[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]

 
                USDA AGREES TO REINSTATE DR. KARL MERTZ

  Mr. HELMS. Madam President, earlier today, I lifted the holds that I 
felt obligated several months ago to place on all agriculture 
legislation and nominations. I lifted the holds when the able Secretary 
of Agriculture, Mr. Espy, and I agreed last evening on a mechanism by 
which a gentleman named Dr. Karl Mertz will be reinstated to his 
previous job, a job from which he should not have been dislodged in the 
first place.
  Secretary Espy has assured me in a letter that this will be done 
without further delay.
  Dr. Mertz, by way of explanation, is the highly respected USDA 
employee who earlier this year was removed from his job simply because 
he questioned a proposal by the Department of Agriculture to adopt a 
number of elements of the homosexual agenda. That is putting it mildly.
  To be blunt about it, the Department of Agriculture is being overrun 
by homosexuals, and they have been running the store to a great extent. 
I took offense at that, particularly when this good man, Dr. Mertz, was 
removed from his job for having made a sensible statement.
  Dr. Mertz was in Biloxi, MS, on personal leave when he was 
interviewed by a television reporter who asked him about the homosexual 
practices and proposals in the USDA. Dr. Mertz made the statement that 
we ought to be heading ``toward Camelot, not Sodom and Gomorrah.''
  By nightfall, this good man was being removed from his job and 
transferred to another job for which he was not qualified and had no 
experience, and the USDA stonewalled when I protested. That is when I 
put the holds on everything on the calendar involving the U.S. 
Department of Agriculture. I am not going to stand idly by when a good 
and decent man is persecuted by homosexuals in the USDA.
  I finally won my point last night. Secretary Espy assured me in 
writing that he would reinstate Dr. Mertz, and he gave his commitment 
that Dr. Mertz would not again be removed without first being provided 
the opportunity of a public hearing, a public hearing that will occur 
here in Washington, DC, if that is where Dr. Mertz wants it to be 
conducted.
  Let me read just a portion of Secretary Espy's letter to me, dated 
October 3. It will be only a portion but I ask unanimous consent to 
have printed in the Record the entire letter at this point.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                 The Secretary of Agriculture,

                                  Washington, DC, October 3, 1994.
     Hon. Jesse Helms,
     U.S. Senate, Washington, DC.
       Dear Senator Helms: Let me take this opportunity to inform 
     you of the status of Dr. Karl Mertz of our Agricultural 
     Research Service. As you know, Dr. Mertz was reassigned from 
     his position as an Equal Employment Opportunity officer 
     because of actions he took which strongly indicate that Dr. 
     Mertz disagrees with, and cannot faithfully implement, our 
     current nondiscrimination policy.
       Since that time, Congress has adopted legislation which 
     requires the Department of Agriculture to provide the 
     opportunity for a public hearing to anyone in Dr. Mertz's 
     situation prior to removing the employee from his or her 
     current position. This legislation requires the Department to 
     return to his or her former position any employee who has 
     been removed for publicly criticizing department policies 
     since February 15, 1994. This legislation applies to Dr. 
     Mertz.
       In keeping with this Congressional mandate, the Department 
     will return Dr. Mertz to his former Equal Employment 
     Opportunity position without further delay pending an 
     opportunity for a public hearing. As you know, Dr. Mertz has 
     filed a complaint with the Federal Office of Special Counsel. 
     If the Special Counsel determines that Dr. Mertz's 
     constitutional or legal rights were violated Dr. Mertz will, 
     if he so chooses, retain his job as an Equal Employment 
     Opportunity manager. If the Special Counsel does not 
     determine that Dr. Mertz's constitutional or legal rights 
     were violated, before the Administration transfers Dr. Mertz 
     to a position he finds unacceptable, the Department will give 
     Dr. Mertz the opportunity for a public hearing pursuant to 
     the Congressional legislation at a mutually acceptable 
     location.
           Sincerely,
                                                        Mike Espy.

