[Congressional Record Volume 140, Number 142 (Tuesday, October 4, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: October 4, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                      UNANIMOUS-CONSENT AGREEMENT

                                 ______


                   APPOINTMENT OF CONFEREES ON S. 21

  Mr. MITCHELL. Mr. President, as if in legislative session, I ask 
unanimous consent that the Senate turn to the message from the House on 
S. 21, the California desert bill; that the Senate request a conference 
with the House on the disagreeing votes of the two Houses, and that the 
Chair be authorized to appoint conferees.
  The PRESIDING OFFICER. Is there objection?
  Mr. WALLOP. Mr. President, reserving the right to object, and I shall 
not, but at a later time today, I will make a statement about this 
legislation. The statement will go to the effect that I have no 
objection--and I think the Senator from California realizes--to the 
protection of the desert, though I feel that it is now. But I have an 
equal feeling and obligation to the National Park System and Park 
Service which in effect are being taxed beyond their capacity by the 
endless addition of new parks and new demands on them. So with the 
understanding, Mr. President, that at some moment during the day in 
connection with this I may make that statement, I will not delay it 
now.
  There being no objection, the Presiding Officer (Mr. Wellstone) 
appointed Mr. Bumpers, Mr. Johnston, and Mr. Wallop conferees on the 
part of the Senate.
  Mr. MITCHELL. I thank my colleague.
  Mr. THURMOND. Mr. President, I rise today in opposition to the 
nomination of Judge Sarokin to serve on the U.S. Court of Appeals for 
the Third Circuit.
  Judge Sarokin was appointed to the district court 15 years ago by 
President Carter and since that time he has earned the reputation as a 
liberal judicial activist. In 1992, the New Jersey Law Journal observed 
that Judge Sarokin is considered the most liberal member of the Federal 
bench in New Jersey and further that Judge Sarokin may be the most 
reversed Federal judge in New Jersey when it comes to major cases. 
Additionally, the Almanac of the Federal Judiciary stated that 
``Sarokin is the most liberal judge on the District of New Jersey 
bench, according to a majority of civil attorneys.'' Also, the third 
circuit, the very court to which he has been nominated, has criticized 
Judge Sarokin for ``judicial usurpation of power'', for ignoring 
``fundamental concepts of due process'', for destroying the appearance 
of judicial impartiality, and for ``superimposing his own view of what 
the law should be in the face of the Supreme Court's contrary 
precedent.''
  Mr. President, these comments and a thorough review of Judge 
Sarokin's opinions have caused me great concern that he may be elevated 
to such an important court as the U.S. Court of Appeals for the Third 
Circuit. I questioned Judge Sarokin extensively during his nomination 
hearing before the Senate Judiciary Committee and his responses did 
little to mitigate my concerns based on his record before us.
  For example, I questioned Judge Sarokin on his opinion in the case of 
Kreimer versus Bureau of Police for the Town of Morristown where he was 
reversed by the third circuit. In that case, Kreimer was a homeless man 
who frequented the public library in Morristown. According to the 
library staff, Kreimer often exhibited offensive and disruptive 
behavior, including following library patrons, talking loudly to 
himself and others. Also, according to the library staff, Kreimer's 
odor was so offensive that it prevented library patrons from using 
certain areas of the library and prohibited library employees from 
performing their jobs. In 1989, the library enacted a written policy 
prohibiting certain behavior in the library and authorizing the library 
director to expel persons who violated them. After he was expelled from 
the library at least five times for violating these rules, Kreimer sued 
the library and others in Judge Sarokin's court. In granting summary 
judgments in favor of Kreimer, Judge Sarokin ruled that the library 
policy was facially unconstitutional.
  Judge Sarokin found that the library is a traditional public forum. 
Under Supreme Court precedent, the category of traditional public 
forums covers public places, such as streets, sidewalks, and parks, 
that have, by long tradition, been devoted to assembly and debate. Of 
course, under the Supreme Court's precedent, regulations affecting 
speech in a ``traditional public forum'' are accorded a strict standard 
of review.
  As I stated earlier, Judge Sarokin found that a public library is a 
``traditional public forum'', yet he cited no precedent in support of 
that ruling. I do not believe that his ruling was faithful to existing 
precedent.
  Mr. President, I would just point out that the third circuit found 
Judge Sarokin's ruling to be clearly wrong. As the third circuit 
observed and I quote, ``Obviously, a library patron cannot be permitted 
to engage in most traditional First Amendment activities in the 
library, such as giving speeches or engaging in any other conduct that 
would disrupt the quiet and peaceful library environment.'' End quote. 
Also, I note that the third circuit disagreed with Judge Sarokin that a 
library is a full-fledged designated public forum. Under Supreme Court 
precedent, a full-fledged designated public forum is a public place 
that has been designated by the government as devoted to assembly and 
debate. Clearly under this precedent, the third circuit got it right, a 
library is not a place of open assembly and debate.
  Additionally, Judge Sarokin also ruled that the library policy was 
unconstitutional overbroad and he relied heavily on a misreading of a 
1966 Supreme Court ruling in Brown versus Louisiana. Judge Sarokin 
defended his opinion on a position taken only by a plurality of the 
Supreme Court in the Brown decision. Again, the third circuit did not 
see it his way and found that the library policy was not substantially 
overbroad.
  Additionally, Judge Sarokin ruled that the library policy was 
unconstitutionally vague. In fact, he stated that paragraph one of the 
library policy was ``hopelessly vague.'' Mr. President, the following 
is paragraph one of the library policy which Judge Sarokin found 
unconstitutional and ``hopelessly vague'':

  ``Patrons shall be engaged in activities associated with the use of a 
public library while in the building. Patrons not engaged in reading, 
studying, or using library materials shall be required to leave the 
building.''
  Frankly, Mr. President, that paragraph seems clear to me and 
certainly not muddled enough to be unconstitutionally vague as Judge 
Sarokin found it. In fact, the third circuit had no difficulty 
concluding that paragraph one and the other paragraphs of the library 
policy were sufficiently clear.
  Judge Sarokin also concluded that the library policy violated the 
equal protection clause. According to his analysis, just as a poll tax 
for voting draws an improper line based on wealth, so does the 
library's hygiene rule, since it has a disparate impact on those poor 
patrons who do not have regular access to shower and laundry 
facilities. The third circuit, noting that the homeless do not 
constitute a suspect class, rejected his analysis and held that the 
library policy did not violate equal protection.
  Mr. President, I have spent a significant amount of time on this case 
because it appears to be a good example of Judge Sarokin's approach to 
judging, one of judicial activism. The third circuit made clear that in 
each of his rulings on the issues I have just discussed, he was 
patently wrong. It strikes me that Judge Sarokin's ruling in this case 
distorts precedent.
  I find this ruling as one in furtherance of an ideology which, 
whether intended or not, restricts a community from enforcing even 
minimal standards essential to the public good. This concerns me as to 
how Judge Sarokin would approach a community's ability to govern 
itself. I would just note that my concerns are heightened by his 
opinions in cases like E-Bru, Inc. versus Graves--in which Judge 
Sarokin spoke for the right of those who want to open adult book stores 
in communities that do not want them--and Knoedler versus Roxbury 
Township--in which Judge Sarokin ruled facially invalid an ordinance 
prohibiting the sale of drug paraphernalia.
  Mr. President, I would now like to turn to Judge Sarokin's 1984 
opinion in United States versus Rodriguez. In this case, Mr. Rodriguez 
was arrested on theft-related charges. At FBI headquarters, he was 
handed a form in Spanish advising him of his rights and stating that by 
his signature he agreed to waive them. Mr. Rodriguez read the form, but 
rather than signing his own name, he signed a false name. He then 
answered certain questions asked of him by an FBI agent.
  Despite Judge Sarokin's express finding that Rodriguez read the form 
and was aware of his rights before he spoke with the FBI agent, Judge 
Sarokin granted his motion to suppress evidence of his statements to 
the FBI agent.
  Judge Sarokin offered two primary reasons in support of his 
conclusion. First, he cited the fact that Rodriguez signed a false name 
to the waiver form. In Judge Sarokin's view, and I quote, ``it does not 
strain logic to find the use of a name other than one's own to be 
wholly inconsistent with a voluntary waiver of rights: defendant might 
well have believed that by using a false name he was not committing 
himself to anything.'' End quote. In short, Judge Sarokin's ruling 
adopts a per se rule that anytime a defendant signs a false name, he 
cannot be deemed to have voluntarily waived his rights, no matter how 
compelling other evidence is concerning voluntariness.
  Mr. President, there is no precedent of which I am aware that compels 
his result. In his opinion, Judge Sarokin cited United States versus 
Chapman which held that a false signature is not relevant to the issue 
of the voluntariness of the confession. This is contrary to Judge 
Sarokin's ruling that the use of a false name is inconsistent with a 
voluntary waiver of rights.
  The defendant's appearance before the magistrate was the second 
factor on which Judge Sarokin relied in finding his statements to the 
FBI agent involuntary. Mr. Rodriguez was asked by the magistrate 
whether he wanted a lawyer and he stated that he did. It was Judge 
Sarokin's opinion that this ``certainly gives rise to an inference of 
nonvoluntariness with respect to the earlier waiver.''
  Mr. President, I see no logical inconsistency between the fact that 
Rodriguez told the magistrate that he wanted a lawyer for assistance at 
trial and a conclusion that earlier he voluntarily agreed to speak with 
an FBI agent in the absence of counsel. It appears to me that Judge 
Sarokin made quite a stretch here for excluding the evidence in his 
case.
  Mr. President, I have mentioned several cases where Judge Sarokin's 
activist approach to judging causes concern. My colleagues have gone 
into other opinions by Judge Sarokin which leave doubt to his service 
as an impartial jurist should he be elevated to the U.S. Court of 
Appeals for the Third Circuit.
  I accord the President considerable deference in his constitutional 
responsibility to nominate individuals to the federal judiciary. In 
fact, we are fast approaching 100 Federal judges nominated by President 
Clinton which I have supported. However, in this instance, I cannot in 
good faith support the elevation of Judge Sarokin to the U.S. Court of 
Appeals for the Third Circuit. Although a pleasant and engaging 
individual, Judge Sarokin's record is one of judicial activism where 
time and time again he followed his own agenda rather than adhering to 
binding judicial precedent from the Supreme Court and the third 
circuit. It is for these reasons that I will vote against the 
nomination of Judge H. Lee Sarokin to serve on the U.S. Court of 
Appeals for the Third Circuit.
  Mr. President, I ask unanimous consent that the letters I now submit 
be printed in the Congressional Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                Congress of the United States,

                                     Washington, DC, Aug. 5, 1994.
     Hon. Strom Thurmond,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Thurmond: As you appraise the nomination of 
     Judge H. Lee Sarokin of the U.S. District Court in New Jersey 
     to the Third Circuit Court of Appeals, we urge you to 
     carefully consider his record and reject his nomination.
       Judge Sarokin has a lengthy record of freeing criminals at 
     the expense of their victims. His nomination by President 
     Clinton to a higher federal court is opposed by the National 
     Sheriffs' Association, the Law Enforcement Alliance of 
     America, the Fraternal Order of Police, Organized Victims of 
     Violent Crime, the U.S. Business and Industrial Council, and 
     the League of American Families.
       In one of his more infamous trials--Landano v. Rafferty--
     Judge Sarokin gave freedom without redemption to James 
     Landano, who shot several times at close range and killed a 
     Newark, NJ police officer. Landano was convicted to life 
     imprisonment by the New Jersey Superior Court; however, due 
     to Judge Sarokin's personal judicial activism, Landano has 
     been freely roaming the streets. In this particular case, 
     Judge Sarokin's rulings to free Landano have been so 
     egregious that the U.S. Court of Appeals was forced to 
     reverse his decisions four times.
       In the Landano case, Judge Sarokin attempted to project his 
     authority over the State's highest court and to extend 
     Landano's opportunities for release. Additionally, he ordered 
     the FBI to turn over federal documents to Landano for use in 
     his defense, despite the fact that the FBI felt that this 
     would jeopardize the safety of federal informants. In the 
     final reversal, rejecting Sarokin's permission to release 
     Landano on bail, the Third Circuit intimated that Judge 
     Sarokin's personal bias was an obstacle to justice in this 
     case: ``[the U.S. District Court for NJ] has already 
     determined that [Landano] may be innocent of the charges for 
     which he was convicted.''
       Crime has become so prevalent in our neighborhoods that 
     Americans have nearly become desensitized to it. And much of 
     the blame lies with judges like H. Lee Sarokin who have 
     neglected the rights of Americans to be safe in their 
     communities. As Representatives from the State over which 
     Judge Sarokin presently presides, we can attest to the fact 
     that New Jerseyans are becoming fed up with this elitist 
     attitude from the bench.
       Just last week in Hamilton Township, an average middle-
     class suburb of Trenton, a seven-year old girl was brutally 
     raped and murdered by a man living in her neighborhood. The 
     killer had been twice convicted of violent sex-crimes against 
     children and had been released from jail after serving only 
     three-fifths of his sentence. Residents of Hamilton joined a 
     nationwide ``night out'' on Tuesday to show criminals, like 
     the one who confessed to killing little Megan Kanka, that 
     they will no longer tolerate such deviant behavior. We 
     believe that it is critical for members of our judicial 
     system to keep criminals in jail. Judge Sarokin's inclination 
     for early release of criminals runs contrary to community 
     sentiment and therefore should not be rewarded.
       Enclosed are materials from Coalitions for America and the 
     Free Congress Foundation, as well as a Wall Street Journal 
     editorial from August 3, 1994, summarizing Judge Sarokin's 
     record. We hope that you will take these facts into 
     consideration when voting on Judge Sarokin's nomination.
       We appreciate your attention to this matter.
           Sincerely,
     Jim Saxton.
     Dean A. Gallo.
     Christopher H. Smith.
     Dick Zimmer.
     Bob Franks.
                                  ____

