[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]

 
                           EXECUTIVE SESSION

                                 ______


 NOMINATION OF H. LEE SAROKIN, OF NEW JERSEY, TO BE U.S. CIRCUIT JUDGE 
             FOR THE COURT OF APPEALS FOR THE THIRD CIRCUIT

  The Senate continued with the consideration of the nomination.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. MITCHELL. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Lieberman). Without objection, it is so 
ordered.
  Mr. GRASSLEY. Mr. President, a parliamentary inquiry.
  The PRESIDING OFFICER. The Senator will state it.
  Mr. GRASSLEY. We are on the nomination of Judge Sarokin; is that 
right?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. GRASSLEY. Mr. President, I believe that a President is entitled 
to great deference in confirming executive nominees. And even in the 
case of judicial nominees, a President is entitled to some level of 
deference as well. I recognize that President Clinton won the election, 
and as President, he has the sole power to nominate Federal judges. I 
also accept that few of the individuals President Clinton has nominated 
to the Judiciary would have been nominated by Presidents Reagan or 
Bush. Whether the nominee comes from a Democratic or Republican 
President, I have applied the same criteria in determining whether to 
vote to confirm them: Does the individual have the requisite intellect, 
knowledge, integrity, judicial temperament, and philosophy to serve. Of 
the approximately 140 judicial nominees that President Clinton has 
transmitted, I have been able so far to vote to confirm 98 percent. I 
have voted to confirm both of his Supreme Court nominees. And I have 
voted for every lower court nominee but one, Rosemary Barkett, until 
now. Some of the Clinton lower court nominees have been of very high 
quality, such as Jose Cabranes of the second circuit and William Bryson 
on the Federal circuit. And the President's sole nominee for a Federal 
judgeship in Iowa, Mark Bennett, was a very fine selection. Therefore, 
I am sorry to say that I must now oppose a second nominee, Judge H. Lee 
Sarokin.
  Judge Sarokin is a known quantity. He is 65 years old and has been a 
Federal judge in New Jersey for 15 years. Thus, his record is well 
established. And it forms my basis for opposing him. In my view, the 
district judges that should be elevated to the courts of appeals are 
those who have been the best and deserve a promotion. My reading of his 
record is that he is one of the worst Federal judges anywhere. I regret 
that he was appointed to the district court, and I see no reason why he 
should be elevated. I place no weight on the American Bar Association's 
``well qualified'' rating of Judge Sarokin, any more than I have relied 
on the ABA's ``not qualified'' ratings of a number of Clinton judicial 
nominees that I have voted for. Any singularly activist judge who 
repeatedly follows his own views instead of the law, and who repeatedly 
disregards controlling precedent is not qualified, let alone ``well 
qualified,'' to be a Federal appellate judge.
  One of the reasons Senators should rarely oppose lower court nominees 
is that such judges are bound by precedent, unlike Supreme Court 
Justices. Some people thus might wonder why so many Senators would be 
concerned about a lower court nominee. Indeed, unlike district judges, 
court of appeals judges can do nearly nothing on their own. Those 
courts hear cases in panels of threes, and these judges need to be able 
to convince another judge to prevail in any case. Additionally, the 
third circuit is 1,000 miles from my home State of Iowa. So why should 
we spend time debating this nomination?

  The answer is that Federal judges have power that extends beyond 
their circuits. Federal judges across the country look to courts of 
appeals decisions from other circuits when their own courts have yet to 
decide particular legal issues. Additionally, as the number of court of 
appeals decisions have increased, while the number of Supreme Court 
decisions have declined, the court of appeals is effectively the court 
of last resort for the vast majority of cases. Yesterday was the first 
Monday in October. And for the first time in modern history, the 
Supreme Court convened a new term without granting a single petition 
for a writ of certiorari, although it granted some in September. The 
Court is hearing only about half as many cases as it did in the early 
1980's. That makes the courts of appeals more important than ever.
  I questioned Judge Sarokin about a number of his troubling opinions 
at his confirmation hearing before the Judiciary Committee. For 
example, in 1991, in Lebrun versus Thornburgh, Judge Sarokin struck 
down two former provisions of the Immigration laws. One provision 
required that for children born out of wedlock to American fathers and 
foreign mothers to become citizens, the father must acknowledge the 
child before age 21. And the second required that the child live in the 
United States for a particular period before reaching age 28. Despite 
the clear Supreme Court precedent that congressional enactments on the 
subject of Immigration are entitled to great deference, Judge Sarokin 
struck down both provisions.
  In disregarding the law requiring deference, Judge Sarokin instead 
set forth his moral objection to the statute. He wrote, ``It is wrong 
for a father to have the unilateral ability to confer or to deny 
citizenship to his daughter.'' Judge Sarokin failed to defer to 
Congress, which determined that citizenship should not be afforded to 
someone who had never lived in the United States, or who had no 
connection or familiarity with our country. And Congress wanted to 
foster parental responsibility by making parents acknowledge paternity.
  Judge Sarokin cited a 1972 Supreme Court decision that struck down 
certain classifications based on illegitimacy. It is telling to compare 
Judge Sarokin's treatment of this decision with Justice Breyer's view 
of the same case. Justice Breyer said that in light of the changes in 
society since 1972 in the number of children born out of wedlock and 
the social ills associated with such births, the 1972 decision might be 
worth revisiting.

  While Members of Congress from both parties seek to take steps to 
discourage illegitimacy, and President Clinton has given speeches 
encouraging the postponement of pregnancy until after marriage, Judge 
Sarokin found distinctions on the basis of legitimacy to be ``an 
archaic reminder of the past discriminatory treatment, in addition to 
being inhuman and unfair. In this way, a distinction on the basis of 
legitimacy is also an impractical distinction in today's society where 
unwed mothers abound and single parenthood has become a norm.'' Of 
course, over the last 25 years, illegitimacy has skyrocketed as judges 
like Judge Sarokin have destroyed legal distinctions between births to 
married and unmarried parents.
  Even worse, Judge Sarokin extended the 1972 Supreme Court decision 
more broadly than any other judge. And in doing so, he disregarded 
other controlling Supreme Court precedents. The Supreme Court cases 
involved intentional classifications against illegitimacy. But Judge 
Sarokin struck down the residency requirements in the Lebrun case due 
to their ``impact of discriminating against a protected group, in 
violation of the equal protection clause.'' But the Supreme Court has 
expressly held, in Washington versus Davis, that disparate impact is 
not an available theory under the 14th amendment. There must be both 
discriminatory intent and effect for a classification to violate equal 
protection. Yet, when I cited Washington versus Davis, to Judge 
Sarokin, he did not even ``pretend to remember the specific holding.'' 
This was a landmark equal protection case, and yet, Judge Sarokin was 
unfamiliar with it. This may explain why he applied his own views that 
run very much counter to those of the American people, rather than the 
law.
  Does President Clinton really want to reduce illegitimacy, as he said 
recently? Or is there a gap between rhetoric and his real position when 
he nominates someone who would strike down statutes designed to reduce 
illegitimacy?
  Let me expose another gulf between President Clinton's rhetoric and 
the actuality of this nominee's views. President Clinton opposes drug 
use. But Judge Sarokin thinks excessively broad notions of privacy are 
much more important than reasonable measures aimed at stopping drug 
use. In 1986, Judge Sarokin wrote in the Capua case that drug testing 
``Is George Orwell's Big Brother society come to life.'' He struck down 
random drug testing for firefighters. To avoid a case from a higher 
court that had approved drug testing for jockeys, Judge Sarokin 
actually ruled that the State's interest in making sure that jockeys' 
drug use did not interfere with racing is greater than its interest in 
making sure that firefighters' drug use did not interfere with fighting 
fires or rescuing victims. Where does President Clinton truly stand on 
the issue of reducing drug use? Does he believe what he says or what 
his nominee says?

  There is also a large gap between President Clinton's professed views 
on crime and Judge Sarokin's views. Judge Sarokin opposes mandatory 
minimum sentences and sentencing guidelines that ``deprive judges of 
the right to grant mercy in those circumstances in which the facts may 
cry out for it.'' In fact, Judge Sarokin has stated that it should be 
relevant in imposing a sentence that the defendant had a tough life.
  These guidelines and mandatory minimums were enacted precisely to 
deprive judges like Judge Sarokin from quickly letting dangerous 
criminals back on the streets to commit new crimes upon new victims. 
President Clinton says he supports at least one kind of mandatory 
minimum, three-strikes-and-you're-out. Yet he chose this nominee.
  Judge Sarokin told me that he has never departed from the sentencing 
guidelines, except when the Government wanted a stiffer sentence 
imposed. This is not so. And given Judge Sarokin's overall 
philosophical opposition to sentencing guidelines, I am concerned that 
he has not always followed the guidelines. For instance, last year, in 
United States versus M.B., a woman who had been the subject of incest 
and physical abuse had been charged with embezzlement. I am sympathetic 
to the victims of these crimes, and I understand when no reasonable 
person can resist any longer the abuse that they suffer. But in this 
case, the abuser was not present when the embezzlement occurred. Under 
the guidelines, the sentence was to be 10 to 16 months. The defendant 
asked for probation based on her mental and emotional background. The 
guidelines say that mental and emotional conditions are not relevant, 
unless they are extraordinary. Judge Sarokin found the defendant's 
mental condition was extraordinary. He sentenced the defendant to 
probation, mental health counseling, drug counseling or treatment, and 
restitution.
  At his nomination hearing, Judge Sarokin stated that both the 
probation officer and the Government recommended the downward departure 
from the guidelines. Had the Government recommended probation, I would 
of course have cause to think that a departure from the guidelines was 
warranted. Since Judge Sarokin did not mention the Government's 
position in his opinion, I asked him to check the file and tell me 
whether indeed the Government recommended probation. In fact, the 
Government opposed probation and recommended that imprisonment be 
imposed, as the guidelines required. Judge Sarokin disagreed.

