anything but the evidence, a fact that calls 
     into question the correctness of the Third Circuit's 
     disqualification order. Five of the six Circuit Courts that 
     had considered the question--including the Third Circuit, see 
     Johnson v. Trueblood, 629 F.2d 287 (1980)--had clearly held 
     that appearances of judicial bias originating in judicial 
     proceedings should not result in removal. These courts 
     recognized that in order to issues rulings, a judge must 
     develop views based upon the weight of the evidence 
     presented.
       In fact, the United States Supreme Court has recognized the 
     distinction between the appearance of bias originating in 
     judicial proceedings and bias that arises from extra-judicial 
     sources. Earlier this year, in Liteky v. United States, 114 
     S.Ct. 1147 (1994), the Court sided with the majority of 
     Circuit Courts, holding that although a judge may often 
     appear biased because of views developed from hearing the 
     evidence in judicial proceedings, removal is required only 
     when the judge ``display[s] a deep-seated favoritism or 
     antagonism that would make fair judgment impossible.'' 114 
     S.Ct. at 1157. Since the Third Circuit explicitly stated that 
     it did not doubt Judge Sarokin's actual ability to adjudicate 
     the case impartially, its decision in Haines v. Liggett most 
     likely could not survive the Supreme Court's decision in 
     Liteky.


                               Conclusion

       With respect to Judge Sarokin's removal in the cigarette 
     litigation, it should be noted that former Chief Judge 
     Aldisert, who wrote the decision to remove Judge Sarokin, has 
     stated that ``[t]he addition of Judge Sarokin [to the Third 
     Circuit] will bring a high degree of judicial strength 
     because of the respect he has earned among his peers, his 
     warmth and wisdom, and the solid contributions he will 
     make because of his magnificent and profound experience.'' 
     In addition, former Chief Judge Gibbons has stated the 
     following with respect to Judge Sarokin's performance in 
     the cigarette litigation:
       ``That industry [the tobacco industry] has pursued a ``take 
     no prisoners'' approach to product liability litigation. My 
     review of Judge Sarokin's work in connection with the 
     litigation in question has left me convinced, however, that 
     he acted with complete propriety throughout the litigation.''

     Kreimer versus Bureau of Police for the Town of Morristown


                               The Facts

       A homeless man challenged the Morristown public library's 
     regulations prohibiting those with poor hygiene and those who 
     annoy others patrons from using the library. Judge Sarokin 
     ruled that the library's policy infringed upon established 
     First Amendment rights and was unconstitutionally vague. 765 
     F. Supp. 181 (D.N.J. 1991).


                                Analysis

       Contrary to the allegations of his critics, Judge Sarokin 
     did not ``invent'' a new right. The third Circuit agreed 
     fully with Judge Sarokin that the First Amendment guarantees 
     all citizens not only the right to express their ideas to 
     others, but also ``the right to receive information and 
     ideas'' from others. The Third Circuit described a long line 
     of Supreme Court cases supporting this right as essential to 
     a democratic society. It called the public library ``the 
     quintessential locus of the receipt of information,'' 
     affirming Judge Sarokin's determination that citizens enjoy a 
     right of access to the public library. Kreimer v. Bureau of 
     Police for the Town of Morristown, 958 F.2d 1242, 1256 (3d 
     Cir. 1992).
       Furthermore, the Court of Appeals agreed with Judge Sarokin 
     that the strictest scrutiny would apply to the library's 
     hygiene regulation, because it effectively prevented some 
     individuals from enjoying their First Amendment rights. While 
     it did disagree with Judge Sarokin's holding that the 
     regulation did not survive constitutional ``strict scrutiny'' 
     (a test that is rarely passed), its painstaking analysis 
     reveals how close a question this was.
       Judge Sarokin also found the library's regulations 
     unconstitutionally vague. He did not rule that the library 
     couldn't regulate access to its facilities, but rather that 
     because the regulations were so open-ended, they would allow 
     library officials to discriminate arbitrarily. He believed 
     that the prohibitions against poor hygiene and against 
     ``annoying'' behavior gave too much discretion to library 
     officials, allowing them to use the regulations as a 
     justification to expel those of whom they did not approve.
       While the Court of Appeals did not agree that the 
     regulation were unconstitutionally vague, one commentator, 
     Jeremy Rabkin of Cornell University, has said the Court of 
     Appeals decision went ``against the trend.'' He points out 
     that the Supreme Court has struck down traditional vagrancy 
     laws as excessively vague and threatening to the First 
     Amendment right of assembly (William and Mary Law Review, 
     1992).