                                          Law Enforcement Alliance


                                                   of America,

                                                    July 26, 1994.
     Hon. Orrin G. Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch: The recent nomination of U.S. District 
     Judge H. Lee Sarokin to the United States Court of Appeals 
     for the Third Circuit by President Clinton is the latest 
     example of the liberalization of our criminal justice system 
     that began 30 years ago.
       Judge Sarokin has repeatedly made use of his judicial 
     position to promote social and personal issues and causes. He 
     has also made it plain that he will continue to do so if 
     confirmed to the United States Court of Appeals.
       Crime is the number one concern of the American public. 
     People are demanding real criminal justice reform--life 
     imprisonment for repeat offenders, greater involvement for 
     victims in the judicial process, the building of more prisons 
     to take violent criminals off our streets.
       Confirming Judge Sarokin will place another roadblock in 
     the path of justice. Judge Sarokin, in the West Virginia Law 
     Review, stated that he was opposed to both pre-trial 
     detention of violent criminals and mandatory minimum 
     sentencing guidelines. He also stated that admission of 
     evidence guidelines should be stricter to protect criminals' 
     rights.
       Clearly, criminals will have a friend on the bench of the 
     United States Court of Appeals if Judge Sarokin is confirmed.
       The 40,000+ law enforcement officers, victims of crime and 
     concerned citizens of the Law Enforcement Alliance of America 
     ask you to not confirm Judge Sarokin to the United States 
     Court of Appeals. Justice will not be served in America as 
     long as the rights of criminals are placed above the rights 
     of law-abiding citizens.
           Sincerely,
                                                   James J. Fotis,
                                               Executive Director.
                                  ____

                                        Fraternal Order of Police,


                               National Legislative Committee,

                                    Lindenwold NJ, August 5, 1994.
     Re nomination of H. Lee Sarokin to the U.S. Court of Appeals.

     U.S. Senate,
     Washington, DC.
       To the Members of the U.S. Senate: On behalf of the 250,000 
     member National Fraternal Order of Police and, in particular, 
     the members of the Fraternal Order of Police in the State of 
     New Jersey, I am informing you that we are in total 
     opposition to the appointment of Judge Sarokin to the U.S. 
     Court of Appeals for the Third Circuit.
       In at least one case, he has shown a propensity to be more 
     of an advocate of social and personal causes than a judge. In 
     a case involving the murder of a Newark, New Jersey police 
     officer Judge Sarokin made it his mission to set a convicted 
     person free.
       Briefly stated, in 1976, Vincent Landano was convicted and 
     sentenced to life in prison for the murder of a police 
     officer during an armed robbery. Ignoring his oath of office 
     and even after at least four reversals by the U.S. Court of 
     Appeals for the Third Circuit and the U.S. Supreme Court, 
     Judge Sarokin ordered Landano's release in June of 1989.
       We, in the F.O.P., find this action appalling and adamately 
     request that Judge Sarokin's nomination be denied. Our legal 
     counsel in Washington is currently researching other cases 
     that Judge Sarokin was involved in and hope to be able to 
     bring more information to you as it becomes available.
           Respectfully,
                                                Robert J. Robbins,
                                      New Jersey National Trustee.
                                  ____



                                  League of American Families,

                                     Ringwood, NJ, August 4, 1994.
     Senators Hatch and Dole,
     U.S. Senate,
     Washington, DC.
       Gentlemen: The Senate is considering the nomination of H. 
     Lee Sarokin to the U.S. Court of Appeals for the Third 
     Circuit. I strongly urge you to oppose this nomination for 
     two reasons. First, as evidenced by his removal from the 
     tobacco liability case by the U.S. Court of Appeals, he lacks 
     the basic judicial temperament to be a judge. All Americans 
     should demand judges who will be fair and impartial. Judge 
     Sarokin has proven--even to the satisfaction of the liberal 
     New York Times--that he lacks these qualities. His excuse at 
     his hearing yesterday that, well, he is just 
     ``irrepressible'' at times, is ridiculous.
       Second, Judge Sarokin injects into his cases personal views 
     that will have a devastating effect on American families. You 
     have received information about his views on criminal justice 
     issues. His opposition to pre-trial detention of criminal 
     defendants would, in particular, put families and children 
     especially at risk.
       In E-Bru v. Graves, 566 F.Supp. 1476, a case dealing with 
     the town of Paterson's prohibition on an adult bookstore 
     opening, Judge Sarokin delivered the kind of lecture that 
     characterizes many of his decisions. He made the outrageous 
     statement that ``the harmful effect'' of pornography ``has 
     never been clearly established.''
       Since you voted last year to condemn the Justice 
     Department's attempt to weaken the child pornography laws, 
     you must know that this statement is simply false. New books 
     have been published just in the last few years cataloging the 
     harms of pornography. In addition, however, why does Judge 
     Sarokin find this question significant at all? The Supreme 
     Court has ruled that a community's ability to control 
     pornography does not depend on scientific specifics. This is 
     another example of his imposing his own personal standards in 
     place of what the law requires.
       Judge Sarokin testified at his hearing on August 3 that he 
     would object to an adult bookstore opening near his home. 
     Apparently, he is perfectly willing to impose on others an 
     evil that he does not have to endure himself. America has 
     enough judges who are so ignorant of the real-world impact of 
     their decisions. Please do not add Judge Sarokin to that list 
     by elevating him to the U.S. Court of Appeals.
           Very truly yours,
                                             John T. Tomicki, J.D.
                                  ____

                                             County of Cumberland,


                                        Office of the Sheriff,

                                     Bridgeton, NJ, July 21, 1994.
     President William Clinton,
     The White House,
     Washington, DC.
       Dear President: As a Sheriff from New Jersey with over 
     thirty-five years experience in the Law Enforcement, I find 
     it incredible that you would consider nominating H. Lee 
     Sarokin to the U.S. Court of Appeals.
       I don't know who advised you on this but they were either 
     asleep at the switch or they really don't give a damn about 
     Law Enforcement. Judge Sarokin's crusade in behalf of cop-
     killer Landano is legendary in New Jersey.
       As a Democrat, I'm astounded that you would make such a 
     nomination. As a Law Enforcement Officer, I'm disappointed, 
     disillusioned, and damned mad.
       Please reconsider this nomination of this notorious cop-
     hating Judge.
       Thanking you, I am
           Very truly yours,
                                                James A Forcinito,
                                       Sheriff, Cumberland County.

  Mr. THURMOND. Mr. President, these several letters are in opposition 
to Judge Sarokin.
  The first letter I received was from five Members of the U.S. House 
of Representatives--all from New Jersey where Judge Sarokin currently 
sits--in opposition to Judge Sarokin's nomination. These Congressmen 
state unequivocally their opposition to Judge Sarokin and state that he 
has ``a lengthy record of freeing criminals at the expense of their 
victims.''
  Another letter comes from Mr. James Fotis, executive director of the 
Law Enforcement Alliance of America [LEAA] in opposition to this 
nomination. In his letter speaking on behalf of the LEAA, Mr. Fotis 
stated that ``Judge Sarokin has repeatedly made use of his judicial 
position to promote social and personal issues and causes.'' He further 
stated that ``confirming Judge Sarokin will place another roadblock in 
the path of justice.''
  The 250,000 member National Fraternal Order of Police sent a letter 
to the U.S. Senate expressing their ``total opposition'' to Judge 
Sarokin's nomination.
  Still another letter comes from the League of American Families 
strongly urging opposition to Judge Sarokin's nomination. The League of 
American Families believes that Judge Sarokin lacks the judicial 
temperament and the ability to be a fair and impartial jurist on the 
U.S. Court of Appeals for the Third Circuit.
  Finally, I have submitted a letter from the sheriff of Cumberland 
County in New Jersey to President Clinton in opposition to Judge 
Sarokin. This Democrat sheriff with over 35 years of experience in law 
enforcement stated to the President that he was astounded, 
disappointed, and disillusioned over this nomination,
  Mr. President, these letters come from people who know Judge 
Sarokin's record and they speak loud and clear concerning his 
nomination to the Circuit Court.
  I yield the floor.
  Mr. LAUTENBERG addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Jersey [Mr. Lautenberg] 
is recognized.
  Mr. LAUTENBERG. Mr. President, I rise to express my support for the 
confirmation of Judge H. Lee Sarokin to the Third Circuit Court of 
Appeals. My senior colleague, Senator Bradley, recommended Judge 
Sarokin to the President for this position, and I support him in that 
recommendation.
  Judge Sarokin is a native of my home State of New Jersey. He has had 
a distinguished career as a trial lawyer and a district court judge. He 
has received the unanimous, well-qualified backing of the American Bar 
Association.
  Throughout his career, Judge Sarokin has demonstrated that he is a 
man of deep insight and keen intellect and is held in the highest 
esteem by colleagues, as well as numerous attorneys who have appeared 
before him in the court. I have spoken to a lot of those people, and 
their judgment is almost unanimously supportive. Without question at 
all, he has the talent and temperament to discharge the duties of his 
office with distinction and with fairness.
  Both Democrats and Republicans have expressed their support for Judge 
Sarokin's nomination. As a matter of fact, Senator Specter, a 
distinguished Republican Senator and former prosecutor from 
Pennsylvania, has supported Judge Sarokin's nomination and voted in his 
favor in the Judiciary Committee. Judge Sarokin has also been endorsed 
by four former U.S. attorneys in New Jersey, including Michael 
Chernoff, now Republican counsel to the Whitewater hearings. He has 
been supported also by the noted conservative Yale law professor, 
George Priest, who describes Sarokin as among the very first rank of 
Federal judges.
  But, Mr. President, despite Judge Sarokin's impressive background and 
sound credentials, we are going to hear some opposition to his 
confirmation and questions about his fitness to serve on the Third 
Circuit Court of Appeals. I think that is because Judge Sarokin has not 
shirked from hard decisions, whether they affect the tobacco industry, 
the first amendment, or about other controversial issues.
  His decisions were based on deeply thought out legal principles and 
objective judicial analysis, even though they might not have passed a 
popularity litmus test at the moment. In fact, Judge Sarokin was 
criticized by tobacco companies for lacking objectivity, and yet, 
despite his strong criticism of the industry, he actually ruled in 
their favor more often than not in pretrial motions.
  Judge Sarokin has also been criticized for a decision that he made in 
the famous case of James Landano. Landano was convicted in 1978 of 
shooting a police officer during an armed robbery. He is now free 
because of new evidence suggesting that he might be innocent. The 
murder of a police officer is a heinous crime, and it ought to be 
punished swiftly, severely, and certainly. Police officers put their 
lives on the line for us each and every day, and I would not support 
confirmation of a judge who willy-nilly lets a cop killer go free.
  But before we get lost in the debate on the Landano case, we should 
remember the facts as we heard them from the distinguished chairman of 
the Judiciary Committee earlier this day. It is worth repetition. 
Landano filed a habeas corpus petition with Judge Sarokin in 1987 after 
the chief witness against him recanted and said that his testimony at 
the trial was fabricated. When this occurred, Judge Sarokin, harboring 
serious doubts about Landano's guilt, still did not grant the petition, 
because a State judge before him had already rejected the petition. 
Landano stayed in prison for 2 more years. And then in 1989 Landano 
brought forth additional evidence pointing to his innocence. At this 
point, because of the new evidence, it was appropriate for the district 
court to review the case again. And Judge Sarokin, this time, granted 
the habeas corpus request.
  In the literature from conservative organizations that oppose Judge 
Sarokin's nomination, they would have you believe that Judge Sarokin is 
personally responsible for the fact that James Landano is out of jail. 
It simply is not the case. It was a New Jersey State court, a court 
within our State, an appeals court, that ultimately decided that there 
was enough new evidence to raise serious doubt about Landano's guilt, 
and it was a New Jersey State court that decided to grant him a new 
trial. Even at this moment, prosecutors have not yet made a decision 
that there is sufficient evidence to present a new case against him.
  Federal judges are constantly besieged with habeas corpus petitions, 
and during his 15 years on the Federal bench, Judge Sarokin has 
reviewed between 500 and 1,000 of these requests. In all that time, he 
has granted just 5 of those appeals. That is far less than 1 percent.

