[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for the quorum call be rescinded.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.
____________________