  Judge Sarokin also opposes the use of illegally obtained evidence 
even if the police acted in good faith. The Supreme Court has ruled 
that evidence so obtained satisfies the requirements of the fourth 
amendment. Judge Sarokin also opposes requiring lawyers to disgorge 
payments they have received from the illegal proceeds of their clients' 
criminal acts. He believed that such a process hurts the lawyer-client 
privilege and harms the effective assistance of counsel. The Supreme 
Court disagreed with him on this issue as well. Does President Clinton 
agree with Judge Sarokin on these criminal law positions of Judge 
Sarokin?
  Judge Sarokin also opposes pretrial detention of the accused, which 
he has called a ``direct contradiction of the presumption of 
innocence.'' I think most people recognize that pretrial detention 
saves lives. A very large number of crimes today are committed by 
people who have already been arrested for another crime, but are set 
free before they have to face trial. Thousands of people are needlessly 
victimized by the policy that Judge Sarokin advocates. Let me mention 
one example that hit home for me recently. A former intern of mine, 
Daniel Huston, last month was fatally shot in the back in an attempted 
carjacking in suburban Maryland. Three persons were arrested in 
connection with the crime. One of them, according to the Washington 
Post, ``was arrested last month and charged with possession of a 
handgun and drugs, according to Maryland court records. After posting 
bond, [the suspect] was released but failed to appear for a court date 
a week later. A judge issued an arrest warrant on Sept. 2, records 
show.'' Pretrial detention might well have saved Daniel Huston's life. 
Without pretrial detention, the State of Maryland expended resources to 
take this suspect into custody for the earlier crime. Then, they let 
him go. Then, when he failed to show, the State spent additional 
resources swearing out a warrant in order to spend resources to capture 
the suspect a second time. That is the wrong way to do it. I support 
pretrial detention, I am pleased that we have it in the Federal system, 
and I applaud the Senators of whatever party who have enacted it. But 
Judge Sarokin does not support it.
  Although Judge Sarokin is not to blame for this murder, the American 
people are understandably fed up with policy views like his, which 
favor criminals and lead to unnecessary deaths and injuries. No wonder 
his nomination is opposed by the National Fraternal Order of Police and 
its New Jersey chapter, the Law Enforcement Alliance of America, the 
Federal Investigators Association, Organized Victims of Violent Crime, 
Citizens for Law and Order, and Citizens Against Violent Crime. Does 
President Clinton share his nominee's views on this issue as well?

  Judge Sarokin's views on obscenity are also of great concern. In 
1983. Judge Sarokin considered a challenge to the application of a 
zoning requirement that kept an adult bookstore from opening. The only 
issue before Judge Sarokin was whether the zoning ordinance had been 
applied in a discriminatory fashion. But Judge Sarokin used his 
courtroom as a soapbox, issuing personal opinions on the subject of 
pornography. These opinions were not necessary to decide the case, and 
their content is very troubling. He wrote:

       If a merchant announced his intention to open a store 
     dedicated to murder mysteries, no matter how violent or 
     bloody, nary a picket or protester would appear. But should 
     one announce that sex is to be the main theme, then organized 
     opposition is inevitable. The public permits books, movies 
     and television to inundate us with murder by gun or knife, 
     strangling, rape, beatings and mayhem, all of which are 
     illegal. But the depiction of sexual acts, most of which are 
     legal, are condemned with a furor. We will tolerate without a 
     murmur a movie showing the most brutal murder, but display a 
     couple in the act of love and the outcry is deafening. . . . 
     We must remember that we are dealing only with words and 
     pictures, the harmful effect of which, if any has never been 
     established.

  I am appalled that Judge Sarokin reached out to write those words. 
The Supreme Court has ruled that legislative bodies can ban words and 
pictures that are obscene without demonstrating harmful effects from 
any of them. We can legislate based on the common sense view that these 
materials harm the people who pose for them, the people who use them, 
and the public generally. There is even evidence that some crimes are 
committed by people as a result of their exposure to obscenity. Judge 
Sarokin's extreme libertarianism on the subject of obscenity is very 
troubling.
  Last November, all 100 Senators voted to disapprove of the Justice 
Department's position in the Knox child pornography litigation. That 
case had been decided by the third circuit, the court to which Judge 
Sarokin has been nominated. The third circuit ruled that child 
pornography need not portray the children in total nudity. In that 
case, the videos focused unnaturally on the scantily clothed genitals 
of young girls. The Justice Department argued that the child must be 
nude, and that the child must herself intend to act lasciviously. Thus, 
posed or sleeping young girls could not be protected in the Justice 
Department's view of the statute.
  Because of the Justice Department's switched position, the Supreme 
Court reversed its decision to hear the case and sent the case back to 
the third circuit. And the third circuit again affirmed its position--a 
position that reflected congressional intent in enacting the statute--
and rejected the Justice Department's liberation view. I shudder to 
think how a Judge Sarokin sitting on the third circuit would have 
decided this case.

  Judge Sarokin to my knowledge has not decided any child pornography 
cases. And he might say that he strongly opposes child pornography. But 
even if that is true, that does not satisfy my concerns about his 
obscenity cases. Child pornography is not any more illegal than 
obscenity. One is not better than the other. Both are illegal. Both 
kinds of laws can be enacted without an explicit showing of harm. Both 
kinds of laws are to be equally enforced. But in a case where obscenity 
laws were not themselves at issue, Judge Sarokin reached out to decide 
that the harmful effects of these materials have not been established. 
And he also criticized citizens who sought to keep adult bookstores out 
of their neighborhood, notwithstanding what often occurs near locations 
where adult bookstores are established. I believe that citizens should 
be able, if they choose, to take legal measures to try to keep their 
families safe from obscene materials. They do not need a lecture from 
Judge Sarokin that first amendment principles, which do not apply to 
obscenity in any way, should make people welcome these bookstores.
  Judge Sarokin, if confirmed, may be assigned to another appeal in the 
third circuit that is the subject of a Justice Department shift. Sharon 
Taxman, a high school teacher in New Jersey, was laid off her job 
solely because of her race, which is white. Taxman and another teacher 
were equally qualified and had equal seniority. The school district 
decided to lay off a business education teacher and the choice was 
between Ms. Taxman and a Ms. Williams, a black teacher. In the past, 
the decision of who to lay off in these circumstances would have been 
decided by lot. And I think that would have been fair.
  Instead, the school district decided that in an effort to ensure 
diversity and to create role models for minority students, the teacher 
laid off would be Ms. Taxman because she was white. They made this 
decision despite the fact that the school district had never 
discriminated and that the proportion of teachers in the district that 
were members of minority groups was higher than the minority percentage 
of the population of the district as a whole. The district decided that 
this one department should always have an African-American teacher. 
Under the school District's view, for the first time, race conscious 
plans would be used to maintain a racial balance, not to achieve one. 
Moreover, the district's plan would go on without end.
  The school district's position is not supported by Supreme Court 
decisions. And the Justice Department under President Bush and also 
under President Clinton took the side of Ms. Taxman against the School 
District. But recently, even though the Justice Department won the case 
in the district court, it filed a brief in support of the school 
district, even though the Department had obtained all kinds of client 
confidences and attorney work product from Ms. Taxman.
  Given the importance of this case and Judge Sarokin's record on 
affirmative action, I fear that if this case comes before a circuit 
Judge Sarokin, Ms. Taxman's lawyer should just forget it. I think that 
despite the law on Ms. Taxman's side, there is virtually no chance that 
a circuit Judge Sarokin would support Ms. Taxman. Does President 
Clinton think that people should be laid off solely because of their 
skin color, even when the employer has never discriminated, and already 
employs a work force that has a greater proportion of minority members 
than the workforce as a whole?
  Let us consider another of Judge Sarokin's cases, the notorious 
Kreimer versus Bureau of Police. In that 1991 decision, Judge Sarokin 
considered a case of a homeless person who had been barred from a 
public library. Mr. Kreimer, who had recently inherited a large sum of 
money, and who had refused job offers, failed to bathe. His odor made 
it impossible for other library patrons to use the library for its 
ordinary purpose. In addition, Mr. Kreimer harassed and followed 
individuals around the library, which also prevented people from using 
the library for its intended purpose.
  Judge Sarokin ruled against the library's policy of removing people 
from the library who were not able to conform their conduct to that 
necessary for the functioning of a library and who were not using the 
library as a library. Judge Sarokin wrote that,

       Society has survived not banning books which it finds 
     offensive from its libraries; it will not survive banning 
     persons whom it likewise finds offensive from its libraries. 
     The greatness of our country lies in tolerating speech with 
     which we disagree; the same toleration must extend to people, 
     particularly where the same toleration must extend to people, 
     particularly where the cause of revulsion may be of our own 
     making. If we wish to shield our eyes and noses from the 
     homeless, we should revoke their condition, not their library 
     cards.

  The library insisted that people act a certain way to use the library 
so that others may also use it. But Judge Sarokin said that it was the 
fault of the people who followed the rules that the homeless Mr. 
Kreimer could not behave. He said that the public could not insist that 
Mr. Kreimer follow the rules; rather, the community effectively had to 
turn the library into a homeless shelter. Of course, the town spent 
many millions of dollars on social services, but because of Judge 
Sarokin's ruling, which was eventually overturned, the town had to 
spend hundreds of thousands of dollars on legal fees, money that could 
have gone to better the town and its people.

  President Clinton has delivered speeches stressing the importance of 
personal responsibility. But Judge Sarokin believes it is the 
responsibility of the community to make sure that homeless people are 
clean or otherwise tolerate the smell and behavior of homeless people 
in libraries. Is it President Clinton's speech or his nomination of 
Judge Sarokin that reflects his true view of personal responsibility?
  Judge Sarokin's decision applied his personal views, not the law. 
Describing himself as a ``flaming liberal,'' Judge Sarokin recently 
stated his personal view that,

       If we truly want to deal with crime and make our streets 
     pleasant and safe, we must identify the mentally and 
     physically ill, the drug addicts and the alcoholics, and 
     either treat them or hospitalize them. And 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.

  What a remarkable coincidence it is that Judge Sarokin's personal 
view and the decision he reached in Kreimer coincided exactly.
  Not only does Judge Sarokin's ruling defy common sense, it also 
disregarded controlling Supreme Court decisions. The cases relied on 
were twisted beyond recognition in order to support the result that 
Judge Sarokin had already determined that he wanted to reach. Although 
he testified that the third circuit agreed with him on the issue of 
access, this is plainly false. Judge Sarokin considered the library to 
be a designated public forum, a key issue on the subject of access. The 
court of appeals disagreed. Moreover, Judge Sarokin once again failed 
to follow Supreme Court precedent by ruling that the library policy was 
``an irrational and unreasonable wealth classification with a disparate 
impact on the poor.'' As I mentioned in connection with the Lebrun 
case, disparate impact has been foreclosed as a basis for equal 
protection decisions by the Supreme Court. In fact, Judge Sarokin's 
decision in Kreimer shows even more disregard for precedent than did 
Lebrun. In Lebrun, at least the classification related to a group, 
children born out of wedlock, who receive heightened scrutiny under the 
equal protection clause. But the Supreme Court 20 years before the 
Kreimer decision ruled that the poor are not a suspect class that is 
entitled to heightened constitutional protection. Once again, Judge 
Sarokin followed his own social views rather than the law. Nor should 
we forget his cases in which he has explicitly failed to follow binding 
precedent.
  Judge Sarokin also has the unfortunate distinction of being removed 
from a case by a higher court for an appearance of bias. This occurred 
only 2 years ago in a case involving cigarettes. In deciding a mere 
discovery motion, not in making a final decision in the case, Judge 
Sarokin wrote,

       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, and money 
     over morality. Who are these persons who knowingly and 
     secretly decide to put the buying public at risk solely for 
     the purpose of making profits and who believe that illness 
     and death of consumers is an appropriate cost of their own 
     prosperity!