  Of course, we want Federal judges who are going to pursue the law and 
lock up the bad guys, but we also want judges who are fair. And 
sometimes the circumstances that we read about present a different view 
than those who are in the courtroom hearing the case or judging the 
case. We want judges who can take a step backward and make sure that in 
our eagerness to fight crime, and all of us are bent on that mission 
today, that we are not locking up innocent men and women.
  Five times in 15 years, Judge Sarokin has seen something disturbing 
in a conviction and has granted a habeas corpus petition. That 
certainly does not make him soft on crime.
  So as we listen to this debate, let us remember that Judge Sarokin's 
occasional statement has not affected the substance of his decisions 
and that he is by no means soft on crime or criminals.
  Mr. President, Judge Sarokin has not allowed his personal views to 
affect his judicial decisions. And we should not allow our personal or 
political views to affect our judgment on his fitness for the job.
  Judge Sarokin's decisions have been consistently upheld by the Third 
Circuit Court of Appeals, the court to which he is now being nominated. 
Less than 3 percent of his written opinions have been reversed or 
vacated, and at least two of those reversals were ultimately reversed 
again themselves by our Supreme Court.
  In a New York Times editorial last month, the minority leader said 
that Republicans have not tried to thwart President Clinton's Cabinet 
and judicial nominees because he believes that a President should have 
a fairly free hand in choosing those nominees.
  I believe that is why we saw in the vote just taken such strong 
support, 85 votes for cloture, and a conclusion to this matter.
  We should not allow partisan bickering to stall Judge Sarokin's 
confirmation to the third circuit.
  I want to say to my colleagues on the other side, obviously by the 
vote taken this does not register as a general partisan accusation. A 
lot of them voted for cloture. I would be interested in hearing the 
comments.
  But he is a thoughtful, fair-minded jurist with a deep commitment to 
justice, the law, the public it serves, and our most cherished 
liberties.
  I am confident that he will be a distinguished addition to that 
court, and I urge my colleagues on both sides of the aisle to confirm 
this nomination for this well-qualified judge without further delay.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Graham). The Senator from Utah is 
recognized.
  Mr. HATCH. Mr. President, I rise today to speak in opposition to 
President Clinton's nomination of H. Lee Sarokin to the U.S. Court of 
Appeals for the Third Circuit. I do so with regret because I believe 
Judge Sarokin to be well-intentioned and capable. But I do so with the 
firm conviction that his record establishes that he will pursue his own 
ideological agenda instead of applying the law.
  Before turning to Judge Sarokin's record, let me place this 
nomination in broader context. By the time his term ends in 1997, 
President Clinton may well have appointed well over 200 lower-court 
Federal judges. In many or most of the cases that come before them, 
these judges will effectively be the final decisionmakers. In short, 
they have enormous power. This is particularly true of Federal 
appellate judges. Because the Supreme Court is able to review so few 
cases, Federal appellate judges function in effect as the Supreme 
Court--the Court of last resort--in the cases that they decide.
  Nowhere, in my view, is it more important how judges exercise their 
enormous power than in the criminal field. No matter how much 
Government leaders talk about crime, no matter how many tough measures 
we enact, no matter how much money liberal Democrats force taxpayers to 
spend on social program boondoggles that are marketed as preventing 
crime, if we have judges who are activist on behalf of criminals and 
who undermine public order, then everyone's anticrime efforts are 
wasted.
  Let me be clear about this. Because the conference report on the 
crime bill contained billions of dollars in pork that were not in the 
original Senate bill, and because important tough-on-crime provisions 
in that original bill were taken out by the Democrat-controlled 
conference, I opposed the final crime bill. At the same time, largely 
as a result of Republican amendments, the final crime bill did contain 
a number of good provisions that I support. But if even these 
provisions are watered down or overridden by soft-on-crime judges, then 
the whole crime bill effort will have been an utter waste by any 
measure.
  Unfortunately, it is clear that President Clinton does not have the 
battle against crime as a priority--or even as a consideration--in his 
selection of lower court judges. Even worse, he has in fact, appointed 
some judges who are demonstrably soft on crime--Rosemary Barkett is 
just one notable example--and he has appointed a number of others whose 
records raise serious questions.
  Let me now turn to Judge Sarokin and his record. In the 15 years 
since he was appointed to the Federal district court in New Jersey by 
Jimmy Carter, Judge Sarokin has earned a nationwide reputation as a 
stridently liberal judicial activist. On a broad range of telltale 
issues--such as crime, quotas, reverse discrimination, pornography, and 
minimal community standards of decency and behavior--Judge Sarokin has 
pursued his own political agenda instead of following the law. In so 
doing, he has ignored, defied, and even stampeded binding Supreme Court 
and third circuit precedent, and he has flaunted his own biases and 
sentiments on the sleeve of his judicial robe.
  These are not just my views, nor just the views of outside critics. 
The third circuit itself has, for example, lambasted Judge Sarokin for 
``judicial usurpation of power,'' for ignoring ``fundamental concepts 
of due process,'' for destroying the appearance of judicial 
impartiality, and for ``superimpos[ing his] own view of what the law 
should be in the face of the Supreme Court's contrary precedent.'' The 
New Jersey Law Journal [9/14/92] has reported that Judge Sarokin ``may 
be the most reversed Federal judge in New Jersey when it comes to major 
cases.''
  Law enforcement and victims rights organizations that have announced 
their opposition to Judge Sarokin's nomination include the Fraternal 
Order of Police, the Law Enforcement Alliance of America, the New 
Jersey State Police Survivors of the Triangle, Organized Victims of 
Violent Crime, the League of American Families, Citizens for Law and 
Order, Citizens Against Violent Crime, and Voices for Victims, Inc.
  Now I just do not understand why, at a time when the President says 
that he is finally getting serious about crime, he is appointing to a 
top judgeship someone whose soft-on-crime views are so strongly opposed 
by many police and crime victims. Indeed, it is particularly notable 
that groups like the Fraternal Order of Police, which joined with 
President Clinton in supporting the crime bill, oppose Judge Sarokin's 
nomination.
  A careful examination of Judge Sarokin's record highlights the 
concerns that these law enforcement and victim rights organizations 
have raised about Judge Sarokin's liberal judicial activism. These 
concerns are aggravated by Judge Sarokin's own testimony at his 
confirmation hearing.
  Judge Sarokin has described himself as a ``flaming liberal'' as a 
judge. [Speech to Federalist Society, May 16, 1994.] On this point 
there should be no disagreement. Take, for example,  Judge Sarokin's 
views on pretrial detention of dangerous criminal suspects. Judge 
Sarokin argues that pretrial detention is ``in direct contradiction of 
the presumption of innocence.'' [90 West Va. L. Rev. 1003, 1005 
(1988).] Let me repeat that: Judge Sarokin argues that pretrial 
detention is ``in direct contradiction of the presumption of 
innocence.'' With all due respect to Judge Sarokin, this position is 
dead wrong. The presumption of innocence establishes that the burden of 
proof at trial lies with the Government. It does not require that 
society turn a blind eye to the fact that certain arrested criminal 
suspects would pose a grave threat to society if they were released. A 
completely separate set of procedural guarantees--including, for 
example, the requirement of probable cause to arrest and detain a 
suspect--affords the necessary constitutional protections against 
unlawful detention.