                   Blum v. Witco Chemical Corporation


                               The Facts

       After a long jury trial, a jury found that the defendant 
     had discriminated against several of its employees in 
     violation of the Age Discrimination in Employment Act. The 
     jury awarded plaintiffs a total of $75,000 in lost pension 
     benefits as front pay under the ADEA and $15,000 in pain and 
     suffering. Pursuant to a federal statute providing for 
     attorney's fees, Judge Sarokin awarded fees to plaintiff's 
     counsel, which included an upward adjustment, called an 
     ``enhancement'' under the statute. 702 F. Supp. 493 (D.N.J. 
     1988).


                                Analysis

       The Third Circuit upheld the jury verdict for front pay, 
     but set aside the award for pain and suffering. The Third 
     Circuit also reversed and remanded the issue of attorney's 
     fees to the District Court for recalculation in light of an 
     intervening Supreme Court decision in Pennsylvania v. 
     Delaware Valley Citizen's Council for Clean Air, 483 U.S. 711 
     (1987), which set forth new guidelines concerning the proper 
     application of contingency multipliers in the calculation of 
     fees.
       On remand, Judge Sarokin applied the Supreme Court's 
     analysis and awarded an enhancement to the attorneys for the 
     prevailing party for (i) delay in payment of fees and (ii) 
     the risk involved in taking the case, where attorney's fees 
     are awarded only if the plaintiff prevails. The Third Circuit 
     fully affirmed the enhancement ordered by Judge Sarokin for 
     delay in payment. Blum v. Witco Chemical Corp., 888 F.2d 975, 
     984-85 (3d Cir. 1989). In addition, the Third Circuit 
     acknowledged that the Supreme Court has specifically provided 
     for enhancement based upon the risk of nonpayment; it 
     disagreed, however, with Judge Sarokin's finding that 
     plaintiffs had made an adequate factual showing to support 
     enhancement on this basis. Id. at 984.
       The Third Circuit recognized that the issues confronted by 
     Judge Sarokin were very complex, and observed that drawing 
     conclusions from Delaware Valley was an ``elusive task'' 
     because ``[t]o date, the Supreme Court has been unable to 
     produce a majority opinion on this issue.'' Id. at 977. 
     Delaware Valley was a plurality opinion delivered by a 
     sharply divided Supreme Court, 4-1-4. The Court of Appeals 
     acknowledged the ``awkwardness'' of following Justice 
     O'Connor's decisive opinion, which commanded only her vote. 
     Id. at 981.
       Contrary to the pronouncements of his critics, Judge 
     Sarokin adhered to the Supreme Court's framework in analyzing 
     the issue of the award of attorney's fees. Judge Sarokin 
     interpreted that opinion as requiring the plaintiffs to show 
     (i) that lawyers in the relevant market regularly receive a 
     premium for contingency cases and (ii) that for 
     discrimination cases, enhancement is economically necessary 
     to draw competent counsel, due to the risk that the plaintiff 
     will not prevail and fees will not be awarded. The Third 
     Circuit questioned neither the basic legal framework used by 
     Judge Sarokin nor the fact that the Supreme Court's decision 
     permitted enhancement in the action; it simply found, after 
     clarifying the complex economic analysis required, that 
     plaintiffs had not yet provided enough concrete factual 
     evidence to justify the market-based quantitative finding 
     necessary for enhancement.