  The third circuit found that these comments reflected an appearance 
of bias on Judge Sarokin's part. And the appellate court found that 
Judge Sarokin had committed ``a judicial usurpation of power.'' The New 
York Times, which editorialized in the third circuit's opinion, agreed, 
finding that Judge Sarokin had ``flunked an important test of 
credibility.''
  Moreover, Judge Sarokin made his comments about the breast implant 
industry even though no breast implant company was a defendant in the 
case. So Judge Sarokin made the comments about breast implants based 
solely on personal opinion and not on any evidence. Additionally, the 
cigarette materials were under a protective order. Judge Sarokin's 
decision destroyed any effect of that protective order, by quoting from 
the documents. When the third circuit took Judge Sarokin off the case 
and revoked his ruling, there was no way for the defendant to be made 
whole for the damage that Judge Sarokin caused it.
  It has been argued that Judge Sarokin cannot really be biased against 
tobacco companies because he ruled in their favor in pretrial motions 
more often than not. I submit that this is a weak argument. Judges who 
want to rule against particular litigants frequently rule in that 
litigant's favor in pre-trail motions, then rule against them when it 
matters. When the losing litigant appeals, what arguments for reversal 
can he raise? Since all of the pretrial rulings went in favor of that 
litigant, the litigant will have no basis for appeal. That is one of 
the reasons why it is so hard to show bias and why it is so infrequent 
that judges are removed for an appearance of bias.
  Some will say that Judge Sarokin would not have been removed from the 
case under a very recent Supreme Court decision. That may be true. 
However, the law that the third circuit applied was certainly the 
governing law at the time that Judge Sarokin made his decision. And the 
bias issue is quite real, given that Judge Sarokin accepted an award 
from an antismoking group for this decision. Even worse, after he was 
taken off the case, Judge Sarokin wrote, ``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.'' To be sure, Judge Sarokin, in a confirmation 
conversion, now says that he regrets the language that he used. Of 
course, these words cast unjustified aspersions on the character of the 
judges who reversed him. And because they were written down after 
reflection, not oral comments, I think one can conclude that Judge 
Sarokin had such animosity toward the tobacco companies that he had 
lost all ability to be objective.

  Under our constitutional system, Congress makes the laws. Judges rule 
on their meaning and their constitutionality. In deciding 
constitutionality, judges are to disregard any personal opinions. Judge 
Sarokin, however, never misses an opportunity to state his view of the 
wisdom of laws, a subject that should not concern him. For example, in 
1980, Judge Sarokin wrote that:

       Section 94 of the National Bank Act should be repealed or 
     the appellate courts should reconsider the constitutionality 
     thereof. . . . Whatever justification existed for the 
     original enactment no longer exists today . . . having thus 
     vented its views on the statute in question, the court 
     considers the subject case.

  Federal judges are not to vent their views. That is not their role. 
That is not consistent with the judicial temperament that the Framers 
intended and that the American people are entitled to.
  Whether the issue is crime, illegitimacy, drugs, obscenity, personal 
responsibility, or sentencing, Judge Sarokin has revealed himself to be 
the Joycelyn Elders of the judiciary.
  Judge Sarokin's nomination is like something out of Casablanca. In 
that movie, Bogart is asked why he came to Casablanca. He replies that 
he came to Casablanca for his health, for the waters. But he is told 
that Casablanca has no waters; it is in the middle of the desert. 
Bogart replies, ``I was misinformed.'' I thought that President Clinton 
was a new Democrat. I thought he was tough on crime, illegitimacy, 
personal irresponsibility, and drugs. I think the American people want 
to believe that. But when President Clinton nominates judges like Judge 
Sarokin to important posts, then, like Bogart in Casablanca, the 
American people have been misinformed.
  It is bad enough to give a lifetime appellate judicial appointment to 
someone who holds such disturbing views. What is worse, Judge Sarokin 
ignores the law and imposes those views in his decisions through 
judicial activism. If there is a more activist sitting Federal judge in 
this country, I am unaware who it is. I fear that Judge Sarokin was 
nominated precisely because of his radical views and style of judging.
  Mr. President, when nominees are considered, we in the Senate often 
recognize the checks and balances function of the advise and consent 
clause of article II. But we often overlook a critical reason why the 
Framers of the Constitution gave the power to nominate to the President 
and the power to confirm to the Senate. That system was adopted in 
order to hold the President and Senators accountable for appointments. 
As Hamilton wrote in Federalist No. 77, ``The circumstances attending 
an appointment, from the mode of conducting it, would naturally become 
matters of notoriety, and the public would be at no loss to determine 
what part has been performed by the different actors.'' As a result, 
``The blame of a bad nomination would fall upon the President singly 
and absolutely. The censure of rejecting a good one would lie entirely 
at the door of the Senate. * * * If an ill appointment should be made 
the Executive for nominating and the Senate for approving would 
participate though in different degrees in the opprobrium and 
disgrace.''
  In my view, the appointment of H. Lee Sarokin to the third circuit 
would be a disgrace for the reasons I have stated. The President is 
solely responsible for making such an ill-considered nomination. And 
any Senator who supports it will share in the responsibility if he is 
confirmed. The American people will hold both the President and any 
Senators who support the nomination accountable for it, as the Framers 
intended. I know that Senator Bradley, for whom I hold great respect, 
strongly favors Judge Sarokin's confirmation. Regrettably, I do not 
share his opinion. For myself, I am quite sure that I fulfill my 
constitutional responsibility as to this nominee by opposing this poor 
appointment.
  Mr. LOTT addressed the Chair.
  The PRESIDING OFFICER. The Senator from Mississippi [Mr. Lott] is 
recognized.
  Mr. LOTT. Mr. President, I rise to oppose the nomination of H. Lee 
Sarokin, U.S. district judge for New Jersey, to be a judge to the U.S. 
Court of Appeals for the Third Circuit.
  I commend the distinguished Senator from Iowa for the remarks he just 
delivered. I thought they were very thoughtful, and obviously as a 
member of the Judiciary Committee, he has done a lot of work on this 
nomination. I certainly agree with his findings with regard to this 
confirmation.
  I, too, have the highest respect for the Senator from New Jersey [Mr. 
Bradley], and I understand his support for this nominee. But after 
reviewing Judge Sarokin's conduct in the lower court and a number of 
law review articles he has written, and cases that he has participated 
in, I just do not feel that it is proper to promote this judge to the 
U.S. Court of Appeals for the Third Circuit.
  Mr. President, I remember in 1968, when I was a relatively young man, 
I was privy to a conversation between the then chairman of the House 
Rules Committee, Chairman Bill Colmer, and the newly elected President 
of the United States. That President, a Republican, called this House 
committee chairman to establish contact with him and tell him he wanted 
to work with him on behalf of our country. And I remember Chairman 
Colmer, who was a man of relatively few words, giving one piece of 
advice to this newly elected President. He said: ``Nothing that you do 
will be more important for the long-term future of the country than the 
appointments you make to the Federal judiciary.'' He said: ``We have 
major problems now with activist Federal judges that are trying to 
write the laws instead of interpreting the laws and the Constitution, 
who seem to be more concerned with the rights of the criminals than the 
rights of victims and the rights of society. Judicial appointments will 
be the most important thing you do. I hope you will appoint strong law 
and order men and women to the Supreme Court and throughout the 
judiciary.''
  That conversation made an indelible impression on me, because I was 
hearing one end of a conversation between a Congressman and the 
President of the United States, and I certainly agreed with what 
Chairman Colmer has said.
  I oppose this nomination because Judge Sarokin has a soft-on-crime 
judicial philosophy and does not have, in my opinion, the proper 
judicial temperament for this appointment. I oppose him on the basis of 
philosophy, on the basis of temperament but, most importantly, I oppose 
him on the basis of judgment. I think that is totally legitimate 
territory for Members of the U.S. Senate, in our role of advise and 
consent, to consider a judge's, or prospective judge's, judgment.
  Philosophy should not be the determining factor. There are many times 
when Democrats and Republicans, conservatives and liberals, vote across 
party lines and philosophical lines. I have done that this year. I 
voted to support one of the President's nominees to the Supreme Court 
this year.
  Temperament certainly is something we should consider but, again, it 
is not totally definitive. But judgment is the point that I have used 
on the floor of this Senate with regard to other nominees in the past, 
where if there is a problem there, if there is a question there, if a 
man or woman lacks good judgment, then surely they should not sit in 
the appellate court system.
  I have said before here in the Senate, Mr. President, that I have 
always felt the President of the United States is entitled to his own 
nominations, and only in extreme circumstances should the Senate vote 
down a Presidential nominee. I still feel that way. But that brings me 
back to the point that I was making about the conversation earlier. 
These are very important appointments, and Presidents need to be very 
careful about the men and women they appoint to these positions. In 
this case, I have great difficulty reconciling the President's rhetoric 
about fighting crime in America and this appointment and some of the 
other appointments.
  When I have been home recently, I have had constituents come up to me 
and say: We heard about the crime bill, but whether or not that was a 
good bill or did all it was supposed to do, what is the Federal role? 
What can you do at the Federal level to fight crime in America?
  Our constituents quite often are smarter than we are. They know that 
in the final analysis, crime is going to have to be fought at the local 
level and in the hearts of men and women and in the families and in the 
communities, with policemen and State law enforcement agencies. The 
role of the Federal Government really is quite limited. But we have a 
clear role. There is no question that our law enforcement 
organizations--FBI, DEA, and others--are very important in fighting 
crime in America.
  But one place where we clearly can help fight crime is the 
confirmation process of judges who go on the bench and start coming up 
with the problems we have in America now, where we have endless 
appeals. We have not been able to reform habeas corpus. There was 
nothing in the crime reform package to deal with that. Yet, if you ask 
average Americans what do you think we ought to do in the criminal 
justice system, that is one they will certainly mention. Stop these 
endless, expensive appeals.
  Another one is the exclusionary rule. We did nothing to support the 
good-faith efforts of our policemen in seizing evidence and arresting 
victims. That was not in the crime bill either. The people we put on 
the Federal bench have a lot to do with the criminal laws in America, 
how they are interpreted, how our district attorneys and attorneys 
general can do their jobs, and certainly our law enforcement people. So 
when I see a nominee like this by the President of the United States, I 
first have to question what would this activist judge do on the 
appellate court, and why did the President nominate such a person with 
the record that he has?
  Judge Sarokin is an extreme case. This judge is another extremist 
judge who has been sent to the Senate by the Clinton administration 
who, in my opinion, is out of the mainstream. I remember a few years 
ago a nominee was defeated because he was not in the mainstream. This 
judge is clearly not in the mainstream.
  I remember in the midst of the recent crime bill debate the 
administration sent the nomination of Rosemary Barkett, an obviously 
soft-on-crime judge, to the Senate for confirmation.
  Judge Barkett, nominated to the Eleventh Circuit Court of Appeals, 
blamed society for criminals' behavior. She was known as the most 
procriminal judge in the State of Florida.
  While the President has been talking about being tough on criminals, 
he sent that judge to the Senate, and now he has sent this judge to the 
Senate for promotion to a higher court. These are judges who, based on 
their record, it seems to me, would undermine our efforts to keep our 
streets safe and keep criminals behind bars.
  The crime bill has been signed. Maybe it will help. Obviously, we 
still need to do more to fight crime in America. The American people 
want more action on our part.
  The nomination of Judge Sarokin is not the type of action, I believe, 
that Americans want. Over 80 percent of Americans feel that the 
judicial system is ``too soft'' on crime and criminals. Judge Sarokin 
is the poster boy for soft-on-crime judges. These are some of the 
things he believes.
  He believes that criminals should not be jailed before conviction. In 
many instances, think what you are talking about here. These are 
potential murderers, rapists, and violent felons. But they should not 
be jailed before conviction? What do you think they are going to be 
doing? They are going to be running loose on the streets, in many 
instances doing the same thing again. This is not a position that is in 
the mainstream of thinking for the American people.
  He believes that there should be no minimum sentencing or even no 
uniform sentencing. Judge Sarokin, then, is against ``three strikes and 
you're out,'' which was the amendment that I got added to the Senate 
crime bill last year and President Clinton stood in the front of the 
House Chamber in the joint session and endorsed. I do not see how you 
reconcile that position with the position of this judge. He is against 
minimum sentencing even if it is three times you have committed a 
violent felony.
  He believes there should be no good faith exception to the 
exclusionary rule. If policemen stop a car in good faith and find drugs 
in the car, then, in Judge Sarokin's eyes, the cops are bad and the 
drug dealer should go free.
  How ridiculous. How many of us have heard about and read about cases 
where, on technicalities, evidence is thrown out and criminals go free 
back on the streets to commit their crimes again? We all know the 
statistics. Most of the really heinous crimes in America are committed 
by repeat offenders, and many times they go through the revolving door 
right back out on the street because the policemen did not comply with 
every little technical requirement that Federal judges, judges like 
this one, have imposed on the law enforcement system in America.
  This judge believes that crime is society's fault, because society 
does not provide enough social services like job training. Oh, surely 
we can do more there. We should do it. Preventive efforts, absolutely. 
But is crime society's fault? I do not accept that.
  Judge Sarokin's views are definitely out of the mainstream. In fact, 
in May of this year, at a conference he described himself as ``a 
flaming liberal.'' That has been referred to earlier. I did not call 
him that. That is what he called himself. And somebody might say, ``So 
what?''
  Well, for a judge, a man or woman, who is supposed to be showing 
impartiality, they should not describe themselves as flaming anything, 
liberal, conservative or anything else. They should consider the facts 
of the cases and not be coming at it from a biased position like I 
think this judge does. We do not need social crusaders on the court of 
appeals. We still have too many there today. Judge Sarokin has 
overstepped his bounds as a judge for political ends. And here are some 
of the things that he has done or that has happened to him.
  He has been removed from a case by the third circuit, a lawsuit 
against several tobacco companies he had presided over for 9 years. 
Because of Judge Sarokin's bias, the third circuit court blasted him, 
in what I thought was unusually tough language, when they said 
``judicial usurpation of power'' and for ``ignoring fundamental 
concepts of due process.''
  This is a rare event. It is unusual when the appellate court removes 
a district court judge, certainly when he has been on a case for 9 
years, because he was so biased and exhibited it so clearly that he had 
ignored fundamental concepts of due process.
  This judge engaged in a personal crusade to free a convicted cop 
killer, James Landano. Judge Sarokin was reversed not once, not twice, 
not three times--four times--by the U.S. Court of Appeals, to which he 
now would be promoted, and by the Supreme Court for getting involved in 
a State criminal matter because he made up his mind about how that case 
should be decided about the innocence or guilt of this criminal.
  This judge ruled that homeless people can loiter and harass patrons 
of public libraries, expanding the rights of the homeless at the 
expense of patrons who go to libraries to read, not to be harassed.
  This judge has been called by the New Jersey Law Journal the most 
liberal and most reversed judge in New Jersey.
  This judge, Judge Sarokin, has been opposed by many organizations, 
including the 250,000-member National Fraternal Order of Police and 
Organized Victims of Violent Crime.
  Judge Sarokin has shown hesitancy in getting tough on criminals. He 
has shown, in my opinion, a lack of respect for due process, for 
community standards, for law enforcement agencies.
  Where are our colleagues now who on this floor called for more crime 
control, for tough crime control this year when we were talking about 
the crime bill? Where are they now when a judge with certainly a very 
questionable record when it comes to criminals comes before this 
Chamber for confirmation?
  Mr. President, I ask unanimous consent to print in the Record a 
report by Thomas L. Jipping, called ``Flunking the Credibility Test: 
Judicial Temperament and Judicial Philosophy,'' parts 1 and 2.
  There being no objection, the report was ordered to be printed in the 
Record, as follows:

              [From Coalitions for America, July 20, 1994]

   Flunking the Credibility Test: Judicial Temperament and Judicial 
                               Philosophy

 (An analysis of President Bill Clinton's nomination of H. Lee Sarokin 
  to be a judge on the U.S. Court of Appeals for the Third Circuit by 
                         Thomas L. Jipping\1\)
---------------------------------------------------------------------------

     \1\Footnotes at end of article.
---------------------------------------------------------------------------
       ``Judge Sarokin Flunked an Important Test of 
     Credibility''--Editorial, The New York Times, 9/10/92.
       President Clinton has nominated H. Lee Sarokin, currently a 
     U.S. District Judge in New Jersey, to the U.S. Court of 
     Appeals for the Third Circuit (PA, NJ, DE, VI). His record 
     includes a rare combination of factors arguing against 
     confirmation. First, Judge Sarokin has demonstrated that he 
     lacks judicial temperament. His personal bias has been so 
     severe that the U.S. Court of Appeals--the very court to 
     which he has now been nominated--had to remove him from a 
     case over which he had presided for nine years. The Supreme 
     Court has held that this extraordinary step is reserved only 
     for situations where a judge's behavior amounts to a 
     ``judicial `usurpation of power'.''\2\
       In addition, Judge Sarokin has an extremely activist 
     judicial philosophy that places him far outside the 
     mainstream. He has made unusually plain his intention to use 
     his judicial role to pursue social or personal causes. 
     Pursuing that goal, he repeatedly ignored or misinterpreted 
     precedent, applied incorrect standards, or invented new 
     rights. As a result, Judge Sarokin has repeatedly been 
     reversed and chastised by higher courts, sometimes several 
     times in the same case.
       The court of appeals has criticized him for basing 
     decisions on his ``own views''\3\ or his ``own intuition'' 
     and that he tries ``to superimpose [his] own view of what the 
     law should be in the face of the Supreme Court's contrary 
     precedent.''\4\
       This nominee, then, has the distinction of both an 
     injudicious temperament and an extremely activist philosophy 
     of judging. While reasonable people may differ about the 
     second, they should not tolerate the first. Most Americans 
     would, no doubt, be utterly mystified at the criteria that 
     would justify putting someone like this on the second most 
     powerful court in the land.


                        i. personal information

       Born in New Jersey in 1928, H. Lee Sarokin received his 
     B.A. from Dartmouth College and his law degree from Harvard. 
     He was in private practice in Newark from 1955 to 1979, 
     during which time he served as assistant county counsel for 
     Union County, New Jersey from 1959 to 1965. President Jimmy 
     Carter appointed him to the U.S. District Court in New Jersey 
     in 1979.


                        ii. judicial temperament

       Debates over judicial nominees usually focus on judicial 
     philosophy. The cases reviewed below, along with many others, 
     demonstrate that Judge Sarokin has an extremely activist 
     record. He is unusually plain in announcing and implementing 
     his intention to use his judicial role for personal and 
     social causes.
       Even those Senators, however, who adopt a fairly 
     deferential posture on judicial nominations, should at least 
     demand that nominees exhibit appropriate judicial 
     temperament, the ability to be fair and impartial. As the 
     Supreme Court has said, ``any tribunal permitted by law to 
     try cases and controversies not only must be unbiased but 
     also must avoid even the appearance of bias.''\5\ Every 
     Senator--Democrat and Republican, liberal and conservative--
     should demand appropriate judicial temperament.
       Judge Sarokin has demonstrated that he lacks these 
     essential qualities. He presided over a very high-profile and 
     lengthy lawsuit against the tobacco industry. His decisions 
     and behavior in the case evidenced such personal bias that 
     the U.S. Court of Appeals took the extraordinary step of 
     removing him from the case because he could no longer 
     maintain even the appearance of impartiality.

                A. A ``Judicial `Usurpation of Power'''

                                1. facts

       The daughter of a man who died after smoking for 40 years 
     sued several tobacco companies and the Tobacco Institute. 
     During the discovery process, she sought documents related to 
     the Council for Tobacco Research, a foundation formed to 
     finance research on the potential health hazards of smoking. 
     The defendants objected, arguing that the documents were 
     protected by the attorney-client privilege since the Council 
     was created to respond to possible legal action. The 
     plaintiff argued that, if the privilege did apply, the crime-
     fraud exception to the privilege should still make the 
     documents available since the tobacco companies were 
     allegedly using the legal advice to further an ongoing 
     conspiracy of fraud. The plaintiffs sought to publicly 
     disclose as much of this information as possible.
       Judge Sarokin appointed a special master who concluded that 
     the attorney-client privilege did apply to some of the 
     documents at issue. He also appointed a magistrate who 
     decided that the crime-fraud exception to the attorney-client 
     privilege did not require the defendants to produce those 
     documents. The plaintiffs appealed to Judge Sarokin.