  Mr. HELMS. Secretary Espy says: ``In keeping with this congressional 
mandate''--and he is speaking of an amendment that I have put on two 
pieces of legislation requiring the USDA to do precisely what Secretary 
Espy agreed to do in writing last night. So:

       In keeping with this Congressional mandate, the Department 
     will return Dr. Mertz to his former Equal Employment 
     Opportunity position without further delay pending an 
     opportunity for a public hearing. As you know, Dr. Mertz has 
     filed a complaint with the Federal Office of Special Counsel. 
     If the Special Counsel determines that Dr. Mertz's 
     constitutional or legal rights were violated Dr. Mertz will, 
     if he so chooses, retain his job as an Equal Opportunity 
     Employment manager. If the Special Counsel does not determine 
     that Dr. Mertz's constitutional or legal rights were 
     violated, before the Administration transfers Dr. Mertz to a 
     position he finds unacceptable, the Department will give Dr. 
     Mertz the opportunity for a public hearing, pursuant to the 
     Congressional legislation at a mutually acceptable location.

  That letter is perfectly satisfactory to me. I believe my previous 
unanimous-consent request covers the printing of the entire letter.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. HELMS. I thank the Chair.
  Now, Madam President, Senators may also be interested to note that, 
included in the crop insurance bill, which is likely to pass the Senate 
today and be sent to President Clinton for his signature, is the 
amendment that I offered which, in effect, codifies this agreement 
between Secretary Espy and the this Senator. It reads:

       Notwithstanding any other provision of law, no employee of 
     the United States Department of Agriculture shall be 
     peremptorily removed, on or after February 15, 1994, from the 
     position of the employee without an opportunity for a public 
     or nonpublic hearing, at the option of the employee, because 
     of remarks made during personal time in opposition to 
     policies, or proposed policies, of the Department, including 
     policies or proposed policies regarding homosexuals. Any 
     employee removed on or after February 15, 1994, without the 
     opportunity for such a hearing shall be reinstated to the 
     position of the employee pending such a hearing.

  Madam President, I wrote that amendment consciously to give Secretary 
Espy no alternative, unless he was willing to violate the law at the 
demand of the homosexuals in his Department.
  So, Mr. President, 6 months after Dr. Mertz was summarily removed 
from his job, it appears that this issue has been resolved, and Dr. 
Mertz' amendment rights upheld.
  Let me remind Senators what happened to Dr. Karl Mertz, a former 
equal employment opportunity manager for the 10 State southeastern 
region of the Agricultural Research Service in Athens, GA.
  Despite his spotless record, Dr. Mertz was--on March 28, 1994--handed 
a letter by his supervisor telling him he had been removed from the EEO 
staff. As Dr. Mertz put it, he was summarily ``stripped of a title, 
tripped of support staff, stripped of working in the field of [his] 
expertise,'' and then transferred immediately to a busy work position 
newly created job dealing with workforce forecasting--whatever that 
is--which was a purgatory created for him by his superiors.
  What was Dr. Mertz's heinous offense that cost him his position in 
USDA? On his own time, and after making it clear his views did not 
reflect those of the Department, he dared to criticize the Department's 
transparent efforts to promote the homosexual agenda in the Federal 
workplace.
  Shortly after a March 4, 1994, USDA conference, and while on his 
personal time, WLOX-TV in Biloxi MS, interviewed Dr. Mertz about the 
Department's proposed homosexual initiatives. Dr. Mertz stated that on 
a personal level, he took exception with the USDA's proposals that 
partners of homosexual employees be offered the same taxpayer funded 
benefits as the legally married spouses of heterorsexual workers, 
saying:

       USDA has had a reputation, rightly or wrongly, of having a 
     plantation mentality, and no one would deny we need to get 
     away from that kind of situation. But we need to be moving 
     toward Camelot, not toward Sodom and Gomorrah, and I'm afraid 
     that where our leadership is trying to take us.