  Judge Sarokin's position that dangerous criminal suspects should not 
be subject to pretrial detention would, if taken seriously, have tragic 
consequences for society. Repeat violent criminals would be unleashed 
to prey on innocent law-abiding citizens. Witnesses to the crime for 
which the criminal suspect had been arrested would be subjected to 
brutal intimidation. The liberal revolving door for criminals would 
spin even faster.
  Judge Sarokin has likewise argued that the rules governing disclosure 
of information in criminal cases need to be loosened up in favor of the 
criminal defendants, in order to provide more information sooner. As 
Judge Sarokin recognizes, the balance struck by the existing rules is 
designed to protect against the serious problem of witness intimidation 
and witness tampering. But in Judge Sarokin's view, ``the assumption of 
such improper conduct undermines the presumption of innocence accorded 
to the accused.'' [43 Rutgers L. Rev. 1089 (1991).] Here again, Judge 
Sarokin distorts the presumption of innocence--an important but narrow 
rule that sets forth who has the burden of proof at trial--into a 
wholesale obligation to bend all rules in favor of the criminal 
defendant. Under Judge Sarokin's logic, one might as well say that 
criminal defendants should not be subjected to trial since trial is 
inconsistent with the presumption of innocence. The sorry fact is that 
witness intimidation and tampering are severe problems. The existing 
rules structure pretrial disclosure of information in a way that 
minimizes these problems at the same time that they preserve the 
defendant's right to a fair trial. There is no reason to change these 
rules to benefit criminal suspects and to harm innocent citizens.
  If my disagreement with Judge Sarokin on these and other matters were 
simply a matter of differing policy views, I might not be so troubled 
by his nomination, since judges should not engage in policymaking. But 
the fact of the matter is that Judge Sarokin has worked to smuggle his 
soft-on-crime views into his criminal opinions. For example, in 
granting a defendant a hearing to review his continuing pretrial 
detention, Judge Sarokin expressed, and relied on, his view that 
pretrial detention conflicted with the presumption of innocence. 
[United States v. Mendoza, No. 87-5 (D.N.J. 1987) (``The concept that 
those presumed to be innocent can be held in custody on the assumption 
that they will commit further crimes if released poses grave concerns 
in a free society'').] In yet another case, the third circuit reversed 
Judge Sarokin on the ground that he had no authority to order the 
release on bail of an undocumented alien. [In re Ghalamsiah, 806 F.2d 
68 (3d Cir. 1986), reversing No. 86-767 (D.N.J. 1986).]
  Similarly, in his opinions Judge Sarokin has stated and implemented 
his view that ``the discovery obligations of the government in criminal 
matters should be construed as broadly as possible'' and has expressed 
his ``amazement'' that existing rules are not broader than they are. 
[United States v. Khater, No. 84-148 (D.N.J. 1985).]
  Judge Sarokin has a clear record of implementing his liberal 
ideological agenda in the guise of judicial opinions. Judge Sarokin is 
perhaps most notorious for his precedent-defying opinion in the case of 
Kreimer v. Bureau of Police for the Town of Morristown [765 F. Supp. 
181 (D.N.J. 1991), rev'd, 958 F.2d 1242 (3d Cir. 1992)]. Kreimer was a 
homeless man who lived outdoors in Morristown, NJ. According to various 
news accounts, Kreimer was homeless because he had squandered a 
$340,000 inheritance, turned down job offers, and refused to live in a 
shelter. In any event, Kreimer frequently occupied the public library 
in Morristown. According to library staff, Kreimer often engaged in 
offensive and disruptive behavior, including staring at and following 
library patrons and talking loudly to himself and others. Also, 
according to library staff, Kreimer's body odor was so offensive that 
it prevented others from using certain areas of the library and kept 
library employees from performing their jobs. A logbook instituted to 
catalog disciplinary problems faced by the library described incidents 
such as ``Kreimer's odor prevents staff member from completing copying 
task,'' ``Kreimer spent 90 minutes--twice--staring at reference 
librarians, ``Kreimer was belligerent and hostile toward [the library 
director], and ``Patron [was] followed by Kreimer after leaving 
Library.''
  In 1989, the library enacted a written policy prohibiting certain 
behavior in the library and authorizing the library director to expel 
persons who violated them. After he was expelled from the library at 
least five times for violating these rules, Kreimer sued the library 
and others in Federal district court, alleging that the library's 
policy violated the first amendment and the due process and equal 
protection clauses of the 14th Amendment.
  In a remarkable ruling, Judge Sarokin granted summary judgment in 
favor of Kreimer. Judge Sarokin's ideological bias is manifested in his 
grandiose assertion that ``[i]f we wish to shield our eyes and noses 
from the homeless, we should revoke their condition, not their library 
cards.'' This rhetoric is, of course, a red herring: The library was 
not revoking the library cards of the homeless, nor was it singling 
them out. It was instead simply requiring that all patrons comport with 
minimal standards of behavior and decency.
  Judge Sarokin proceeded to concoct a number of specious arguments 
that the library policy was unconstitutional. Judge Sarokin ruled that 
the library policy violated the first amendment. He ruled that it was 
unconstitutionally overbroad. He ruled that it was unconstitutionally 
vague. He ruled that it violated substantive due process. He ruled that 
it violated equal protection. And he ruled that it violated the New 
Jersey Constitution.
  One problem with these six separate rulings by Judge Sarokin is that 
all of them are clearly, conspicuously, and extravagantly wrong. Not 
surprisingly, the third circuit, in a thorough opinion, unanimously 
reversed each of Judge Sarokin's six rulings. In order to understand 
how baseless and lawless Judge Sarokin's opinion was, it is useful to 
examine some of the many flaws in his rulings.
  Judge Sarokin's first ruling was that the library policy was not a 
reasonable time-place-and-manner regulation and therefore violated the 
first amendment. This ruling hinged in part on Judge Sarokin's 
assertion that a public library is a traditional public forum, like the 
public streets, sidewalks, and parks. Notably, Judge Sarokin did not 
cite any precedent in support of this assertion. Nor could he, for the 
assertion is untenable under Supreme Court precedent. Judge Sarokin's 
assertion that the library is a full-fledged designated public forum 
was also without any support in precedent. Remarkably, Judge Sarokin 
did not even explore the alternative that the library was a limited-
purpose public forum, as the third circuit ruled it was.
  Judge Sarokin's second ruling--that the library policy was 
unconstitutionally overbroad--misstated the holding of the Supreme 
Court case on which it purported to rely. Judge Sarokin took the 
position, both in his opinion and in his hearing testimony, that the 
Supreme Court had held that the protesters in a 1966 case called Brown 
v. Louisiana [383 United States 131 (1966)] had engaged in a 
``constitutionally protected protest.'' In fact, Judge Sarokin 
mistakenly attributed to the Supreme Court a position taken by only a 
three-Justice plurality, as Justice Brennan's opinion concurring in the 
judgment in the Brown v. Louisiana case makes clear. The distinction 
between a holding of the Supreme Court and a position taken by a 
plurality is elemental. Yet Judge Sarokin ignored this distinction in 
making his mistaken ruling. In the remainder of his overbreadth 
analysis, he then engaged in the sort of hyperimaginative hypothesizing 
that would doom every statute.
  Judge Sarokin's third ruling--that the library policy was 
unconstitutionally vague--was also defective in many respects, as the 
third circuit ruled. Among other things, Judge Sarokin applied the 
vagueness standard applicable to criminal statutes even though the 
library policy was civil in nature. In addition, the library policy 
listed specific behavior that was proscribed, and its hygiene 
provisions rested on an objective test of reasonableness. It is 
difficult to see how any policy could ever survive Judge Sarokin's 
approach. Indeed, this approach, if applied consistently, might well 
deprive society of the power to set any rules of behavior.
  Judge Sarokin's fourth and fifth rulings employ two of the standard 
tools of the liberal judicial activist: so-called substantive due 
process and the equal protection clause. Under well-established Supreme 
Court precedent, courts must give very broad deference to rules unless 
those rules impinge on a fundamental right or affect a suspect class. 
Judge Sarokin's ruling ignored this precedent. Remarkably, Judge 
Sarokin asserted that the library policy imposed ``a reader-based 
restriction, analogous to prohibited speaker-based restrictions,'' even 
though he acknowledged that ``the restriction is not because of the 
reader's views.'' Judge Sarokin's creation of a suspect class defined 
by poor hygiene or homelessness had no basis in equal protection 
precedent. His use of disparate impact analysis also defied the Supreme 
Court's decision in Washington versus Davis, which makes clear that 
discriminatory intent--along a recognized suspect line--is necessary to 
trigger strict scrutiny. Judge Sarokin's disparate impact approach 
would enable judges to impose pervasive quotas throughout society. More 
generally, Judge Sarokin's freewheeling use of substantive due process 
and equal protection poses the threat of judicial nullification of 
whatever laws or rules displease him or disserve his liberal agenda.
  Finally, Judge Sarokin's sixth ruling--that the library policy 
violated the State constitution--was without precedent in State law and 
illustrates the dangers of activist judges using State constitutions as 
a weapon to override the political process.
  In sum, Judge Sarokin's opinion in the Kreimer case is liberal 
judicial activism at its worst. Each of Judge Sarokin's rulings noted 
above is not just wrong, but patently wrong. Judge Sarokin does not 
simply misread precedent. He defies it and distorts it in furtherance 
of an ideology that prevents a community from enforcing even minimal 
standards essential to the public good. By effectively giving Richard 
Kreimer a right to disrupt and disturb a library, Judge Sarokin 
deprives the mass of citizens of the right to use a library in peace.
  As the Wall Street Journal noted in a fine editorial [6/12/91], the 
conduct that Judge Sarokin protects when engaged in by a homeless man 
would never be tolerated if done by anyone else:

       When a college professor or business executive looks at a 
     woman in a way she considers disturbing, he nowadays may be 
     subject to reprimands, departmental hearings, threats to his 
     job and status, and accusations of sexual harassment. Mr. 
     Kreimer, on the other hand, has been treated as a hero, 
     embraced by the politically correct who have apparently 
     decided that harassing women is acceptable so long as the 
     harasser is homeless.

  I am also troubled by the fact that Judge Sarokin painted a very 
misleading picture of Kreimer at his hearing. Here is what Judge 
Sarokin had to say about this case:

       There were two issues that were presented to me. * * * The 
     first one was whether or not there was a constitutional right 
     of access to the library under the first amendment. I said 
     that there was, and the third circuit agreed. * * * [T]he 
     only issue with which the third circuit disagreed was whether 
     or not the regulations were vague and overbroad. They did not 
     disagree about the first amendment analysis.'' [46:1-5,19-22]

  Judge Sarokin's summary of Kreimer is mistaken or distorted in 
several critical respects. First, as I have discussed, there were at 
least six separate legal claims decided by Judge Sarokin. The third 
circuit reversed Judge Sarokin on every claim. In short, Judge Sarokin 
was 0-for-6, not 1-for-2. Second, the question whether the first 
amendment was implicated at all by the library policy was a minor--and 
easy--part of the determination whether the policy was a reasonable 
time-place-and-manner regulation. Judge Sarokin properly devoted only 
about a half page of his 17-page opinion to this issue, yet he 
incorrectly stated at his hearing that this was one of two major issues 
in the case.

  Third, the real question on the basic first amendment analysis was 
what standard of review applies. Judge Sarokin held, without any basis 
in precedent, that a library is both a traditional public forum and a 
full-fledged designated public forum and that all the provisions of the 
library policy were therefore subject to a high level of scrutiny. 
These holdings are strikingly groundless, and were repudiated by the 
third circuit. In short, the third circuit did ``disagree about the 
First Amendment analysis''--and it did so vigorously.
  Fourth, it is especially worrisome that Judge Sarokin did not even 
recall that he had relied on unprecedented uses of substantive due 
process and equal protection to strike down the library policy. Is a 
judge who wields these weapons so carelessly and thoughtlessly fit for 
elevation to the third circuit? These two constitutional provisions, if 
misused, are among the most powerful available to a judge who seeks to 
substitute his own views for those of the legislative branch.
  The White House's defense of Judge Sarokin's ruling in this case is 
as false and feeble and slick as its defense of the pork-laden crime 
bill. The White House claims that the third circuit ``agreed with Judge 
Sarokin that the strictest scrutiny would apply to the library's 
hygiene regulation.'' One problem with this claim is that it is not 
true: The standard applied by the third circuit to the hygiene 
regulation is distinct from, and far more permissive than, the standard 
of strict scrutiny for race-based classifications under the equal 
protection clause. Another problem with the White House's claim is that 
it is deceptive: The White House deliberately obscures the fact that 
the third circuit subjected most of the provisions of the library 
policy to a very deferential reasonableness test. In short, the White 
House's effort to present Kreimer as a ``close'' case upon which 
reasonable minds could differ is absurd.
  Judge Sarokin's opinion in the Kreimer case is just one example of a 
slew of opinions by liberal activist judges that deprive communities of 
the ability to regulate themselves and to maintain minimal standards of 
decency and public order. All too often, when communities attempt to 
combat such scourges as drug dealing, prostitution, and pornography, 
liberal activist judges concoct excuses to cripple these efforts. The 
link between these liberal activist rulings and this Nation's growing 
crime problem is, in my view, beyond fair dispute. In short, if we have 
activist judges like Judge Sarokin who are eager to override community 
standards, our crime problem will only get worse. Another case that 
illustrates Judge Sarokin's soft-on-crime liberal activism is the 1984 
case of United States v. Rodriguez [Crim No. 84-18 (D.N.J. 1984)]. In 
that case, Judge Sarokin found that the defendant, Rodriguez, had read 
a form advising him of his Miranda rights, had signed the part of the 
form waiving those rights, and was aware of those rights before he 
spoke with an FBI agent. Judge Sarokin nonetheless granted Rodriguez' 
motion to suppress evidence of his statements to the FBI agent. In 
concluding that Rodriguez did not waive his Miranda rights and that his 
statement should therefore be deemed involuntary, Judge Sarokin relied 
heavily upon the fact that Rodriguez did not sign his own name to the 
waiver form, but instead signed the false name Lazaro Santana. 
According to Judge Sarokin, ``it does not strain logic to find the use 
of a name other than one's own to be wholly inconsistent with a 
voluntary waiver of rights: Defendant might well have believed that by 
using a false name he was not committing himself to anything.'' It does 
indeed strain logic to conclude that signing an alias is wholly 
inconsistent with a voluntary waiver: the far more natural conclusion 
is that Rodriguez, use of the alias may simply have been an effort to 
conceal his identity. But what is even more remarkable is that Judge 
Sarokin's ruling was directly contrary to controlling third circuit 
precedent, as Judge Sarokin himself recognized.
  At his hearing, Judge Sarokin claimed that the third circuit had held 
only that the use of a false name is ``certainly not dispositive'' but 
could well be relevant. [91:15] Such a claim is contrary to the reading 
of that precedent made by Judge Sarokin himself in Rodriguez. It also 
finds no support in the third circuit case. But as a result of Judge 
Sarokin's liberal judicial activism, critical evidence against a 
criminal suspect was suppressed.
  Mr. President, we do not need more judges who will handcuff the 
police in the war on crime. We do not need more judges who will create 
hypertechnical rules that free the guilty. We do not need more judges 
who will ignore existing precedent and twist laws to favor criminals. 
Liberal judicial activism has taken that approach for the past 30 
years, and the results have been all too predictable: Soaring rates of 
murder, rape, and other violent crimes, and communities riddled with 
drugs and at the mercy of gangs of thugs. Enough is enough.
  Numerous other cases also illustrate Judge Sarokin's propensity to 
pursue his own agenda and to defy precedent. The case of Haines versus 
Liggett Group--which involved a personal injury action against 
cigarette manufacturers--is an all-too-telling example. [140 F.R.D. 681 
(D.N.J. 1992), writ granted, 975 F.2d 81 (3d Cir. 1992).] In this case, 
the plaintiff Haines sought discovery of certain documents that the 
defendant cigarette companies said were protected by the attorney-
client privilege. Haines argued that even if the documents were within 
the scope of the attorney-client privilege, the crime-fraud exception 
applied and annulled the privilege. A magistrate judge determined that 
the documents were privileged and that the crime-fraud exception did 
not apply.
  Haines appealed the magistrate judge's order to Judge Sarokin. Judge 
Sarokin ordered the parties to supplement the record with materials 
from the record in a similar case, Cipollone, in which he was the trial 
judge. He then issued a ruling that the crime-fraud exception did apply 
and that Haines was entitled to discovery of the documents at issue.
  Three aspects of Judge Sarokin's opinion merit special attention:
  First: Judge Sarokin opened his opinion on this discovery dispute 
with this inflammatory prologue:

       In light of the current controversy surrounding breast 
     implants, one wonders when all industries will recognize 
     their obligation to voluntarily disclose risks from the use 
     of their products. 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 prosperity!
       As the following facts disclose, despite some rising 
     pretenders, the tobacco industry may be the king of 
     concealment and disinformation.