                      2. Judge Sarokin's decision

       Judge Sarokin reversed the magistrate's decision and, in 
     his published opinion, actually included portions of the 
     documents the magistrate had concluded were protected by the 
     attorney-client privilege. He then launched a scathing attack 
     on the tobacco industry, beginning with these words:
       ``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, sale over 
     safety, and money over morality. Who are these persons who 
     knowingly and secretly decide to put the buying public at 
     risk solely for the purpose of making profits and who believe 
     that illness and death of consumers is an appropriate cost of 
     their own prosperity! As the following facts disclose, 
     despite some rising pretenders, the tobacco industry may be 
     the king of concealment and disinformation.''\6\

                   3. The Court of Appeals' decision

       Because this decision concerned a discovery request and was 
     not a final judgment, the defendants could not appeal it in 
     the ordinary manner. Instead, they went to the U.S. Court of 
     Appeals and asked for a writ of mandamus.\7\ The defendants 
     sought a writ ordering Judge Sarokin to vacate his order that 
     they produce the documents and removing Judge Sarokin from 
     the case because of his personal bias.
       It is very important to understand what an extraordinary 
     step this is for a court of appeals to issue a writ of 
     mandamus. Citing Supreme Court precedent, the court of 
     appeals wrote: ``Because the remedy is so extreme, courts 
     should invoke it only `in extreme situations.'''\8\ The 
     Supreme Court has held that ``only exceptional circumstances 
     amounting to a judicial `usurpation of power' will justify 
     the invocation of this extraordinary remedy.''\9\
       a. reversing Judge Sarokin
       Judge Sarokin initially faced a critical choice, namely, 
     whether to be deferential to, or substitute his own judgment 
     for, the magistrate's decision. The court of appeals called 
     it ``undisputed''\10\ as well as ``clear and 
     unambiguous''\11\ that the correct standard was deference; 
     Judge Sarokin could only consider the evidence that was 
     before the magistrate and could only overturn a decision that 
     was ``clearly erroneous and contrary to law.''
       Judge Sarokin ignored the law, ordered the parties to 
     submit evidence from a different case that the magistrate had 
     not even seen, and substituted his own judgment. This was a 
     sufficiently serious judicial ``usurpation of power'' to 
     warrant the ``extraordinary'' and ``exceptional'' remedy of a 
     writ of mandamus.
       b. removing Judge Sarokin
       But Judge Sarokin's behavior in this case was even more 
     serious. The court of appeals called its decision to remove 
     Judge Sarokin's ``a most agonizing aspect of this case.''\12\ 
     Noting that the media had prominently reported Judge 
     Sarokin's accusations throughout the country,\13\ the court 
     wrote that ``it is impossible for us to vindicate the 
     requirement of `appearance of impartiality' in view of the 
     statements made in the district court's prologue to its 
     opinion.''\14\
       ``The New York Times applauded the Third Circuit's decision 
     to remove Judge Sarokin, editorializing that he had been 
     ``far out of line'' and concluding: ``Judge Sarokin flunked 
     an important test of credibility.''\15\
       The court of appeals concluded not only that Judge Sarokin 
     had committed a judicial ``usurpation of power'' in his 
     substantive decisions in this case, but also that he had 
     forsaken even the appearance of impartiality, rendering him 
     unable to be fair and no longer fit to preside in this 
     litigation. This extraordinary conclusion relates to 
     Sarokin's judicial temperament rather than his judicial 
     philosophy and ought to gravely concern those who ordinarily 
     are tolerant of a nominee's substantive views.
       Judge Sarokin not only committed a judicial usurpation of 
     power, but thereafter accepted an award from an anti-smoking 
     interest group. The Group Against Smoking Pollution (GASP) 
     give its 1993 C. Everett Koop Award to Judge Sarokin ``for 
     significant achievement toward creating a smokefree 
     environment.'' According to the New Jersey Law Journal, 
     ``Sarokin won the award for sentiments contained in an 
     opinion he wrote in February 1992 in Haines v. Liggett 
     Group.''\16\ To state is clearly, Judge Sarokin abandoned the 
     appearance of impartiality in Haines, for which he was 
     removed as the presiding judge and then rewarded by an 
     interest group. It would be difficult to imagine a more stark 
     violation of a judge's duty. If Judge Sarokin wants to be an 
     anti-smoking crusader, he should resign from the bench and 
     work toward that political and social cause.

                  B. A Pattern of Disregarding the Law

       Even if this were an isolated incident, it would be a 
     terrible stain on this nominee's record and would seriously 
     call into question his fitness to serve on the very court 
     that was forced to remove him from presiding over the Haines 
     litigation. But this was not the first time that Judge 
     Sarokin ignored the law and substituted his own judgment in 
     this manner. And is was not the first time that the U.S. 
     Court of Appeals had to take the extraordinary step of 
     issuing a writ of mandamus on the same issues to correct 
     Judge Sarokin's judicial usurpation of power.
       Discovery in the Haines litigation was supervised by a 
     magistrate and merged with another lawsuit against the same 
     defendants brought by the same attorney. In March 1985, after 
     two years of discovery, the magistrate granted the 
     defendant's request for a protective order. The plaintiffs 
     appealed to Judge Sarokin, who reversed the magistrate's 
     decision and ordered production of the documents. The 
     defendants sought a writ of mandamus to block Judge Sarokin's 
     decision, which the court of appeals granted.

                          1. standard of review

       The Federal Magistrate Act states that ``a magistrate's 
     order is not to be reconsidered unless it is `clearly 
     erroneous or contrary to law.'''\17\ The U.S. Supreme 
     Court,\18\ the Federal Rules of Civil Procedure\19\ and the 
     General Rules of Judge Sarokin's own court\20\ say the very 
     same thing. Judge Sarokin ignored the law and substituted his 
     own judgment. As the court of appeals put it: ``The `clearly 
     erroneous' standard obviously would have been less onerous 
     for the defendants than was the district court's plenary 
     review standard.''\21\ Judge Sarokin ignored the law 
     precisely so he could be as onerous as possible on the 
     parties he disfavored. Such ad hoc invention of new judicial 
     standards raises serious questions about his suitability to 
     be a judge at all.

                     2. interpretation of precedent

       Judge Sarokin also completely misinterpreted the applicable 
     Supreme Court precedent.\22\ He again had to decide between 
     an interpretation that was deferential to the magistrate's 
     decision and one that allowed him to substitute his own 
     judgment. He chose the latter, and the reason did not escape 
     the court of appeals. Judge Edward Becker cited Sarokin's 
     ``perception that [the magistrate's order] would favor the 
     economically powerful defendants.''\23\ Indeed, Judge Sarokin 
     had written that he could not ``ignore the might and power of 
     the tobacco industry and its ability to resist the individual 
     claims asserted against it and its individual members.''\24\ 
     This was also serious enough to constitute an independent 
     ground for the writ of mandamus.
       This is a rare, but very serious, matter. The Supreme Court 
     has said that ``any tribunal permitted by law to try cases 
     and controversies not only must be unbiased but also must 
     avoid even the appearance of bias.''\25\ Judge Sarokin has 
     failed this test in the most blatant and obvious way. No 
     Senator, regardless of the view of judicial philosophy, 
     should support someone who thus lacks the demonstrated 
     ability to be fair and impartial.


                        III. JUDICIAL PHILOSOPHY

       For those who evaluate judicial nominees also according to 
     judicial philosophy, seeking to ensure that those activists 
     who are plainly outside the mainstream do not occupy lifetime 
     positions on the federal bench, Judge Sarokin's record offers 
     great cause for concern. The New Jersey Law Journal observed 
     that ``Sarokin, the former civil litigator who was appointed 
     by President Carter in 1979 and who is considered the most 
     liberal member of the federal bench the New Jersey, has met 
     resistance from the higher court. Although the Third Circuit 
     does not keep statistics on reversals, Sarokin may be the 
     most reversed federal judge in New Jersey when it comes to 
     major cases.''\26\ The Almanac of the Federal Judiciary also 
     states that ``Sarokin is the most liberal judge on the 
     District of New Jersey bench, according to a majority of 
     civil attorneys.''\27\

                    A. Fighting to Free a Cop-Killer

       In 1976, a Newark, New Jersey, police officer was shot 
     several times at close range and killed. Vincent Landano was 
     convicted of the crime and sentenced to life in prison. His 
     efforts to appeal his conviction and to obtain a new trial 
     were unsuccessful and Landano sought freedom in 1982 by 
     petitioning for a writ of habeas corpus in state court.
       He offered the statement of Raymond Portas, a witness who 
     had placed Landano at the crime scene but had recanted his 
     testimony, claiming undue police influence. During the 
     hearing on Landano's petition, however, Portas was very 
     equivocal: ``It's hard to know whether you've been influenced 
     or not, as far as I am concerned, I don't know.''\28\
       The New Jersey Superior Court denied Landano's petition, 
     finding Portas' recantation to be ``untrustworthy'' and 
     ``lack[ing] the capacity to cast serious doubt upon the truth 
     of his trial testimony.''\29\ While Portas had apparently 
     believed that his testimony alone convicted Landano, three 
     other witnesses, including an accomplice, also testified. The 
     New Jersey Supreme Court also denied relief.
       In October 1985, Landano sought relief from Judge Sarokin. 
     Because the prosecutor had repeatedly reminded Portas that 
     his testimony was under oath, Judge Sarokin insisted that the 
     state court's evidentiary hearing ``was not a search for the 
     truth, but rather an exercise in harassment and intimidation 
     in an effort to dissuade the witness from any 
     recantion.''\30\ He personally believed Portas' 
     recantation\31\ but a federal statute\32\ prevented him from 
     simply substituting his own judgment outright for the state 
     court's finding. He seemed to adopt freedom for his cop-
     killer as a personal mission, writing:
       ``The court candidly admits an exhaustive search for 
     grounds to grant the writ, but could find none without 
     violating the court's oath to follow existing precedent. In 
     upholding the law, the court fears a great injustice has 
     occurred and respectfully invites reversal of its 
     decision.\33\
       In ``a bitter exercise in judicial restraint,''\34\ Judge 
     Sarokin denied Landano's petition. Landano then took 
     Sarokin's invitation for reversal to the U.S. Court of 
     Appeals. That court declined, holding that the state court's 
     hearing ``comported with due process standards and was 
     otherwise `full, fair, and adequate.'''\35\ The U.S. Supreme 
     Court refused even to review this decision.\36\
       Judge Sarokin continued his quest to free this cop-killer. 
     On June 7, 1989, Landano sought to reopen the previous habeas 
     corpus proceeding in Judge Sarokin's court because he 
     supposedly had new evidence. This time, Judge Sarokin issued 
     a conditional writ of habeas corpus and ordered New Jersey to 
     release Landano or grant him a new trial within 90 days.\37\ 
     Landano has been free to this day.
       The U.S. Court of Appeals overturned Sarokin's order, 
     ruling that a federal district court has no jurisdiction 
     until a convict first exhausts his remedies in state 
     court.\38\
       On May 1, 1991, after staying Landano's arrest following 
     the Third Circuit's decision, the New Jersey Supreme Court 
     ordered that Landano could be arrested. The next day, Judge 
     Sarokin granted Landano federal bail so he could remain free 
     pending a decision on his latest state court appeal.\39\ 
     Judge Sarokin then attempted to bully the New Jersey courts 
     into granting Landano's habeas corpus petition by declaring:
       ``Either the state court will grant the relief which this 
     court previously granted or, failing same, this court will do 
     so when the matter is returned to it--the same facts and law 
     being presented.''\40\
       He offered the following social commentary:
       ``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 executions 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.\41\
       After securing the release of this cop-killer, and 
     virtually ordering the state courts to give him yet another 
     chance, Judge Sarokin next ignored the clear precedent of the 
     U.S. Court of Appeals in seeking to give Landano additional 
     tools to enhance his chances for success in future 
     proceedings. When the FBI refused Landano's request under the 
     Freedom of Information Act (FOIA) for the agency's files on 
     his case, Judge Sarokin ordered the FBI to comply. He 
     rejected the FBI's argument that two exemptions from FOIA, 
     protecting individuals named in such documents\42\ as well as 
     individuals who supplied information during an 
     investigation,\43\ applied.
       The Third Circuit reversed Judge Sarokin regarding 
     individuals named in the documents.\44\ The U.S. Courts of 
     Appeals for at least seven different circuits have upheld 
     this principle--including the Third.\45\ On appeal, the U.S. 
     Supreme Court left this conclusion undisturbed. It seems 
     Judge Sarokin's commitment to his ``oath to follow existing 
     precedent''\46\ had evaporated.
       While the Third Circuit affirmed Judge Sarokin regarding 
     individuals who supplied information during the 
     investigation, this decision was unanimously reversed by the 
     U.S. Supreme Court.\47\ As such, none of Judge Sarokin's 
     efforts to help Landano by compromising the FBI were 
     consistent with the law.
       The Third Circuit later reversed Judge Sarokin one more 
     time on the question of granting Landano federal bail so he 
     could remain on the streets. In doing so, the court 
     demonstrated just how much Judge Sarokin was letting his 
     personal bias displace his judicial duty by flatly rejecting 
     all of Judge Sarokin's arguments. One of these was that 
     ``this court has already determined . . . that petitioner may 
     be innocent of the charges for which he was convicted.''\48\ 
     The court of appeals pointed out that ``probable innocence'' 
     is a factor relating to granting a writ of habeas corpus, not 
     to granting bail.\49\ Judge Sarokin also argued that Landano 
     ``has been at large since this court issued the writ of 
     habeas corpus . . . and, to the court's knowledge, has done 
     nothing to suggest that he presents a risk of flight or 
     danger to the public.''\50\ The court of appeals reminded him 
     that there was no legal impediment to the arrest.\51\