  This, I say again Mr. President, was after Dr. Mertz made clear that 
he was voicing his own views--not the Department's. By that evening, 
reports the Wall Street Journal, the homosexual lobby had contacted the 
``higher-ups'' at the Department demanding they remove Dr. Mertz.
  So, for exercising his rights under the first amendment of the 
Constitution, Dr. Mertz lost his job. Sure, he retained his grade and 
salary, but he was stripped of his field of work, his responsibilities, 
and everything that made his work meaningful to him.
  Mr. President, I do not recall seeing where it says that one must 
check his or her constitutional rights at the door when one joins the 
staff of the Department of Agriculture. But that is evidently the case 
now if you want to exercise those rights in opposing the agenda of the 
powerful homosexual lobby.
  After reading of Dr. Mertz's case in the Wall Street Journal and the 
Washington Times, I called Secretary Espy, and I wrote him a letter, 
dated June 27, 1994, requesting that he put Dr. Mertz back on his job. 
Once Secretary Espy was willing to rectify this situation by restoring 
Dr. Mertz to his rightful position, I would then remove my holds from 
USDA nominations and their projects before the Senate.
  Mr. President, I ask unanimous consent that the articles in the Wall 
Street Journal and the Washington Times as well as my June 27, 1994, 
letter to Secretary Espy be placed in the Record at the conclusion of 
my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  [See exhibit 1.]
  Mr. HELMS. It was ironic that neither I, nor my staff, heard from 
Secretary Espy until the day I was on the floor of the U.S. Senate 
offering the first of two amendments to the fiscal year 1995 
agriculture appropriations bill. In fact, I heard from Secretary Espy 
twice on July 19. Apparently he thought the situation grave enough at 
that time to pen not just one, but two letters explaining his decision 
to push Dr. Mertz around at the behest of the homosexual lobby.
  The next day, I offered, and the Senate passed, my second amendment 
to the fiscal year 1995 appropriations bill protecting the free speech 
rights of employees. The amendment, passed by a vote of 59-41, 
prohibits USDA from removing any employee from his or her position 
without public hearings on the basis of their remarks on their own time 
opposing the Department's policies on homosexuals. The amendment would 
have restored an individual--such as Dr. Mertz--to his or her position 
if such action had occurred prior to the law's enactment.
  During the debate on my amendment, I addressed the discrepancies in 
Secretary Espy's letter regarding the direction in which the Department 
of Agriculture is heading regarding special rights for homosexuals and 
lesbians. Of course, the U.S. Senate concurred with me the day before 
when they passed my first amendment to the fiscal year 1995 
appropriations bill--by a vote of 92-8--that would have prohibited USDA 
from using Federal funds to conduct seminars or other activities to 
encourage or to promote homosexuality as a morally acceptable 
lifestyle.
  Senator Bumpers promptly offered an amendment which gutted the 
amendment to restore Dr. Mertz to his position. The Senate then passed 
my original amendment by voice vote as part of the Federal Crop 
Insurance Reform Act of 1994. Fortunately for the employees at the 
USDA, this provision will remain in the compromise struck between the 
House and Senate on crop insurance legislation--H.R. 4217--and will be 
signed into law once this bill passes the Senate.

  Mr. President, I ask unanimous consent that my amendment which will 
be included in H.R. 4217 be included in the Record at the conclusion of 
my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  [See exhibit 2]
  Mr. HELMS. Mr. President, since I decided to place a hold on all 
agricultural nominees until Dr. Mertz was returned to his previous 
position, I heard from folks inside and outside the Beltway. I had 
nothing personal against any of the individuals on the calendar whose 
nominations were reported by the Agriculture Committee. In fact, I 
daresay the 13 other Senators who signed a letter to Senator Dole 
objecting to any unanimous consent agreements on the various 
agriculture nominees had anything personal against them as well.
  But these 13 other Senators realize, as I did, that the Federal 
Government, and in particular the USDA, wronged Dr. Mertz. The American 
people realized Dr. Mertz had been wronged as well. Scores of letters 
have poured into my office from folks around the country applauding Dr. 
Mertz's courage to speak out against moral decay in the Federal 
Government as it attempts to indoctrinate its employees.
  However, in his three letters to this Senator, not once did Secretary 
Espy admit what the Senate felt to be the truth when it voted on July 
20 1994--that Dr. Karl Mertz had been punished because he dared to 
speak his conscience when it comes to a matter of moral and spiritual 
significance.
  Perhaps Secretary Espy or someone at the Department read the 
Washington Times editorial on July 23, 1994, titled ``Helms vs Espy, 
Round One'' which stated ``Whether Mike Espy will see the error of his 
ways remains to be seen.'' The Wall Street Journal, in an editorial on 
August 4, 1994, accurately pointed out that ``The ball is now in 
Agriculture Secretary Mike Espy's court.''
  Mr. President, I ask unanimous consent that the editorials from the 
Wall Street Journal and the Washington Times be printed in the Record 
at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  [See exhibit 3.]