  Second: Judge Sarokin held that the magistrate judge's ruling could 
not survive under even the clearly erroneous standard of review--a 
standard of review that is supposed to be very deferential and that, 
not incidentally, is the standard of review that court of appeals 
judges are generally obligated to apply to trial court factual 
findings. In reversing the magistrate judge's ruling, Judge Sarokin 
relied not only on the supplemental evidence that he ordered from the 
Cipollone trial but also on his ``own familiarity with the evidence 
adduced at the Cipollone trial discussed in the directed verdict 
Opinion'' in that case. [140 F.R.D., at 694.] Judge Sarokin stated that 
having heard the trial evidence in Cipollone, he was ``in the unique 
position of being able to evaluate the full scope of evidence 
supporting plaintiff's crime/fraud contention in the instant case.'' 
[Id., at 694 n. 12.]
  Third: In a stated effort to show ``some of the most damaging 
evidence'' on this crime-fraud exception, Judge Sarokin quoted 
extensively from those documents as to which privilege had been found 
to exist by the magistrate judge. [140 F.R.D., at 695.]
  In a remarkably impressive opinion, the third circuit unanimously 
granted an extraordinary writ vacating Judge Sarokin's order and 
removing him from the case. The third circuit emphasized that a writ 
was an extreme remedy to be used ``only in extraordinary situations'' 
and that ``only exceptional circumstances amounting to a judicial 
usurpation of power will justify the invocation of this extraordinary 
remedy.'' [975 F.2d, at 88 (internal quotes omitted and emphasis 
added).] But the third circuit found that Judge Sarokin's ruling was in 
fact a judicial usurpation of power. Among other things, the third 
circuit ruled that in reviewing the magistrate judge's order under the 
clearly erroneous standard, Judge Sarokin was not permitted to receive 
further evidence. [975 F.2d, at 91.] As it observed, our ``common law 
tradition [does not] permit a reviewing court [(in this case, the 
district court)] to consider evidence which was not before the tribunal 
of the first instance.'' [Id., at 92.] Because Judge Sarokin considered 
and relied on portions of the Cipollone record that were not in the 
record before the magistrate judge, his order could not stand. [Id. at 
93.]
  The third circuit also sharply scolded Judge Sarokin for disclosing 
the contents of the documents as to which privilege had been claimed. 
In its words:

       This, too, must be said. Because of the sensitivity 
     surrounding the attorney-client privilege, care must be taken 
     that, following any determination that an exception applies, 
     the matters covered by the exception be kept under seal or 
     appropriate court-imposed procedures until all avenues of 
     appeal are exhausted. Regrettably this protection was not 
     extended by the district court in these proceedings. Matters 
     deemed to be excepted were spread forth in its opinion and 
     released to the general public. In the present posture of 
     this case, by virtue of our decision today, an unfortunate 
     situation exists that matters still under the cloak of 
     privilege have already been divulged. We should not again 
     encounter a casualty of this sort. [975 F.2d, at 97.]

  Finally, in what the third circuit described as ``a most agonizing 
aspect of this case,'' it then removed Judge Sarokin from the case on 
the ground that the prologue to his opinion on this preliminary 
discovery issue destroyed any appearance of impartiality. The court 
noted that the prologue stated ``accusations'' on the ``ultimate issue 
to be determined by a jury'' in the case: whether defendants 
``conspired to withhold information concerning the dangers of tobacco 
use from the general public.'' It further noted that Judge Sarokin's 
inflammatory remarks were reported prominently in the press throughout 
the nation. [975 F.2d, at 97-98.]
  The third circuit's observations that Judge Sarokin's ruling amounted 
to a judicial usurpation of power, was contrary to our common law 
tradition, ignored fundamental concepts of due process, eviscerated the 
defendants' rights of appeal, and destroyed any appearance of 
impartiality scratched only the surface of Judge Sarokin's betrayal of 
the role of a judge in this litigation. Consider, for example, some of 
the many other respects in which Judge Sarokin's prologue was grossly 
inappropriate: What do his blanket assertions about the values of 
businessmen say about his ability to preside fairly in any dispute 
between an individual and a business? To whom is he referring as the 
other rising pretenders to the throne of concealment and 
disinformation?
  Incidentally, at his confirmation hearing, Judge Sarokin ultimately 
made only a modest concession: ``I concede that the language was strong 
and maybe unduly strong; and if I could take it back, I probably 
would.'' [60:11-13] The fact of the matter is that Judge Sarokin could 
have taken it back: these were carefully composed written comments, not 
off-the-cuff oral remarks.
  Judge Sarokin also stated that ``I was also hoping that I could 
discourage the tobacco companies from continuing to conceal the risks 
of smoking and deny that they existed.'' [110:20-23] This statement 
vindicates the third circuit's concern that Judge Sarokin was 
broadcasting his opinion on the ultimate issue to be decided by the 
jury. It also shows that Judge Sarokin was pursuing an agenda rather 
than simply deciding the legal issue before him.
  Similarly, Judge Sarokin's reliance in Haines on his familiarity with 
the evidence in another case, Cipollone, is a flat admission of 
predisposition and bias. Judge Sarokin was, in his words, ``unique[ly] 
position[ed]'' to decide the issue only in the sense that he had 
already made up his mind.
  Perhaps the most troubling aspect of this whole case is the manner in 
which Judge Sarokin responded to the third circuit's order removing him 
from the case. In referring to this removal in a written opinion, Judge 
Sarokin flamboyantly declared: ``I fear for the independence of the 
judiciary if a powerful litigant can cause the removal of a judge for 
speaking the truth based upon the evidence, in forceful language that 
addresses the precise issues presented for determination.'' In short, 
Judge Sarokin not only voiced his disagreement with the ruling of the 
higher court. He also cast aspersions on the independence and integrity 
of the third circuit judges by charging that a powerful litigant had 
caused them to rule as they did.
  Equally remarkably, unchastened by his well-earned scolding, Judge 
Sarokin personally accepted ``the C. Everett Koop Award for significant 
achievement toward creating a smokefree society.'' This award, from an 
organization called the New Jersey Group Against Smoking Pollution was 
given for the very comments that led to the third circuit's order 
removing him from the cigarette case. It is disturbing enough as an 
ethical matter that a judge would accept an award for an opinion in a 
particular case. It is beyond the pale that he would accept an award 
for a case in which he had already been found to have destroyed the 
appearance of impartiality, especially when the award is given for the 
very act that destroyed the appearance of impartiality.
  It is true that in removing him from Haines, the third circuit stated 
that Judge Sarokin ``is well known and respected for magnificent 
abilities and outstanding jurisprudential and judicial temperament.'' 
But in context, this can only be understood as sugarcoating a bitter 
pill.
  Yet another case that illustrates Judge Sarokin's willful 
implementation of his own agenda is Blum v. Witco Chemical Corp. [702 
F. Supp. 493 (D.N.J. 1988), rev'd, 829 F.2d 367 (3d Cir. 1987).] This 
case involved an award of attorney's fees in an age discrimination 
suit. In his opinion, Judge Sarokin first criticized and sarcastically 
attacked the governing Supreme Court precedent and the third circuit 
opinion construing that precedent. For example, he stated:

       The Supreme Court has sent a Christmas gift to this court 
     delivered via the Third Circuit Court of Appeals. It is 
     called ``How To Make an Attorney Fee Multiplier.'' However, 
     the instructions are so confusing and inconsistent that this 
     court has been unable to put the gift together. [702 F. 
     Supp., at 494-496 (citation omitted).]

  Significantly, Judge Sarokin purported to be ``duty bound to apply 
the [Supreme Court and third circuit precedent] to the facts of this 
case.'' [702 F. Supp., at 497.] But the third circuit, in unanimously 
reversing his ruling, found that Judge Sarokin had simply defied this 
precedent. In the Third Circuit's words, Judge Sarokin, ``without 
concealing its disapproval of both  the Supreme Court's decision and 
ours, proceeded in accordance with [his] own views.'' [888 F.2d, at 977 
(citation omitted).] The third circuit cited ``at least four respects'' 
in which Judge Sarokin had deviated from precedent, [id., at 981-983] 
and it scolded Judge Sarokin for ``superimpos[ing his] own view of what 
the law should be in the face of the Supreme Court's contrary 
precedent.'' [888 F.2d, at 983-984.] In short, the third circuit 
recognized that Judge Sarokin defiantly refused to follow precedent 
even while professing to follow it.

  One final case that warrants careful attention is Vulcan Pioneers v. 
New Jersey Dep't of Civil Service, [588 F. Supp. 716 (D.N.J. 1984), 
vacated, 588 F. Supp. 732 (D.N.J. 1984)]. This case is of particular 
interest because it illustrates Judge Sarokin's sympathies for 
unconstitutional race-based quotas.
  This case concerned a 1980 consent decree that some New Jersey cities 
entered into regarding the hiring and promotion of firefighters. The 
decree set numerical hiring goals, or quotas, for racial and ethnic 
minorities. A few years later, Newark, faced with a fiscal crisis, 
threatened to lay off firefighters. Both nonminority and minority 
firefighters went back to court to protect their respective interests. 
The union sought to have seniority honored, as required by State law. 
The minority firefighters sought to have the seniority system 
disregarded in favor of affirmative action quotas.
  In May 1984, when a ruling by the Supreme Court in Firefighters 
versus Stotts on this very issue was known to be imminent, Judge 
Sarokin modified the consent decree to require layoffs on a 
proportional basis rather than according to seniority. Thus, more 
senior nonminority firefighters were to be laid off in favor of less 
senior minority firefighters.
  In an especially bizarre twist, Judge Sarokin ruled that his order 
denying whites their seniority rights constituted an unconstitutional 
taking and that the Federal Government--which vigorously opposed Judge 
Sarokin's modification of the consent decree--should nonetheless be 
required to provide compensation for the taking.
  Shortly thereafter, the Supreme Court, in the Stotts case, 
effectively reversed Judge Sarokin's decision regarding the layoffs. In 
his original opinion, Judge Sarokin had expressed sympathy for the 
nonminority firefighters who would have lost their jobs under his 
ruling: ``Though not themselves the perpetrators of the wrongs 
inflicted upon minorities over the years, these senior firefighters are 
being singled out to suffer the consequences.'' In vacating his own 
ruling in June 1984, Judge Sarokin changed his tone and attacked the 
nonminority firefighters:

       The non-minority firefighters and the unions who represent 
     them resisted layoffs in this matter on the ground that they 
     were blameless and innocent of any wrongdoing. But, in 
     reality, they know better. If they have not directly caused 
     the discrimination to occur, many certainly have condoned it 
     by their acquiescence, their indifference, their attitudes 
     and prejudices, and even their humor. [588 F.Supp. at 734.]