             B. Refusing to Follow Supreme Court Precedent

       In Blum v. Witco Chemical Corp.,\52\ Sarokin again 
     blatantly disregarded the precedents of both the U.S. Court 
     of Appeals and the U.S. Supreme Court in his quest for his 
     own preferred results.
       In this case, three chemists brought an age discrimination 
     suit against their former employer. Sarokin awarded them 
     attorney's fees plus a 20% multiplier for pre-judgment delay 
     and risk. The Third Circuit ordered Sarokin to reconsider the 
     multiplier award in light of a recent Supreme Court 
     decision.\53\ Sarokin appointed a magistrate who recommended 
     that the plaintiffs' request for a free multiplier be denied. 
     Sarokin originally adopted the magistrate's recommendation 
     but, after considering the plaintiffs' objections, changed 
     his mind and awarded a 50% multiplier instead!
       Judge Sarokin's opinion began as follows:
       ``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.\54\''
       Even though Sarokin conceded that the Supreme Court's 
     decision precluded a multiplier in this case,\55\ he 
     increased the multiplier he was originally ordered to 
     reconsider. Not surprisingly, the Third Circuit reversed 
     Sarokin and correctly identified the problem by writing that 
     ``the district court, without concealing its disapproval of 
     both the Supreme Court's decision and ours, proceeded in 
     accordance with its own views.''\56\ Because Judge Sarokin 
     had offered no explanation for awarding a 50% multiplier 
     (after earlier rejecting the plaintiffs' request for the same 
     thing), the court of appeals observed:
       ``[T]he error with the district court's judgement was the 
     50 percent multiplier it arrived at was supported only by the 
     court's own intuition. This is precisely what the Supreme 
     Court and this court held is impermissible. Neither the 
     district court nor this court is free to superimpose its own 
     view of what the law should be in the face of the Supreme 
     Court's contrary precedent.''\57\

                          C. Inventing Rights

           1. the right to loiter and harass library patrons

       a. facts
       In perhaps his most infamous decision, Sarokin turned one 
     town's effort to ensure that all its citizens can use its 
     library facilities into a personal crusade that cost the town 
     nearly a quarter of a million dollars and damage to its 
     reputation. It also exacted a heavy cost from the cause of 
     justice.
       Richard Kreimer was a homeless man in Morristown, New 
     Jersey, and often visited the town's public library. He 
     claimed he did so to read or contemplate, but the library 
     staff contended that Kreimer engaged in offensive and 
     disruptive behavior including staring at patrons and staff, 
     following them around the library and even when they left the 
     building, talking loudly to himself and others, and emitting 
     such a foul odor that patrons were prevented from using 
     entire portions of the library and staff were prevented from 
     effectively accomplishing their duties.\58\ The staff kept a 
     detailed log documenting Kreimer's ``belligerent and 
     hostile'' behavior. The Morristown mayor said that other 
     homeless people used the library facilities without similar 
     disruption.\59\
       The library's board tried to implement new rules to deal 
     with ``problem behavior'' so that all patrons could use the 
     facilities. With the aid of the American Civil Liberties 
     Union, Kreimer filed suit seeking damages for ``pain and 
     suffering, emotional distress, humiliation, negligence, 
     violation of . . . civil rights to enter a public building, 
     first amendment rights violations, harassment, defamation of 
     character, and discrimination because of his [homeless] 
     state.''\60\
       b. Judge Sarokin's decision
       Judge Sarokin first appointed two pro bono attorneys to 
     assist Kreimer in his lawsuit even though Kreimer received 
     nearly $500 per month in Social Security payments, had split 
     a $340,000 inheritance with his brother, and inherited a 
     house which he had sold for $61,000.\61\ One of those 
     attorneys admitted later that if Judge Sarokin had not taken 
     this step, the case ``would have gone away in three 
     weeks.''\62\ Instead, Kreimer made so many claims against so 
     many defendants that the city's insurance company settled for 
     $80,000 a case that the city later won on appeal. He also won 
     a $150,000 settlement in a separate harassment suit against 
     the police department.\63\
       In the suit against the town's library, Judge Sarokin rules 
     for Kreimer, insisting that the library was intentionally 
     discriminating against Kreimer because of his 
     homeless condition, his appearance, and his odor. He 
     struck down the library rules on their face, without 
     considering evidence of Kreimer's actual behavior, by 
     granting a motion for summary judgment. He concluded that 
     the generally applicable hygiene requirements violated the 
     due process clause and the equal protection clause of the 
     Fourteenth Amendment, as well as the First Amendment 
     rights of free assembly and association.\64\ Once again, 
     he opened his opinion with a sermon revealing a personal 
     crusade. He wrote:
       ``The danger in excluding anyone from a public building 
     because their appearance or hygiene is obnoxious to others is 
     self-evident. The danger becomes insidious if the conditions 
     complained of are borne of poverty. . . . Society has 
     survived not banning books which it finds offensive from its 
     libraries; it will survive not banning persons whom it 
     likewise finds offensive from its libraries. The greatness of 
     our country lies in tolerating speech with which we do not 
     agree; that same toleration must extend to people, 
     particularly where the cause of the revulsion may be of our 
     own making. If we wish to shield our eyes and noses from the 
     homeless, we should revoke their condition and not their 
     library cards.''\65\
       The Third Circuit reversed. While Sarokin insisted that 
     deferring to the library board's discretion in such decisions 
     was ``entirely inconsistent with the applicable law,''\66\ 
     the court of appeals ruled that indeed ``we must accord some 
     deference to the library officials.''\67\ The court also 
     stated a principle so obvious that only blindness from one's 
     personal crusade could ignore it:
       ``Kreimer's right has no lesser, or greater, significance 
     than that of other residents. Accordingly, his right to 
     reasonable access to the Library cannot be expanded to such 
     an extent that it denies others the same guarantee.''\68\
       The evidence shows that Richard Kreimer was not merely down 
     on his luck, homeless beyond his control, and helpless in his 
     condition. Citizens in Morristown had attempted to help 
     Kreimer, and the town had several homeless shelters; he was 
     thrown out of one because he had urinated in the chapel. Some 
     of the officials actually named in the lawsuit had tried to 
     help him. One member of the city council allowed him to spend 
     most of one winter in her home; he left after she repeatedly 
     insisted that he clean himself up.\69\
       ``The New York Times editorialized that society's general 
     attitude toward the homeless doesn't mean that library users 
     need to endure being stared at, followed around or simply 
     driven away by body odor. . . . The rightful lesson of this 
     case is that society need not apologize or surrender to every 
     accusation of unfairness.''\70\


              2. the protected status of prison-paralegals

       In 1977, the U.S. Supreme Court ruled that prisoners must 
     be afforded meaningful access to the courts.\71\ The Court 
     held that prisoners must be provided with either an adequate 
     law library or legal assistance in preparing legal documents. 
     In 1981, the Third Circuit added that this right ``must be 
     freely exercised without hindrance or fear of 
     retaliation.''\72\ The number of lawsuits over prison 
     conditions filed by inmates in federal court has 
     skyrocketed\73\ and activist judges use them as opportunities 
     to maintain supervisory control over correctional facilities.
       In 1993, a group of prisoner-paralegals filed suit before 
     Judge Sarokin alleging that the senior corrections officer in 
     the East Jersey State Prison violated their constitutional 
     rights by harassing them.\74\ They said he verbally abused 
     them, searched their legal materials, and denied one inmate a 
     meal on two occasions. The defendant filed a motion for 
     summary judgment, claiming that the prisoner-paralegals 
     lacked standing to bring the suit and that the undisputed 
     facts did not support the cause of action.
       Sarokin admitted that verbal harassment does not amount to 
     a constitutional violation.\75\ He admitted that three 
     searches of materials and two denied meals did not rise to 
     the level of ``cruel and unusual punishment'' prohibited by 
     the Eighth Amendment.\76\ One would think that the case would 
     be over if the judge decided against those claiming 
     constitutional rights violations. Judge Sarokin, however, had 
     another personal mission to pursue and insisted that 
     someone's rights had been violated. He concluded that inmates 
     not even before the court were the real victims in this case. 
     He wrote:
       ``Because a prisoner has no protected interest in providing 
     legal representation to other inmates . . . the only right of 
     access at stake in this case is that of the prisoners whom 
     the plaintiffs assist in the preparation of litigation. . . . 
     [I]f the legal assistance provided by the . . . paralegals is 
     constitutionally necessary, then it is clear that defendant's 
     alleged harassment of the paralegals gives rise to a 
     constitutional violation.''\77\
       Not only is this conclusion bizarre to the extreme,\78\ but 
     the issue of other inmates' due process rights had never been 
     raised in this case! No evidence was offered that their 
     access to the courts had been affected in any way by the 
     alleged actions of the defendant prison official. Undeterred, 
     Sarokin ordered the parties to brief this new issue and 
     appointed counsel to assist the plaintiffs in preparing their 
     brief.\79\


                             v. conclusion

       Judge Sarokin lacks the judicial temperament necessary to 
     justify his appointment to the U.S. Court of Appeals. No 
     Senator should support a nominee who has so clearly and 
     egregiously demonstrated his inability to be fair and 
     impartial. Judge Sarokin has, by his own actions, forfeited 
     his chance to be elevated to the second highest court in the 
     land. Even those Senators who apply a more lenient standard 
     regarding judicial philosophy must apply a strict test 
     regarding judicial temperament. Judge Sarokin flunks that 
     test.
       In addition, however, Judge Sarokin's judicial philosophy 
     is extremely activist and places him outside the mainstream. 
     He repeatedly ignores applicable law and pursues his own 
     social and personal causes in spite of being repeatedly 
     reversed and rebuked by higher courts. His efforts to free 
     cop-killer James Landano are especially outrageous and is 
     invention of constitutional rights so that he can effect 
     changes in social policy demonstrate his inability to 
     distinguish policymaking from judging.