                               Exhibit 1

                     [From the Wall Street Journal]

                   A Different Kind of Whistle Blower

                             (By Max Boot)

       Karl Mertz is a whistle-blower. But unlike most members of 
     that species, he's not exposing sexual harassment on the job 
     or military contractors who overbill the government. He's 
     blowing the whistle on a less publicized kind of fraud: the 
     promise that affirmative action policies result in a more 
     ``just'' society.
       Mr. Mertz has seen how such policies operate from the 
     inside. Since 1987, he's been a senior Equal Employment 
     Opportunity manager at the Agriculture Department in Atlanta, 
     a commissar in the battle against racism, sexism and other 
     ``isms.'' Before that, he performed similar jobs for the 
     Labor Department and the Army. It's a calling for which he 
     has impeccable credentials: After getting a Vanderbilt 
     doctorate, he went to work as a Methodist pastor in 
     Mississippi and promptly got in trouble with the locals for 
     preaching racial tolerance.
       Like most Americans, Mr. Mertz is dedicated to ``equal 
     opportunity'' for all, no matter what race, creed or sex. But 
     he quickly found that those rules don't apply to white males 
     like himself. When he's applied for numerous EEO jobs at 
     other federal agencies since 1984, he's been turned down 
     cold. At the Internal Revenue Service, he got top scores on 
     his exam but didn't even land a job interview; all eight 
     finalists were black females. Mr. Mertz tried pursuing a job-
     discrimination claim against the government, but when that 
     proved fruitless he decided to express his frustration on 
     CNN.
       On the program, aired Feb. 20, Mr. Mertz declared: ``People 
     in the '60s set up a big policy machine and said we're going 
     to try and open up doors for people who have been wrongly 
     excluded from society, and then they put the machine in gear, 
     and kind of turned their backs on it. Now it's rumbling 
     across the landscape doing pretty much what it wants.''
       Mr. Mertz tells some hair-raising stories about what the 
     machine is doing. Agriculture Department managers hire 
     ``twofers'' (say, a black female) or ``threefers'' (say a 
     disabled Hispanic female) in order to get a bonus for meeting 
     affirmative action quotas. Postdoctoral fellowships are 
     funded for one year if the recipient is a white male, two 
     years if he (or, more likely, she) is a minority. And--get 
     this--a new training program at the department, designed 
     to build self-esteem, is open only to senior African-
     American male managers. ``These people are already in 
     senior positions!'' Mr. Mertz exclaims. ``Why spend 
     taxpayers' money to boost their self-esteem?''
       Mr. Mertz has had to live with such programs for a while. 
     What he wasn't prepared for was Agriculture Secretary Mike 
     Espy's gay-rights agenda, part of the Clintonites' kowtowing 
     to a key group.
       At a Washington meeting of the department's affirmative-
     action administrators on Feb. 25, Mr. Mertz listened to a 
     report by the head of the department's gay employees group. 
     An outline distributed by the gay activist during her 
     presentation states: ``Until our relationships are recognized 
     and respected and benefits are available to our partners and 
     families, we are not full members of Team USDA.'' Top 
     executives pledged to hold ``sensitivity training'' to spread 
     this message among the ranks, and to punish those who don't 
     toe the line.
       In other words, homosexual employees aren't just asking to 
     be left alone--Mr. Mertz is in favor of that. They want other 
     employees to actively approve of their lifestyle. And Mr. 
     Espy is backing the gay-rights agenda with taxpayer-funded 
     indoctrination courses for the department's workers. ``I was 
     pushed as far as I could go,'' Mr. Mertz says.
       A week later, on March 4, Mr. Mertz attended a departmental 
     conference in Biloxi, Miss. Afterward, a local TV reporter 
     asked him to comment on the gay-rights policy. After making 
     clear that he was voicing his own views, not the 
     department's, the Christian expressed his disapproval of 
     homosexuality and said that the Agriculture Department should 
     be headed ``toward Camelot, not Sodom and Gomorrah.''
       When he got home to Atlanta later that night, Mr. Mertz 
     received a phone call from a Washington-based Agriculture 
     Department bureaucrat who said he had heard about the TV 
     interview from gay activists. Then silence--until March 28, 
     when Mr. Mertz was summoned into the office of Mary Carter, 
     South Atlantic area director of the department's Agriculture 
     Research Service.
       Without waiting to hear his side of the story, Ms. Carter 
     handed him a momorandum announcing that his TV interview 
     ``reflect[s] a disagreement with Departmental Civil Rights 
     Policy, which could seriously undermine your ability to 
     perform your responsibilities.'' Then without hint of due 
     process, he was transferred, effective immediately, to a 
     newly created job dealing with something called ``work force 
     forecasting.''
       Ms. Carter insists that the reassignment ``isn't 
     punishment,'' but try telling that to Mr. Mertz. ``I've been 
     stripped of a title, stripped of support staff, stripped of 
     working in the field of my expertise,'' he complains.
       The truly noxious part of this is that Mr. Mertz is being 
     punished for exercising his First Amendment rights, not--as 
     the memo claims--failing to do his job. In a telephone 
     interview, Ms. Carter couldn't name a single instance when 
     Mr. Mertz had failed to enforce department policy for 
     homosexuals or anyone else. In fact, Mr. Mertz's evaluation 
     forms give him high marks in every category, including 
     ``supports EEO and Civil Rights Programs.''
       Given what's happened, it's a bitter irony that Mr. Espy's 
     statement on civil rights policy says: ``I am especially 
     concerned about allegations of a `culture of reprisal' at 
     USDA.'' The secretary was writing about reprisals for filing 
     affirmative action complaints, but that concern is equally 
     pertinent here.
       Mr. Mertz is appealing for help from those who 
     traditionally champion the cause of whistle-blowers, ranging 
     from the federal Office of Special Counsel to ``60 Minutes'' 
     to various government-watchdog groups. It will be 
     interesting--and highly telling--to see what support he gets.
                                  ____