  In short, once he was unable to pursue his own quota agenda, Judge 
Sarokin lashed out at those nonminority firefighters whom he thought 
should have had to lose their jobs.
  Mr. President, considerations of time do not permit me to explore in 
detail all the other matters that cause me grave concern over this 
nomination. So let me conclude with the observation that Judge Sarokin 
has shown, time and time again, that he will pursue his own liberal 
ideological agenda on the bench in lieu of applying the law. If he is 
elevated to the federal court of appeals, Judge Sarokin would have even 
greater freedom and opportunity to implement his own ideological 
biases. And so I say to my colleagues, if you truly respect the 
fundamental distinction between judging and policymaking, if you truly 
care about handcuffing criminals rather than the police, if you truly 
want judges who follow precedent and apply the law, you should vote 
against the confirmation of Judge Sarokin.
  Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. BIDEN. Mr. President, I have great respect for my friend from 
Utah but I must tell you, I used to have a teacher in high school who, 
when we would stand up and say something in defense of a position we 
used to have to defend--he would put forward a proposition and the 
question was put before the class: Defend or reject the proposition. 
Some would stand up and debate form and debate style and make some 
conclusory statements, unsubstantiated by the facts. And he used to 
look down and say, ``Poppycock.'' I never used to know what poppycock 
meant literally. I knew it meant you did not like whatever someone 
said, but you had to sustain your point.
  I was reminded of that because there is a lot of poppycock today. I 
thought we were refighting the crime bill. The Republicans tried to 
exercise their gridlock and filibustered for a total of 2 years in 
earnest. They tried the last time to defeat the crime bill. They told 
the public how awful this crime bill was. We passed the crime bill, the 
toughest crime bill. Even a Wall Street Journal poll says the American 
people support what we passed, including the prevention provisions.
  Here we are again. We have now this new deal that somehow the 
Republicans tried to make the crime bill tougher. I say poppycock, they 
did not make anything tougher. I wrote that bill. I wrote into the bill 
the death penalty, the enhanced penalties for the commission of certain 
crimes. They added nothing. They added nothing except gridlock. They 
added nothing except saying no. And now this crime bill, which I guess 
they like parts of now because it is playing differently out there, 
somehow they made some contribution to it.
  Six or seven Republicans did make a contribution. They voted for the 
crime bill. It passed because of their help. I guess that makes it 
bipartisan.
  We have a new definition of bipartisan. If you can get three 
Republicans to raise their hands and say they are for something, it is 
now bipartisan.
  Look what we are going through here. We just went through this 
exercise in gridlock. We were forced to go to a cloture vote on this. I 
ask the clerk--72 Members voted for cloture? What the devil did we have 
the cloture vote for? The reason we had the cloture vote is they wanted 
to stall. They wanted to stall, stall, stall, stall, stall. My friend 
from Michigan said the GOP should be renamed the ``Gridlock Only 
Party'' instead of the ``Grand Old Party.'' This is gridlock only.
  Why do we have to negotiate this thing for days to get this to the 
floor--and I will say for the Record, my friend from Utah tried to get 
a time agreement so we could do this. No, we are forced to go to a 
cloture vote, eating up more time. Why? So we do not get to other 
things on the agenda we should deal with. Here we are now relitigating 
the crime bill with the debate on this judge.
  Pretrial detention was mentioned. I am having my staff check to be 
precise about this, but I am 90 percent certain that that is a bill 
that I drafted in 1984, the Bail Reform Act of 1984. It never occurred 
before. The Democrats put that bill in place back in 1984.
  Mr. President, we have done so much good stuff on crime, I have 
forgotten what we have done--what, when, the time. So we have pretrial 
detention. That came out of my subcommittee because what I found was 
more and more of these drug dealers were posting bail. The Presiding 
Officer knows this better than anyone. Down in Florida, you arrest 
somebody, the judge would post a million dollars bail, they would post 
their bail and leave because they had $5 or $7 or $10 million from a 
drug deal they did. That is why we put in pretrial detention, and it 
has worked. The Democrats did that.
  Now I am told, OK, we have a judge here: ``Isn't he a terrible guy? 
Yeah, he's brilliant; yeah, he's this, he's a terrible guy,'' because 
he made a speech and it was recorded in the West Virginia Law Review, I 
think it was, speaking to a bunch of Law Review editors, and he stated 
the obvious. Pretrial detention is, in fact, on its face--and I am the 
guy who proposed it, OK--it is on its face a contradiction to the 
presumption that someone is innocent, if you just look at it in 
layman's terms, because usually we say, OK, you are accused. What we 
are going to do, as long as we think you are going to show up for 
trial, what we do is we let you go free until you have a trial, and 
they decide at the trial whether you are guilty or innocent. The 
presumption is you are innocent, though.
  We did this unusual procedure, relatively speaking, because we found 
that people, even though we still had the presumption of innocence, 
that they, in fact, were skipping town after posting an awful lot of 
bail because it did not matter to them because they were probably 
guilty, is why they did not come back. So we accommodated that.
  That cannot be done anymore. If a judge finds they are a danger to 
the community, and a few other things, he can say, ``We are going to 
keep you in jail until your trial,'' because, again, the Democrats 
passed the Speedy Trial Act Amendments Act, which I did author with the 
help of a staffer named Mark Gitvenstein in 1979, saying you have to 
take someone within 60 days--90 under certain exceptions, another 30 
days--because we found these are the people out there committing the 
crimes, people out on bail.
  So now we are told that we have a judge, appointed by this awfully 
liberal President and this liberal panoply of judges we have now voted 
for under this liberal environment. And we say this judge made a 
critical comment or an observation--not even a critical comment--about 
pretrial detention. What he was doing, he was talking to a bunch of Law 
Review editors basically saying, ``Look, the mood out there is ugly and 
we have a serious problem with crime and what we have to keep our eye 
on here is we do not give up civil liberties, the thing that ultimately 
protects us as citizens, in order to get at the bad guy.''
  That was the thrust of what he was saying, and he stated the obvious 
about pretrial detention. But let me tell you, in over 100 cases, this 
judge affirmed keeping someone in jail without bail before trial. Over 
100 times. Where is this wacko liberal judge who is against pretrial 
detention, that you would think, listening to my Republican friends, 
they invented? Like all of a sudden now they somehow are for the crime 
bill. This is absurd.
  Let us talk about these liberal judges my friend from Utah keeps 
talking about. Let me just state the record. You all draw your own 
conclusions. We have had two Supreme Court Justices. Unlike previous 
Presidents, this President did not pick people based on an ideological 
litmus test, and he said he was going to pick moderate, mainstream 
judges. He did. He has only had two chances to pick Supreme Court 
Justices, and who did he pick? Justice Breyer and Justice Ginsburg. 
Every single person in the academic world writing about them is talking 
about them forming the moderate middle with Kennedy, O'Connor and I 
think probably the best Justice that we, in my view, have ever 
confirmed since I have been here, Justice Souter, a Republican Justice.
  If this President were as these guys paint him, why did he not send 
us left-wingers, like President Reagan and Bush sent us right-wingers 
most of the time? Why did he not do that? And if they were so bad, why 
did they not vote against them?
  Mr. President, Republicans overwhelmingly voted for these two wacko 
liberal judges. The vote counts for these two Supreme Court Justices 
were 96-3 for Justice Ginsburg, and 87-9 for Justice Breyer.
  We have confirmed out of the committee 72 Federal judges. Again, I 
thank my Republican colleagues--and I mean this sincerely--on the 
committee. Under the leadership of Senator Hatch, they have not 
engaged, in that committee, in gridlock. They have let these people 
come up and be voted on, this liberal cadre of judges which, out of 72 
judges, 70 passed with unanimous consent.
  I may be mistaken--I see my friend from Montana on the floor, he is a 
conservative Republican. I see other people come on the floor. I do not 
remember them saying, ``By the way, these liberal judges you Democrats 
are putting through, stop them.'' To the best of my knowledge--and I 
will stand corrected and I may be wrong, I may be a judge or two off--
twice we have been asked to vote on a judge on this floor and there has 
been objection. One was Rosemary Barkett, a distinguished justice from 
the State of Florida, and the second one was this one.
  Maybe there has been a couple of others that never got out of 
committee. There have been some that did not get out of committee. Once 
they got to the floor, if you listen to my friend, you would think--if 
you are sitting in the gallery or watching on TV--they would have been 
pushing through a bunch of really liberal judges out there and that 
this has been a real fight and this has been tough.
  Look at the Supreme Court of the United States of America and the two 
judges that a Democratic President and a Democratically controlled 
Senate with the overwhelming support of Republicans voted for. Are they 
the liberals he is talking about? Are they in this panoply of liberal 
activists that he is talking about? Or maybe it is--I think we 
confirmed--I will ask my staff who does nominations to give me an exact 
number. But I think we have confirmed roughly 70 Federal court judges 
so far. I want to be precise. I believe we confirmed 70 so far. We have 
not confirmed them on the floor of the U.S. Senate. They are passed--72 
judges we have passed so far out of the U.S. Senate to take their seats 
on the bench. Where are the liberals among them? Where are these 
activists among them?
  I do not quarrel with the fact that my friend from Utah or any of my 
Republican friends argued against Rosemary Barkett, or argued against 
this judge. But to turn that into what sounded like the speech that 
somehow there is this overwhelming liberal bias in putting these 
criminal-loving judges on the bench is preposterous, or, as my high 
school teacher would say, ``poppycock.''
  Let us look at the two judges that have been the focus of opposition, 
legitimate by the way. I do not argue with the right of any Senator or 
group to stand up and say that judge is too conservative, that judge is 
too liberal, that judge is not honest, too honest, whatever they want 
to say. They have a right to do so. Rosemary Barkett, I have been 
hearing some of the political advertising that has been going on around 
this country and arguments against her, and this is incredible. It is 
absolutely incredible. As a matter of fact, I am told Senator Hatch--I 
was off the floor--in his opening statement mentions Rosemary Barkett 
as a soft-on-crime judge. I will come back to that because I want to 
speak to that. But that is preposterous as well. But, at least we are 
in the ball park because they have been involved in some controversial 
decisions, both Barkett and Sarokin.
  I want the record to show, and I challenge anyone here to come on the 
floor--any Republican or any Democrat to come on the floor --and 
sustain the argument that this President has sent up and we have 
confirmed a bunch of liberal ``1960'' judges who are soft on crime. I 
challenge anyone. I hope everyone back in their office is listening. I 
ask every Republican Senator to come to the floor and make that case. I 
want to hear it. I am fascinated by it because, if it is true, why did 
they let go by consent--which is the same in this place as unanimously 
passing--the vast majority of these judges? I guess because they are 
soft on crime, or they are procriminal. Is that the reason?
  So, No. 1, I hope we will stop this malarkey about judges generally 
in this administration.
  Let us get specific about these two judges. One of the things is that 
we are told--and a couple of cases are taken, I would argue, slightly 
out of context although I would argue not intentionally by people who 
have spoken thus far about how bad this judge is because they give a 
fact pattern in a case that actually occurred and let this person go. 
First of all, let us make it clear. This judge did not let anybody go. 
He has ordered a retrial in the case that we keep hearing about, a case 
involving a fellow who was convicted in the lower court of killing a 
cop. He ordered a retrial. Let us get that part straight.
  Again, I have seen a couple of ads where people actually ran ads in 
this political campaign period. So letting free these people saying you 
have to have a new trial is not letting you go free. At least I do not 
think it is. I do not think any legal scholar would say it is. No one 
with any shred of intelligence would say it is. But some without the 
intelligence, some without any insight, some engaged in pure 
demagoguery would say it is. No one on the floor has said that to the 
best of my knowledge. I am commenting on the universe of what I am 
hearing out there and some of ads.
  But let us focus on this case. If you take a single case and say you 
draw a conclusion from that case, like with Rosemary Barkett, they say 
she is against the death penalty. She voted for the death penalty well 
over a hundred times. She voted for the death penalty as a supreme 
court justice in Florida over a hundred times. But she is against the 
death penalty.
  Now we are hearing this guy is soft on crime because of a case they 
cite involving a guy named Landano. I would suspect that there is no 
one in this Chamber who would argue, for example, that who do you think 
the most--if we were to sit down and say, OK, let all of us in the 
Chamber pick out who we think is the most well-known conservative judge 
in all of America is. I will make you a bet. No, I can prove it. But I 
will make you a bet if you gave everybody 5 minutes and told them to 
write down on a piece of paper, every Member of this body, who they 
thought the most conservative judge or jurist in America is, I will bet 
you anything that you would get the name Scalia written on a piece of 
paper more than any other name.
  I doubt whether anybody would suggest that Justice Scalia is a 
liberal. As a matter of fact, he is the most brilliant conservative 
Justice and jurist probably in the country. He is anything but soft on 
crime.
  Let us reverse roles here. Let us assume Scalia was up for 
reconfirmation and I wanted to make the case because we know it is 
damaging if you say any judge is soft on crime, and I went through the 
following case with you. Let me make sure I have the facts exactly 
right. I stood on the floor and turned to my friend from Iowa who is 
standing on the floor and others and said, you know, can you believe 
what this judge did, this procriminal judge, this prodefendant, anticop 
judge named Scalia did?
  Let me tell my friend what he did. In 1987, when he sat on the 
Supreme Court of the United States in a case which was originally a 
Florida case, Justice Scalia wrote an opinion for the Court. Justice 
Scalia wrote that he should reverse the death sentence of a man who was 
convicted of strangling his 13-year-old stepniece. These are the facts; 
strangled his 13-year-old stepniece. The defendant confessed that he 
had killed his stepniece. And do you know why he killed her? He said he 
killed her because she threatened to tell her parents that he had 
intercourse with her. So he raped her. These are the facts. She was 13 
years old. He raped her. She threatened to tell her mom and dad and he 
killed her. And then he admitted that he killed her and told the reason 
why he killed her. And guess what? That ``radical, liberal'' Judge 
Scalia insisted that the case of that person who was sentenced to death 
be sent back. He insisted that the State of Florida erred and they 
should reconsider and hear additional evidence as to whether or not 
that person should get the death penalty. I can see the gallery sort of 
nodding--my God, how could he do that? He must be a cop hater. He must 
be a wacko liberal. Obviously, that is why he did that.