                               footnotes

     \1\Legal Affairs Analyst, Coalitions for America, B.A. with 
     honors, Calvin College (1983); J.D. cum laude, State 
     University of New York (SUNY) at Buffalo (1987); M.A., SUNY-
     Buffalo (1989). Law Clerk, U.S. Court of Appeals (1988-89). 
     Many thanks to Phillip Troyer for extensive research 
     assistance.
     \2\Will v. United States, 389 U.S. 90,95 (1967).
     \3\Blum v. Witco Chemical Corp., 888 F.2d 975,977 (3d Cir. 
     1989).
     \4\Id. at 983.
     \5\Commonwealth Coatings Corp. v. Continental Casualty Co., 
     393 U.S. 145 (1968)
     \6\Haines v. Liggett Group, 140 F.R.D. 681,683 (D.N.J. 1992).
     \7\The All Writs Act, 28 U.S.C. 1651(a), allows courts of 
     appeals to issue ``all writs necessary or appropriate in aid 
     of their respective jurisdictions.''
     \8\Haines v. Liggett Group, Inc., 975 F.2d 81,88 (3d Cir. 
     1992), quoting Kerr v. United States District Court, 426 U.S. 
     394,402 (1976).
     \9\Will v. United States, 389 U.S. 90,95 (1967).
     \10\Haines, 975 F.2d at 92.
     \11\Id. at 91.
     \12\Id. at 97.
     \13\The court cited newspapers including the New York Times, 
     Wall Street Journal, and Washington Post on the east coast to 
     the Chicago Tribune in the midwest and the Los Angeles Times 
     on the west coast. Id.
     \14\Id. at 98.
     \15\Editorial, New York Times, September 10, 1992, at A22.
     \16\Kanige, ``Sarokin Upheld, by Anti-Smoking Group,'' New 
     Jersey Law Journal, June 7, 1993, at 14.
     \17\Cipollone v. Liggett Group, Inc., 785 F.2d 1108,1113 (3d 
     Cir. 1986), citing 28 U.S.C. 636(b)(1)(A).
     \18\See United States v. Raddatz, 447 U.S. 667,673 (1980).
     \19\See Fed.R.Civ.P. 72(a).
     \20\See General Rule 40D(4) of the U.S. District Court for 
     the District of New Jersey.
     \21\Cipollone, 785 F.2d at 1120.
     \22\That precedent is Seattle Times Co. v. Rhinehart, 467 
     U.S. 20 (1984).
     \23\Cipollone, 785 F.2d at 1114 n.8.
     \24\Cipollone v. Ligget Group, Inc., 106 F.R.D. 573,577 
     (D.N.J. 1986).
     \25\Commonwealth Coatings Corp. v. Continental Casualty Co., 
     393 U.S. 145 (1968).
     \26\Schroth, ``Sarokin Off Tobacco Case After Circuit's Rare 
     Move,'' New Jersey Law Journal, September 14, 1992.
     \27\Almanac of the Federal Judiciary, vol. 1, at 17 (1994).
     \28\Landano v. Rafferty, 670 F.Supp. 570,577 (D.N.J. 1987).
     \29\Id.
     \30\Id. at 578.
     \31\Id. at 579.
     \32\28 U.S.C. 2254. This statute creates a presumption of 
     correctness for factual findings by state courts during 
     habeas corpus proceedings. See Landano, 670 F.Supp. at 581-
     82.
     \33\Landano, 670 F.Supp. at 572.
     \34\Id. at 590.
     \35\Landano v. Rafferty, 856 F.2d 569,572 (3d Cir. 1988), 
     quoting 28 U.S.C. 2254(d)(6).
     \36\Landano v. Rafferty, 489 U.S. 1014 (1989).
     \37\Landano v. Rafferty, 126 F.R.D. 627 (D.N.J. 1989).
     \38\Landano v. Rafferty, 897 F.2d 661,673 (3d Cir. 1990).
     \39\Landano v. Rafferty, 782 F.Supp. 986,990 (D.N.J. 1992).
     \40\Id. at 987. Sarokin's threat my have had some effect. 
     When Landano went back to state court with his new evidence, 
     the trial court again denied his request for a new trial, but 
     the appeals court said Landano should have yet another bite 
     at the apple. That decision is now on appeal to the New 
     Jersey Supreme Court.
     \41\Id. at 987-88.
     \42\Exemption 7(C) of FOIA exempts from disclosure ``records 
     or information compiled for law enforcement purposes, but 
     only to the extent that the production of such law 
     enforcement records or information . . . could reasonably be 
     expected to constitute an unwarranted invasion of personal 
     privacy.'' 5 U.S.C. 552(b)(7)(C).
     \43\Exemption 7(C) of FOIA exempts from disclosure ``records 
     or information compiled for law enforcement purposes, but 
     only to the extent that the production of such law 
     enforcement records or information . . . could reasonably be 
     expected to disclose the identity of a confidential source.'' 
     5 U.S.C. 552(b)(7)(D).
     \44\Landano v. U.S. Department of Justice, 956 F.2d 442,426 
     (3d Cir. 1992).
     \45\See Patterson by Patterson v. FBI, 893 F.2d 595 (3d 
     Cir.), cert. denied, 111 S.Ct. 48 (1990).
     \46\Landano, 670 F.Supp. at 572.
     \47\Department of Justice v. Landano, 113 S.Ct. 2014 (1993).
     \48\Id. at 986.
     \49\Landano v. Rafferty, 970 F.2d 1230,1241 (3d Cir. 1992).
     \50\Landano, 782 F.Supp. at 993.
     \51\Landano, 970 F.2d at 1241.
     \52\702 F.Supp. 493 (D.N.J. 1988).
     \53\Pennsylvania v. Delaware Valley Citizens' Council for 
     Clean Air, 483 U.S. 711 (1987).
     \54\Blum, 702 F.Supp. at 495.
     \55\Id.
     \56\Blum v. Witco Chemical Corp., 888 F.2d 975,977 (3d Cir. 
     1989).
     \57\Id. at 983.
     \58\Kreimer v. Bureau of Police for Town of Morristown, 958 
     F.2d 1242,1246-47 (3d Cir. 1992).
     \59\See Pliskin, ``Homelessness No Bar to Library, Judge 
     Rules,'' New Jersey Law Journal, May 30, 1991.
     \60\Kreimer, 958 F.2d at 1248-49.
     \61\See Span, ``Morristown's Man on the Street,'' Washington 
     Post, October 14, 1992.
     \62\Id.
     \63\See Gottlieb, ``Settlement Ends Portion of Morristown 
     Homeless Case,'' New Jersey Law Journal, March 9, 1992.
     \64\Kreimer v. Bureau of Police for Town of Morristown, 765 
     F.Supp. 181,196 (D.N.J. 1991).
     \65\Id. at 182-83.
     \66\Id. at 187.
     \67\Kreimer, 958 F.2d at 1267.
     \68\Id. at 1265.
     \69\See Shah, ``He's Homeless and He Won't Simply Go Away,'' 
     St. Petersburg Times, May 11, 1992. This reporter described 
     Kreimer's body odor as ``so foul it gives one the sensation 
     of being garroted in the underarm of a caveman.''
     \70\Editorial, ``Library Hygiene in Morristown,'' New York 
     Times, March 28, 1992, at 22.
     \71\See Bounds v. Smith, 430 U.S. 817 (1977).
     \72\Milhouse v. Carlson, 652 F.2d 371,374 (3d Cir. 1981).
     \73\See Smith, ``Jailhouse Blues,'' National Review, June 13, 
     1994, at 40-44 (number of suits alleging inhumane treatment 
     has risen from 218 in 1966 to 53,713 in 1993).
     \74\Prisoners' Legal Association (PLA) v. Roberson, 822 
     F.Supp. 185 (D.N.J. 1993).
     \75\Id. at 189.
     \76\Id. at 189.
     \77\Id. at 190-91.
     \78\Neither of the cases Sarokin cited were on point. Both 
     Milhouse v. Carlson, 652 F.2d 371 (3d Cir. 1981) and DeTomaso 
     v. McGinnis, 970 F.2d (7th Cir. 1992), involved allegations 
     of harassment against prisoners who were themselves seeking 
     access to the courts, not against persons providing legal 
     assistance for other prisoners.
     \79\Prisoner's Legal Association, 822 F.Supp. at 192.
  Mr. LOTT. Mr. President, I also ask unanimous consent to print in the 
Record, in case they have not been included, a whole group of letters 
that have been sent in opposition to Judge Sarokin's nomination.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                        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.
                                  ____

                                        Fraternal Order of Police,


                                          Newark Lodge No. 12,

                                   Newark, NJ, September 22, 1994.
     Hon. Trent Lott,
     U.S. Senate, Washington, DC.
       Dear Senator: I am writing to you at this time in order to 
     express our strongest opposition to the appointment of Judge 
     H. Lee Sarokin to the Federal Court of Appeals. As President 
     of the Newark Fraternal Order of Police with an excess of 
     1,500 members, the appointment of this liberal jurist to such 
     an important position would be an insult to every Newark 
     Police Officer who ever wore a badge.
       On August 13, 1976, Newark Police Officer John Snow was 
     brutally slain by a coward named James Landano. Mr. Landano 
     was subsequently convicted by a jury of his peers. Over the 
     ensuing years, Mr. Landano began to use the court system in 
     an attempt to gain his release from prison.
       Judge Sarokin became involved in the case and began to 
     interject his social opinions into the case rather than just 
     interpret the law. Even though several of Judge Sarokin's 
     attempts to free Mr. Landano were reversed, Judge Sarokin 
     eventually had Mr. Landano freed from jail. After 18 years, 
     Mr. Landano still stands indicted for the murder of our 
     brother officer.
       We ask you to stand with our 250,000 members of the 
     Fraternal Order of Police and show that it is time to get 
     tough with criminals and there is no room for a liberal 
     jurist in a position such as this who frees ``COPKILLERS''. 
     We ask you to send a message to ``SET 'EM FREE LEE'' and 
     other jurists interested in pushing their own social beliefs 
     upon the rest of society, that they are in the wrong 
     profession.
       Thank you for your anticipated help.
           Fraternally,
                                                     Jack McEntee,
                                                        President.
                                  ____

                                        Fraternal Order of Police,


                                     Philadelphia Lodge No. 5,

                                               September 15, 1994.
     Re Judge H. Lee Sarokin.