        Vulcan Pioneers Versus N.J. Department of Civil Service


                               The Facts

       This complex employment discrimination class action was 
     brought by the Department of Justice to correct hiring 
     practices in heavily segregated fire departments in several 
     large New Jersey cities. The cities agreed to affirmative 
     action plans, including minority hiring goals and reform of 
     standardized employments tests to prevent racial bias.
       Judge Sarokin's decisions in this case addressed whether, 
     in determining which workers would suffer the effects of lay-
     offs, the affirmative action plan took precedence over the 
     seniority system established in collective bargaining 
     agreements. While lay-offs according to seniority jeopardized 
     much of the operation of the affirmative action plan, Judge 
     Sarokin was profoundly troubled by the conflict between fully 
     remedying past discrimination and singling out innocent 
     workers for dismissal. Because of his deep concern over the 
     potential for innocent victims to be harmed by enforcement of 
     the affirmative action plans, Judge Sarokin initially ruled 
     that while layoffs could not be conducted solely on the basis 
     of seniority, any senior white workers who suffered layoffs 
     should be compensated by the federal government. 588 F. Supp. 
     716 (D.N.J. 1984)


                                Analysis

       At the beginning of his opinion, Judge Sarokin emphasized 
     his extreme regret that carrying out the goals of the consent 
     decree would necessarily work an unfairness upon those who 
     had long faithfully served as firefighters. He wrote: 
     ``Though not themselves the perpetrators of wrongs inflicted 
     upon minorities over the years, these senior firefighters are 
     being singled out to suffer the consequences. In effect, they 
     are being required to hand over their jobs and paychecks to 
     someone else. It is inconceivable that they can be asked to 
     do this in the name of the public good, and yet not have the 
     public assume the responsibility therefor. 588 F. Supp. at 
     718.''
       As a result, Judge Sarokin refused to simply hold that 
     seniority systems must yield to the affirmative action plan; 
     rather, he held that those who lost their jobs must be 
     compensated with payments from the federal government, which 
     had initiated the lawsuit. Furthermore, he held that, as much 
     as possible, seniority would be respected when deciding who 
     would be laid off. Also, he ordered that some newly hired 
     minorities be laid off, so that the proportion of minority 
     representation already accomplished would only be maintained, 
     not increased.
       At the time Judge Sarokin issued his opinion, the Supreme 
     Court had clearly held in Franks v. Bowman, 424 U.S. 747 
     (1976), that while Title VII of the Civil Rights Act of 1964 
     explicitly states that differential treatment of employees 
     based upon a good faith seniority system is not an unlawful 
     employment practice, court orders must often alter seniority 
     systems in order to remedy past discrimination. Furthermore, 
     the Third Circuit had confirmed a challenged consent decree 
     containing an ``affirmative action override.'' In that case, 
     the Court of Appeals had held that classwide relief should be 
     available to all covered by a consent decree remedying a 
     discriminatory practice, even though the individual 
     plaintiffs had not demonstrated that they themselves were the 
     direct victims of the discrimination. E.E.O.C. v. American 
     Telephone & Telegraph Co., 566 F.2d 167 (3d Cir. 1977).
       Thus, at the time of his decision, Judge Sarokin was 
     following settled precedent in this area. The Supreme Court 
     subsequently held that alteration of seniority systems was 
     only appropriate upon proof that the beneficiaries of such 
     alteration were the direct victims of the discrimination. 
     Firefighters v. Stotts, 467 U.S. 561 (1984). As a result, 
     Judge Sarokin immediately vacated his earlier decision. 588 
     F. Supp. 732 (D.N.J. 1984).
       Judge Sarokin's opinions on affirmative action demonstrate 
     careful efforts to balance the need to address the 
     inequalities wrought by past discrimination with potential 
     inequities imposed on those who did not personally engage in 
     discrimination, within the bounds of established precedent.

                          ____________________