  Well, obviously, Justice Scalia is no liberal. Obviously, Justice 
Scalia is a pantheon of conservative intellects serving on the Court--
and he is--who is anything but prodefendant. But guess what? He is a 
judge. He is required to follow the law and the Constitution. And out 
of all the cases, he wrote, for a unanimous Court, that this guy, who 
raped and then murdered his niece when she threatened to tell her 
parents, should have his case heard again. Maybe we should start a 
petition to impeach him. My conservative friends might vote for that. 
Let us impeach the judge for doing this.
  Mr. HATCH. Will the Senator yield on that point?
  Mr. BIDEN. Yes.
  Mr. HATCH. Is it not true that he later repudiated that?
  Mr. BIDEN. I do not know whether he later repudiated it. But is there 
a denial he wrote that?
  Mr. HATCH. No, not at all. He has later repudiated that. Our argument 
is that he has not applied existing precedent. He made precedent out of 
old cloth.
  Mr. BIDEN. I will get to that. We have no disagreement as to what 
Scalia did. My friend said that is what all of them did, and he is dead 
right. He made the right decision under the Constitution and law and 
existing precedence. The point I am making is that you can stand up 
here and take the hundreds of cases that any judge has decided and find 
a gruesome fact pattern--in fact, patterns--that in fact would make it 
look like this judge must be, for example, against pretrial detention. 
There is one paragraph out of a law review article, even though over 
100 times he has held people without bail pending trial. There are a 
total of 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 sentences.
  Mr. BRADLEY. Will the Senator yield at that point?
  Mr. BIDEN. Yes.
  Mr. BRADLEY. It should be re-emphasized that not only was this a 
comment, there is nothing in or around these sentences you point to 
that says in any way whatsoever that Judge Sarokin opposes pretrial 
detention. There is no sentence stated anywhere that he opposes 
pretrial detention. To the contrary, since he has been a sitting judge, 
he has ordered pretrial detention in over 100 cases.
  So I think the Record should reflect what the facts are.
  Mr. BIDEN. The Senator has made the point more clearly. He was 
commenting, as I read the article, on the overall environment and why 
these young law review editors should, in fact, focus on the 
Constitution and not forget the underlying basic principles in the 
Constitution.
  But, again, I want to make it clear for the record that Justice 
Scalia is a fine and honorable Justice. Justice Scalia is not a 
liberal; he is not prodefendant; Justice Scalia is not someone who 
probably was appalled by the facts in the case I read. But he applied 
the law, as Judge Sarokin did, as he saw it and believed it to be. But 
you can make anybody look like they are foolish by citing these cases, 
by picking out a handful of cases. The fact of the matter is that in 
the case of Landano, the one they keep referring to about why he is 
soft on crime, on February 25, 1994, the appellate division of the 
State of New Jersey overturned the New Jersey trial court ruling and 
agreed with Judge Sarokin on virtually every count, finding that the 
prosecutor withheld exculpatory evidence in granting Landano a new 
trial.
  The New Jersey appellate court found independently what Judge Sarokin 
found. Let me cite the grounds upon which they ordered a new trial, and 
they did not set anybody free.
  First, the State suppressed evidence that Joseph Pascutti, the only 
eyewitness to the shooting, rejected Landano's photograph because the 
perpetrator had curlier hair than Landano. In other words, the 
prosecutor had that evidence. The chief witness against, the only 
eyewitness against Landano--I do not care whether he is guilty or 
innocent--but the only eyewitness initially, when the cops gave them 
the photograph of Landano, said, ``No, that is not him. The other guy's 
hair was a lot curlier.'' They had that. Under our rules that exist for 
fair trials in America, the prosecution is supposed to share that 
evidence because, remember, the prosecution's job is not to convict, it 
is to do justice. That is why we have that rule. That is why we have 
the rule. That was the first thing the appellate court said in New 
Jersey. It stated this evidence, and they did not tell it during the 
trial so that they would have all the facts. They did not tell the jury 
they had that.
  The second thing was that the State--the prosecutor--suppressed 
evidence that his chief witness, Roller, an alleged accomplice, 
committed two armed robberies similar to the one for which they 
convicted Landano and that the State suppressed further evidence that 
the witness and his closest associate had committed an earlier armed 
robbery in Jersey City in 1975, in which the gun used to kill officer 
Snowe had been fired. That evidence, again, under our rules, generally 
speaking, to do justice, they were supposed to let the jury know that 
and let the defendant know that, and they did not.
  The third reason why the New Jersey court--not Sarokin, the New 
Jersey court--agreed with Sarokin independently was that the State 
further suppressed evidence that its principal identification witness, 
the proprietor of the check-cashing shop, Jacob Roth, was under 
investigation for having ties with organized crime and was suspected of 
having engaged in loan sharking and money laundering. That can provide 
motive, among other things. And, further, on the very day that the 
witnesses' earlier tentative identification of Landano became positive, 
he was questioned about his involvement in illegal activities. So you 
have this guy Roth, who is under investigation. The day that he 
identifies Landano is the day that he is being questioned for further 
illegal activities and potential ties with organized crime.

  Why is that important for a jury to know? The jury can weigh that 
evidence. But it may be they figured, oh, wait a minute. If we know 
that, maybe Roth made a deal. Maybe Roth is trying to get himself out 
of difficulty.
  I do not know that to be the truth. No one knows that is the truth. 
But the jury is entitled to know that.
  The fourth thing that the New Jersey appellate court found was 
another witness, a waitress who had seen the co-defendant and his 
companion the day before and the morning of the robbery and killing, 
also rejected Landano's photograph because the individual that she met 
was younger than Landano. The State had that evidence, too.
  Now, under our system, just like Judge Scalia had to send back that 
case I talked about where a guy admits to raping and murdering his 
niece because she was going to tell her mom and dad about being raped, 
this judge said, hey, wait a minute, under our system, you are not 
allowed to do that, prosecution. Go back and give this guy a fair trial 
under what we have 100 years of precedent for.
  That is what happened here. But to listen to my friends, you would 
think we have a guy out there saying:

       You know, these guys who kill cops, I cannot blame them 
     really. They were raised in an environment where police were 
     not nice to them. And you know what further happens is they 
     probably did not get the right formula when they were kids 
     and they were in a position where that affected their psyche 
     and they were raised in a circumstance in a community that 
     has an antagonism toward police. So I can understand and 
     empathize with someone who would go kill a cop.
  That is what they make it sound like, this sort of psychobabble that 
comes from the far left.
  Well, the problem is I am not, and Senator Bradley, the President, 
the judge, are not on the far left. Republicans would like to get us 
there.
  But back to the thing I said this morning, I say to my friend, who is 
a graduate of Harvard Law School, in school we used to talk about red 
herrings. When there is a fact thrown in that has nothing to do with 
anything that has to do with the case, it is to throw you off, that is 
a red herring. That has nothing to do with this. Or it is a straw man. 
We are setting up a straw man here to knock down with his liberal 
psychobabble they talk about.
  That is not this judge, again, anymore than Scalia is the judge--if I 
took that one case and that was the only thing you knew about Justice 
Scalia, what would my colleagues in here think? If I gave you nothing 
but that, you knew nothing at all about Scalia except that case, you 
would say: ``Oh, my God.'' You would not say you know he is an honest 
jurist required to follow the law and precedents. He did that. We would 
all stand up here because we do not want to offend anybody and we would 
say: ``Oh, my God, he is one of those wacko liberals, lover of cop 
killers, lover of people who rape 13-year-old nieces.''
  It is ridiculous. It is beneath this place. It should be beneath this 
institution. But, my lord, I keep hearing it and hearing it and hearing 
it.
  I am talking too long, and I do not want to delay this. I have two of 
my colleagues here to speak, and I will have plenty of time to rebut 
their assertions, although maybe I will agree with their assertions. 
They are all enlightened people, and redemption is all part of the 
process. Now that they know some of the facts, they may change their 
views. For the Record, I am being facetious.
  Pretrial detention. In a speech to law students that Senator Hatch 
referred to, Judge Sarokin talked about pretrial detention--keeping 
accused persons in jail before they have been charged. In this academic 
speech, Judge Sarokin said that this type of detention before trial was 
in some conflict with the presumption of innocence.
  But you have to look at what Judge Sarokin has done as a judge. As a 
judge, he has detained hundreds of defendants before trial, applying 
the law as passed by Congress, without flinching.
  So whatever Judge Sarokin may have said in an academic speech is not 
relevant to our task today. Our task today is to look at his record as 
a judge, and that record shows he is entirely willing to detain 
defendants before trial, as the law requires.
  I also will at a later time, in response, speak in more detail to 
what I think is an emerging pattern here, at least as we get closer to 
an election, of characterizing the actions of judges in what I think 
are a distorted fashion.
  I am not suggesting everyone who votes against Judge Sarokin is 
engaging in misrepresentation. There is reason enough if you want to 
vote against Judge Sarokin. The Constitution says to give advice and 
consent. It does not set out how you give it. It does not say it has to 
be reasonable. It does not say it has to be based on anything at all 
other than what you think your particular inclination or whim is at the 
time. It does not set out in any detail the circumstance under which 
you can exercise or withhold that consent. So, that is everyone's 
right.
  The only thing I am asking for here is I am asking to put in focus, 
No. 1, where all of the judges, if you take them all as a whole, who 
have been sent up by this President fit in the political spectrum. You 
will not find any conservative or liberal act of omission, who is an 
expert on the Court, who will say that this is a new left-wing coterie 
of judges that has been put in place by this President and this Senate. 
It simply does not even approach reality.
  No. 2, as to the assertion that you have this overwhelming liberal 
machine that is running through this place and putting all these judges 
on the bench, I again cite for you that we have had 72 judges 
confirmed. I do not know of any of those judges who did not either have 
a majority of all the Republicans, or all of the Republicans through 
unanimous consent before them, and of the two Supreme Court Justices no 
one is accused of being liberal.
  As a matter of fact, if my friend, the Presiding Officer, will 
recall, those who opposed them and spoke against them were liberals. It 
was Howard Metzenbaum who did not like Breyer--not personally did not 
like him--but his concern that Breyer was too liberal. Most of the 
questions about Breyer, the new Supreme Court Justice, were from the 
left and not the right, from the center and not the right.
  So I hope we will stop this malarkey about procrime/anticrime judges 
and justices, and the like. Maybe as we refine further the criminal 
justice system, maybe from this point on we will actually have 
Republican participation and willingness to pass something as we go 
down in terms of and start to deal with our whole effort to deal with 
drugs in society and our antidrug legislation.
  Other than Barkett and possibly this nominee, a majority of 
Republicans, to the best of my knowledge, voted for every one of the 
other justices. Again, I will stand to be corrected on that if that is 
not true.
  So if that is the case, either we have a majority of Republicans who 
are liberals or these judges are not, and they are mainstream, moderate 
judges by and large.
  But as I said, there is much more to say on this. I see my friend 
from New Hampshire is here. I will be delighted to yield the floor to 
him or anyone else who seeks recognition.
  The PRESIDING OFFICER (Mr. Breaux). The Senator from New Hampshire is 
recognized.
  Mr. SMITH. Mr. President, I rise in opposition to the confirmation of 
President Clinton's nomination of H. Lee Sarokin to be a circuit judge 
of the U.S. Court of Appeals for the Third Circuit.
  Mr. President, true to his political strategy--and I think it is a 
political strategy--of portraying himself as a ``New Democrat,'' Bill 
Clinton has done an awful lot of talking on crime and about how we need 
to be tough on crime in this country. I certainly agree with him that 
we do need to be tough on crime.
  But as the old proverb tells us, ``actions speak louder than words.'' 
And President Clinton's act of nominating Judge Sarokin to the U.S. 
Court of Appeals, the level of the Federal judiciary just below the 
Supreme Court, speaks volumes, I believe, as to how the President 
really stands on the issue of crime.
  Frankly, Mr. President, Judge Sarokin's views on criminal law issues 
make him better suited, I think, to a seat on the board of directors of 
the American Civil Liberties Union than a seat on the U.S. Court of 
Appeals.
  Now, some would say this is harsh. But I want to point out that in 
this country today there is a great wave, almost, I would say, a tidal 
wave of support for dramatic efforts in this country to put away 
criminals, especially violent ones, make them serve their sentences and 
keep them from preying on the rest of us in society. In order to do 
that, you have to nominate and ultimately appoint and confirm tough 
judges. That is the secret.
  Ask anybody. Ask any law enforcement official about how they feel 
about the sentences that judges give out and then on top of that the 
situation when they get out on the street not too many years after they 
have been sentenced.
  We see in the State of Virginia Governor Allen's no parole; 
overwhelming support in the State. This is a wave that is going across 
this country.
  But the President is not caught up in that wave, I regret to say. He 
is in rhetoric, I would agree, but in the actions, in the nominees that 
he is sending to the judiciary, unfortunately, it does not back up the 
President's rhetoric.
  As the recently enacted crime bill demonstrated, those who control 
the White House--and both Houses of Congress, I might add--believe 
passionately in what I believe to be the fundamentally misguided notion 
that a lack of sufficient government spending on social programs causes 
crime. It is as if to say, if we do not spend hundreds of millions and 
billions of dollars on all of these social programs, if we do not do 
that, we are not doing our part to stop crime.
  Now, we have been spending hundreds of millions of dollars and 
billions of dollars on social programs and we still have crime. Not 
only do we have crime, we have more crime than we had when we started 
spending the money on these social programs.
  Speaking at a conference in Washington in May of this year, Judge 
Sarokin made it clear that he is an enthusiastic proponent of what I 
believe to be an erroneous point of view.
  ``If we truly want to deal with crime and make our streets pleasant 
and safe,'' Judge Sarokin proclaimed, ``we must identify the mentally 
and physically ill, the drug addicts and the alcoholics, and then 
either treat them or hospitalize them.'' ``And,'' Judge Sarokin 
continued, ``we must feed, clothe, and shelter the homeless and, most 
important, for those who can benefit, we must educate and train them so 
that they can have some hope and some reason to live.''
  Now, I am not critical at all of identifying mentally and physically 
ill people, treating them, hoping to treat alcoholics and drug addicts 
and see that they recover, hospitalize the sick, feed, shelter, and 
clothe the homeless. There is nothing wrong with any of that. But what 
does that have to do with the violent crime in the United States of 
America today?
  Mr. President, as that quotation demonstrates, Judge Sarokin does not 
get it. He just does not get it. ``It's the criminal, stupid,'' to use 
an expression that was used in the last campaign, referring to the 
economy. Criminals cause crime.
  Why do we all have to feel guilty because somebody who had a tough 
childhood or some social problem commits a violent crime? And it is our 
fault, not his fault or her fault; not the perpetrator of the crime. It 
is not their fault. It is society's fault--do not accept any 
responsibility in society today, absolutely not; blame somebody else; 
whatever happens to me, it is somebody else's fault. If I commit a 
murder, it is not my fault. I had a tough childhood. I did not get any 
help from the rest of society when I needed it. So, therefore, somebody 
else is to blame for the fact I killed somebody.
  In his public statements, his written articles, and his opinions in 
cases on which he has sat as a Federal district judge, Judge Sarokin 
has shown time and again that he has inordinate sympathy for criminal 
defendants, that he has a disturbing attitude toward law enforcement, 
and that he gives insufficient weight to the requirements of public 
safety.
  This is the nomination that we are faced with here today on the floor 
of the U.S. Senate. The President makes a choice. We do not challenge 
that. We confirm. The question is, if you want someone who is tough on 
crime, really tough on crime, is Judge Sarokin your man? Not in my 
estimation.
  A prime example of this, what I call, soft-on-crime philosophy is 
Judge Sarokin's steadfast opposition to the preconviction detention of 
criminal defendants. In a 1988 article entitled ``Beware the 
Solutions!'' which was in the West Virginia Law Review, Judge Sarokin 
stated his belief that any incarceration of accused criminals violates 
the presumption of innocence and, therefore, he opposes ``[p]utting 
people in jail before they are convicted.''
  Now, that is a very, very dramatic and far-reaching statement--very 
much so. A violent person who is accused--admittedly accused--of a 
crime but a very violent one should not be jailed. The people around 
that person in that community should not be protected from that person, 
even though he committed a violent crime or may have committed a 
violent crime, is accused of committing a violent crime. He should not 
be incarcerated. We should leave him out on the street.
  So that would include, I suppose, under the judge's definition, 
Charles Manson, Sirhan Sirhan, and others. Let them back out. They are 
not convicted yet. Leave them out on the street. Maybe they will do it 
again to somebody else four or five more times. How many times do they 
have to do it, I would say to the judge? Do they have to kill 25 times, 
6, 7, 8, 15, before we finally say, ``Well, this is a violent person; 
we ought to keep them incarcerated pending trial''? How many times? 
What is the threshold?
  The time-honored presumption of innocence, however, relates to 
conviction and not to preconviction detention. And that is a very 
important point.
  As the Washington Post reported in a July 1994 news article, more and 
more violent crimes are being committed by criminal defendants who are 
released pending trial. The American people are not interested in this 
kind of a judicial attitude. The American people are interested in 
trying and convicting and punishing violent criminals. Period. They do 
not want them out on the street.
  Judge Sarokin does not get it. President Clinton does not get it, 
because if he did he would not be sending this nomination to the U.S. 
Senate.
  This same Post report focused on how witnesses to crime are 
increasingly being terrorized and even murdered. The people who 
witnessed the crime are being terrorized and even murdered by the 
accused. If Judge Sarokin's extreme view were to become the law, I 
believe this trend would get worse.
  Mr. President, not only does the judge that is before the Senate 
right now for confirmation, Judge Sarokin, think that the accused--and 
often dangerous--criminals should be allowed on the streets before they 
are convicted, he is also a very strong supporter of a liberal legal 
doctrine that makes it harder to get them convicted at all--at all.
  In his West Virginia Law Review article, Judge Sarokin stated his 
opposition to even the good-faith exception to the controversial so-
called ``exclusionary rule. Judge Sarokin believes that suppressing 
evidence obtained by a search that is later to have been determined to 
have been improper is necessary to deter police lawlessness, even when 
the police acted in the good faith belief that their search was 
conducted properly, and even when it means that a guilty defendant will 
go free. Even in that circumstance, even in that circumstance, Judge 
Sarokin believes that this evidence obtained by that search is 
improper.