               [From the Washington Times, June 13, 1994]

    Man's Opinions Lead to Transfer--He Spoke Against Gay Rights at 
                         Agriculture Department

                            (By Ruth Larson)

       Karl Mertz has spent his professional life helping 
     guarantee equal employment opportunities for federal 
     employees, but voicing his personal opinions on homosexuality 
     cost him his job at the Department of Agriculture.
       For seven years Mr. Mertz, 49, was the equal employment 
     opportunity manager for the 10-state Southeastern region of 
     the Agricultural Research Service, based in Athens, Ga. On 
     March 28 he was removed from his GM-13 post for remarks made 
     during a March 4 TV interview.
       In the interview, Mr. Mertz took exception with USDA 
     policies on homosexuals. In particular, he opposed 
     departmental proposals that partners of homosexual workers be 
     offered the same benefits as spouses of heterosexual workers.
       ``USDA has had a reputation, rightly or wrongly, of having 
     a plantation mentality, and no one would deny we need to get 
     away from that kind of situation,'' Mr. Mertz said. ``But we 
     need to be moving toward Camelot, not toward Sodom and 
     Gomorrah, and I'm afraid that that's where our leadership is 
     trying to take us.''
       As an EEO manager, Mr. Mertz enforced the Civil Rights Act, 
     which forbids discrimination based on race, sex, age or 
     religious beliefs.
       Mr. Mertz was on annual leave at the time of the interview, 
     and the segment, which aired that evening on WLOX-TV in 
     Biloxi, Miss., made clear that his comments reflected his 
     personal views.
       In a telephone interview, Mr. Mertz said his reassignment 
     to work force forecasting--a job in which he has ``no 
     experience, no training and no interest''--was in retaliation 
     for his views.
       ``I believe that my freedoms of speech and religion have 
     been trampled,'' Mr. Mertz said in a letter to The Washington 
     Times. ``Furthermore, I sincerely believe that USDA and the 
     Agricultural Research Service have created, and are expanding 
     upon, a work environment hostile to heterosexual employees.''
       Mr. Mertz has filed a complaint with the Office of Special 
     Counsel, arguing that he was removed without due process and 
     that he suffered reprisals for exercising his First Amendment 
     right to free speech.
       Government employees who disclose fraud or abuse are 
     protected under whistleblower laws. But their rights under 
     the First Amendment must relate to matters of public concern, 
     and their interests are weighed against the government's, an 
     administration official said.
       USDA spokesman Tom Amontree declined to comment on the case 
     because it is a personnel issue.
       But at a department diversity conference in April, 
     Agriculture Secretary Mike Espy urged participants to 
     cultivate increased sensitivity when managing ``people of 
     different ethnic and religious groups, people with 
     different lifestyles, people of the opposite sex.''
       Homosexual advocacy groups decried Mr. Mertz's view.
       ``It undermines the whole concept of the discrimination-
     free workplace, and it's particularly inappropriate coming 
     from an EEO manager,'' said Gregory King, spokesman for the 
     Human Rights Campaign Fund.
       Mr. Mertz said that when he arrived home in Atlanta the 
     evening the interview was broadcast, a senior USDA official 
     called to tell him Mr. Espy had received complaints from 
     homosexual groups.
       On March 28, Mr. Mertz was handed a letter telling him he 
     was being removed from the EEO staff. The letter said his 
     statements in the interview ``reflect a disagreement with 
     departmental civil rights policy'' that could hamper his 
     ability to handle EEO duties.
       ``As a private citizen you have every right to express your 
     opinions freely. . . . However, you must recognize the fact 
     that in publicly disagreeing with an admittedly controversial 
     position of the departmental leadership, you have made it 
     difficult for employees and managers of the agency to accept 
     that you actively support these same policies in your 
     official assignment,'' the letter said.
       Mr. Mertz was allowed to retain his grade and salary in the 
     move.
       ``Getting that letter was a shock,'' Mr. Mertz said. ``No 
     due process--I'd broken no laws. In fact, the things we're 
     being asked to do, accepting the homosexual lifestyle, are 
     illegal. They're not part of the civil rights law, they're 
     not the law of the land, and they are a personal affront to 
     all I believe.''
                                  ____