     Senator Trent Lott,
     U.S. Senate, Washington, DC.
       Dear Senator Lott: The Fraternal Order of Police, 
     Philadelphia Lodge No. 5, is opposed to the appointment of 
     Federal Judge H. Lee Sarokin, to the United States Court of 
     Appeals for the Third Circuit.
       Our reasons for opposition are illustrated by the manner in 
     which Judge Sarokin handled three important cases which 
     illustrate his unacceptable judicial philosophy.
       1. U.S. v. James Landano, convicted of the murder of Newark 
     N.J. Police Officer John Snow, on August 13, 1976, at the Hi-
     Way Check Cashing Service, near Kearny, N.J. The murder took 
     place during the course of a robbery. Judge Sarokin unwisely 
     freed Landano based on specious, unverified evidence from an 
     unknown alleged witness.
       2. Cipollone v. Liggett Group, Inc. In this case, Judge 
     Sarokin was ousted from his position as Trial Judge, sitting 
     in the U.S. District Court in New Jersey. He was disqualified 
     because of remarks considered intemperate and biased. The 
     disqualification judgement was issued by the U.S. Court of 
     Appeals for the Third Circuit, in Sept. 1992.
       3. Richard Kreimer v. Public Library of Morristown, N.J. In 
     this case, Judge Sarokin was reversed after ruling against 
     the Public Library, which had barred entry to Richard 
     Kreimer, a homeless resident of the park. The Library had 
     barred Kreimer's presence on account of his offensive smell 
     and disruptive behavior, which interfered with the research 
     and study activities of other Library patrons. In upholding 
     vagrant Kreimer, Judge Sarokin revealed less concern for the 
     peaceful patrons than for the disruptive vagrant.
       These three cases illustrate an insensitivity to the public 
     interest by Judge Sarokin, which bodes ill for the legitimate 
     interest of those who nurture and protect our society. The 
     philosophy which led to these flawed judgements, augurs 
     poorly for the future.
       Of particular concern to us as Police Officers, is that to 
     free one convicted of a police officer's deliberate and cold-
     blooded murder, on the most trivial and deceptive grounds, 
     which sported with the legal system, reveals a disdainful 
     unconcern for officers whose lives are increasingly treated 
     as expendable.
       It is with this in mind that we urge you to reject H. Lee 
     Sarokin's appointment to the federal bench. Thank you for 
     your consideration.
           Sincerely,
                                                  Michael G. Lutz,
                                                        President.
                                  ____

                                                    July 26, 1994.
     Hon. Joseph R. Biden, Jr.,
     U.S. Senate, Washington, DC.
       Dear Senator Biden: 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 pretrial 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.
                                  ____



                           Organized Victims of Violent Crime,

                                      Madison, TN, August 2, 1994.
     Senator Orrin Hatch,
     Senate Judiciary Committee,
     Washington, DC.
       Dear Senator Hatch: In reference to President Bill 
     Clinton's nomination of Judge H. Lee Sarokin to the U.S. 
     Court of Appeals for the Third Circuit. We strongly urge you 
     to vote NO on his forthcoming Confirmation Hearing to this 
     court. This same Court for which the President has nominated 
     him to has found much fault with him and his lack of Judicial 
     temperment and his abundance of Judicial activism. This same 
     Court also was forced to remove him from a nine year old case 
     on grounds of ``usurpation of power''.
       The Organized Victims Of Violent Crime has no doubt the 
     Senate Judiciary Committee is well aware of the extreme 
     liberal behavior and decisions of which he is already 
     responsible for while currently sitting as a U.S. District 
     Judge in the state of New Jersey. Not only does Judge Sarokin 
     practice extreme activist Judicial philosophy, he based his 
     decisions on his own views and radical beliefs. We feel no 
     Judge should practice his or her own Judicial bias or 
     personal activism. We do not feel Judge Sarokin will be an 
     asset to our Judicial System on such a Court as powerful as 
     the U.S. Court of Appeals of the Third Circuit. He has 
     demonstrated many times over that he lacks the essential 
     qualities of Judicial fairness and temperment to be called 
     ``Your Honor''. The American people should never have to 
     accept or tolerate any Judge who ignores the tried and tested 
     and true laws in favor of writing his own as he skims along.
       The Organized Victims Of Violent Crime still remembers and 
     still chaffs from the appointment of Martha Craig Daughtery 
     to the 6th Circuit Court of Appeals. Her Judicial philosophy 
     and temperment matches that of Judge Sarokin.
       As we have watched carefully and sadly, we have seen more 
     and more liberal socialist gaining a foothold in the highest 
     offices in our Government. They now control our courts also.
       We believe our Congress can rid us of this blight that has 
     been forced upon us. First though, Congress must clean up 
     it's own houses. What better place to start than the Senate 
     Judiciary Committee who has the responsibility of saying who 
     gets voted into whatever certain high positions of such great 
     importance to our entire nation. America must once again 
     become the great free Republic she once was that was the envy 
     of the world. Until then, God help us all!!
           Sincerely,
                                                 Edith S. Hammons,
                                                        President.
                                  ____

                                             County of Cumberland,


                                        Office of the Sheriff,

                                     Bridgeton, NJ, July 21, 1994.
     William Clinton,
     President of the United States,
     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.
                                  ____



                                     Legal Defense Fund, Inc.,

                                    Manalapan, NJ, August 4, 1994.

       Dear Senators Biden, Hatch, and all Members of the 
     Judiciary Committee: We write to urge you to reject the 
     nomination of Judge H. Lee Sarokin to the U.S. Court of 
     Appeals.
       Our organization is composed of law enforcement officers, 
     their families, and supporters. We find his handling of the 
     case of cop killer Vincent Landano, and his obsession with 
     putting this criminal back on the streets repugnant.
       if Sarokin is confirmed, New Jersey's ``thin blue line'' 
     and its supporters will not forget those responsible for the 
     promotion of this radical judge.
       Please reject this nomination.
           Sincerely,
                                                        Greg Kaye.
                                  ____



                                  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 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.,
                                      League of American Families.

  Mr. LOTT. Mr. President, those letters opposing Judge Sarokin come 
from the National Organization of Fraternal Order for Police, the 
Fraternal Order of Police in Newark, NJ, the Fraternal Order of Police 
in Philadelphia, the Law Enforcement Alliance of America, the Organized 
Victims of Violent Crime, the sheriffs in New Jersey, the Joe 
Occhipinti Legal Defense Fund, and the League of American Families.
  And I would like to read from one of the letters just a passage that 
really bothered me. It is from the Fraternal Order of Police, Newark, 
Lodge Number 12.

       Dear Senator: I am writing at this time in order to express 
     our strongest opposition to the appointment of Judge H. Lee 
     Sarokin to the court of appeals. As President of the Newark 
     Fraternal Order of Police with excess of 1,500 members, the 
     appointment of this liberal jurist to such an important 
     position would be an insult to every Newark police officer 
     who ever wore a badge.

  That is pretty strong, and that is from New Jersey. That is from the 
area where this judge has been ruling.
  There are comments like this throughout these letters and they are 
not frivolous, light letters. They refer to specific cases and specific 
rulings by this particular judge.
  I would like to note, also, a piece that has been written by the 
Coalition of America that goes through a list of concerns about Judge 
Sarokin and including several of the cases that have already been 
referred to about how he opposes mandatory uniform sentencing and his 
involvement in the cop killer case and that he has ignored law to 
create loopholes for criminal defendants.
  The evidence against Judge Sarokin is clear. He should not be given a 
promotion. He really should be under questioning about why he should be 
allowed to stay where he is with all this conduct, like being taken off 
a case by the appellate court--and now we are going to promote him to 
serve in that same appellate court. I think he has done enough damage 
already. Putting on a robe of a judge does not make anybody above the 
law or precedents.
  Our legal system is meant to find justice, not to undertake crusades. 
Our judges should follow the law and punish wrongdoing, not throw away 
laws when it is convenient, or free criminals because of the judge's 
own views or the politics of the case.
  Judge Sarokin has thrown out law and precedent, he has undertaken 
crusades, and he has not been impartial. Can we trust him now with a 
higher, more important position?
  How many times will it take for the administration to realize that it 
is undermining its own program of making this country safer for all 
Americans when they come up with judges like this?
  Many Members have said they want to be tough on crime. Well, a vote 
for Judge Sarokin is not a vote for tougher criminal penalties, or 
respect for law and standards. The reverse is true.
  I urge the opposition of all my colleagues to this nomination. If you 
really do want strong law and order, if you really do want to do 
something about fighting crime in America, then you should vote against 
this nominee. He does not deserve to be promoted.
  I yield the floor, Mr. President.
  Mr. LEAHY. Mr. President, I join in supporting Judge H. Lee Sarokin 
to be a judge on the U.S. Court of Appeals for the Third Circuit. Judge 
Sarokin has served with distinction on the U.S. District Court for the 
District of New Jersey since 1979. Before that he worked in private 
practice for 24 years before that appointment. He has taught at Rutgers 
University. He has received high marks from the American Bar 
Association and the New Jersey Bar Association.
  During his service on the district court, Judge Sarokin's work and 
reputation have earned him the distinction of being named chair of the 
Third Circuit Judicial Conference twice. He was also Chair of the 1993 
Nation Conference of Federal Judges, and has been named to chair this 
conference again in 1997. He was also reappointed to a second term as 
chair of the Federal Judges Association.
  He has received support from many people, including former Chief 
Judges of the third circuit Ruggero Aldisert, Leon Higginbotham, and 
John Gibbons. Former Nixon appointees to the third circuit, Judge 
Joseph Weis and Judge Leonard Garth both support and speak very highly 
of him. I think we can all agree that this is indeed a distinguished 
group of supporters. And if that were not enough, four former U.S. 
attorneys, a former New Jersey Attorney General, and the former 
chairman of the New Jersey State Crime Commission strongly endorse his 
nomination.
  He has also received strong support from the New Jersey State 
Policemen's Benevolence Association, the Bergen County Police 
Conference, the State Trooper's Noncommissioned Officers Association, 
the Police Foundation, and the State Troopers Fraternal Association. He 
has the support of numerous prominent law professors.
  Judge Sarokin's legal ability is highly respected and his integrity 
is beyond question. Judge Sarokin received his undergraduate education 
from Dartmouth and his law degree from Harvard. He taught law for 5 
years at Rutgers University, and has lectured at numerous other 
prominent law schools, including Harvard and Yale. He has done a wide 
variety of pro bono work, including representing indigent persons at 
the request of judges.
  Lee Sarokin is a judge of proven competence, temperament, and 
fairness. He is a humble person. He has the exceptional experience of 
15 years on the district court. I believe Judge Sarokin is an excellent 
choice for the Third Circuit Court of Appeals.
  Mr. DOMENICI addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from New 
Mexico [Mr. Domenici].
  Mr. DOMENICI. Mr. President, I am not going to speak on this subject, 
but rather seek consent that I be permitted to speak for 5 minutes, as 
if in morning business.
  The PRESIDING OFFICER. Hearing no objection, the Senator from New 
Mexico is recognized for up to 5 minutes, as if in morning business.
  Mr. DOMENICI. Thank you Mr. President. In particular I want to thank 
Senator Brown, who is scheduled to go next on the subject before the 
Senate, for yielding 5 minutes of his time. I know it is an 
inconvenience, but I thought I would make a report to the Senate about 
a very important event that occurred today.

                          ____________________