  This is a very liberal view of the law--a very, very liberal view of 
the law. And in my opinion out of touch, way out of touch with the 
mainstream of the citizenry of this country.
  Judge Sarokin took this view, even though the Supreme Court 
recognized just such a good-faith exception to the exclusionary rule 4 
years before his law review article appeared. Not only does this judge 
think that even violent criminals should roam free pending conviction, 
and not only does he have a view of the exclusionary rule that makes it 
more difficult for prosecutors to get criminals convicted, but Judge 
Sarokin also opposes tough sentences even for criminals who have been 
convicted. In this very revealing article in the 1988 West Virginia Law 
Review, Judge Sarokin took the position that he is opposed to 
``mandatory and uniform sentencing.'' Such tough-on-crime approaches to 
criminals, the judge says, ``deprive judges of the right to grant 
mercy.'' That deprives judges of the right to grant mercy.
  So, this judge wants the right to grant mercy to a convicted 
murderer. I do not think the American people are interested in mercy 
for a convicted murderer. How about some mercy for the victims? How 
about some compassion for the victims of the murderer, and their 
families?
  We see, again, the judge and the President just do not get it. That 
is not what the American people are saying when they say get tough on 
crime. Again, it goes back to the crime bill debate. Everybody is 
against crime. Where we differ is punishment for the crime committed--
that is where we differ. That is where Republicans and Democrats have 
had some huge debates on this issue. Do you punish the violent criminal 
or not? That is why parole in Virginia was eliminated--or will be. That 
is why, because in Virginia, as well as other States all across 
America, they are sick and tired of the rhetoric, they are sick and 
tired of the inaction, they are sick and tired of judges letting people 
out on the street as fast as the police officers arrest them. That is 
what the American people are saying. And if you want to change it, you 
want to stop it, you cannot put judges in powerful positions like this 
one. And in spite of the rhetoric, in spite of all the talk on the 
tough crime bill, here comes this appointment.
  Thus far I have illustrated Judge Sarokin's liberal philosophy on 
crime by quoting from a speech that he made, and from his 1988 law 
review article. Let us take a look, now, at his judicial record on the 
U.S. District Court for New Jersey. In 1984, in the case of U.S. versus 
Rodriguez, which I know has been discussed earlier in this debate, the 
defendant was arrested on theft-related charges and given his Miranda 
warning. In addition, the defendant was then provided with a form, 
again advising him of his rights, and stating that by voluntarily 
signing the form--voluntarily signing the form--he could agree to waive 
those rights. Rodriguez did, indeed, voluntarily sign the form, thus 
indicating his waiver of his rights. But in so doing he used a false 
name.
  Notwithstanding Rodriguez's voluntary written waiver of his rights, 
Judge Sarokin granted the defendant's motion to suppress his subsequent 
incriminating statements to the FBI--to suppress his incriminating 
statements to the FBI. Ruling in direct contravention of governing 
third circuit precedent, Judge Sarokin contended that Rodriguez' use of 
a false name made his waiver of rights somehow involuntary.
  I guess that sends out a pretty clear message to anybody who is 
apprehended by a law enforcement official anywhere around the country, 
does it not? If you get caught red-handed, give a false name and you 
are home free. That really makes a lot of sense. I guess there are 
people--judges, I suppose are a lot smarter than the rest of us. They 
seem to be a lot smarter than the American people--at least they think 
they are. You tell me how in the world anyone could justify that kind 
of an argument? That is what it says. All the criminals out there 
listening to this debate, or any potential criminal, just give a false 
name and you are home free. Do not sign your name because then you have 
given yourself the waiver. Sign somebody else's name and you get off. 
The Rodriguez case demonstrates Judge Sarokin's propensity to ignore 
settled, governing law in order to create loopholes for criminal 
defendants. That is a fact.
  Perhaps the worst example of where Judge Sarokin's soft-on-crime 
judicial philosophy has led him in the criminal cases that have come 
before him on the district court is his record in the case of a 
convicted cop killer by the name of James Landano, a case to which a 
number of Senators have alluded to and referred to during this debate. 
Judge Sarokin was reversed no less than 4 times--4 times--by the U.S. 
Circuit Court of Appeals and the U.S. Supreme Court during the course 
of his consideration of the Landano case.
  In one of his opinions in that case, Judge Sarokin offered the 
following social commentary. Remember, Landano was a murderer, a cop 
killer. Here is what the judge said.

       We must ask ourselves why the current clamor and rush to 
     carry out death sentences, but no similar urgency in freeing 
     one who might be wrongly convicted and confined. * * * Rather 
     than crying out for speedy convictions for those who have 
     been convicted of capital crimes, we should be crying out for 
     prompt release of those who may have been wrongly convicted 
     and confined--cries of freedom rather than death.

  It is interesting, no one would disagree that if somebody is wrongly 
convicted we should be crying out for prompt release. But why would you 
make a statement like that during the case of a convicted cop killer? 
It is obvious, because, again, the sympathy is with the accused. The 
sympathy is with the killer--not with the victim. Do you hear the 
victim mentioned anywhere? Not that I hear; not that I read.
  Mr. President, that statement by Judge Sarokin in this case seems to 
me to reveal a very clear prejudice on his part toward the death 
penalty. President Clinton has said--this is where it really gets 
interesting. Let us just put the rubber right on the road. President 
Clinton has repeatedly said he supports the death penalty. Once again 
we see a certain divergence, to put it kindly, as nicely as I can, 
between Mr. Clinton's tough-on-crime rhetoric and his latest soft-on-
crime judicial nominee.
  Actions do speak louder than words. Is it not a pretty simple 
question that involves a basic simple answer? If you are for the death 
penalty, and you are the President of the United States, why would you 
not appoint judges who are for the death penalty? You are only 
President, if you are lucky, for 8 years; and most for 4. You do not 
have that many judicial appointments, nominations. When you make them, 
why not appoint people who back up and support your feelings on the 
various issues?
  Here again, this is not the first one. There have been others. He 
sends us a judge who does not support the death penalty. So do not tell 
me President Clinton supports the death penalty. I know he carried it 
out as a Governor of Arkansas. But he has a chance to impact, for 
years, crime in this country, by appointing tough Federal judges. And 
he is not doing it.
  Do not believe me. Read the cases. Read the facts. Listen to the 
debate. Early in his administration President Clinton nominated another 
liberal law professor, Lani Guinier, to be the Assistant Attorney 
General in charge of the Civil Rights Division of the Justice 
Department. As some of her more radical writings on legal issues came 
to light, President Clinton's nomination of Ms. Guinier came under 
increasing fire. Finally, President Clinton reported, he sat down and 
read some of the most controversial of Ms. Guinier's legal articles. 
After doing so, President Clinton said, he decided to withdraw the 
Guinier nomination.

  Mr. President, I would respectfully suggest that President Clinton 
ought to sit down and read Judge Sarokin's 1988 West Virginia Law 
Review article. While he is at it, he ought to study Judge Sarokin's 
actions in the Rodriquez and Landona cases. As the Wall Street Journal 
noted in its fine editorial opposing the Sarokin nomination, ``* * * 
perhaps Mr. Clinton doesn't even know his real record.''
  Mr. President, if President Clinton really means it when he talks 
tough on crime, then I trust that he will conclude that he has no 
choice but to withdraw the Sarokin nomination. Failing that, Mr. 
President, I urge my colleagues in the Senate to vote against 
confirming Judge Sarokin for a seat on the Court of Appeals for the 
Third Circuit.
  Thank you, Mr. President. I yield the floor.

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