                                                  U.S. Senate,

                                    Washington, DC, June 27, 1994.
     Hon. Mike Espy,
     Secretary, Department of Agriculture,
      Washington, DC.
       Dear Mike: You're too nice a guy and have far too much 
     going for you to be participant in letting Dr. Karl Mertz's 
     career go down the drain. He's a good guy and has served USDA 
     well. However, I've got no ax to grind except that Mertz--and 
     you and I, and everybody else--deserve better than to risk 
     reprisal for taking a stand on moral and spiritual matters.
       I appreciate your calling me back. I merely wanted you to 
     know of my respect for you--and of my determination that 
     neither USDA nor any other federal entity is going to get by 
     with pushing faithful people like Mertz around. I don't know 
     the man but I have looked into this episode--and Mertz does 
     not deserve the treatment he's getting.
       Put Mertz back on his job and I'll remove my holds from 
     USDA nominations and projects.
       Kindest personal regards.
           Sincerely,
                                                      Jesse Helms.

                               Exhibit 2

     SEC. 302. FIRST AMENDMENT RIGHTS OF EMPLOYEES OF THE UNITED 
                   STATES DEPARTMENT OF AGRICULTURE.

       Notwithstanding any other provision of law, no employee of 
     the United States Department of Agriculture shall be 
     peremptorily removed, on or after February 15, 1994, from the 
     position of the employee without an opportunity for a public 
     or nonpublic hearing, at the option of the employee, because 
     of remarks made during personal time in opposition to 
     policies, or proposed policies, of the Department, including 
     policies or proposed policies regarding homosexuals. Any 
     employee removed on or after February 15, 1994, without the 
     opportunity for such a hearing shall be reinstated to the 
     position of the employee pending such a hearing.
                                  ____


                               Exhibit 3

              [From the Wall Street Journal, Aug. 4, 1994]

                            Help From Helms

       Senator Jesse Helms is often a figure of fun for the 
     nattering classes but unlike many of his colleagues, he 
     doesn't shy away from unpopular causes. Karl Mertz can be 
     grateful for that. As reported on this page by Max Boot (``A 
     Different Kind of Whistle-Blower,'' April 27), Mr. Mertz is 
     the Agriculture, Department equal employment opportunity 
     officer removed from his post for questioning a new gay-
     rights policy. In an effort to get redress for Mr. Mertz, 
     Senator Helms has put a hold on several administration 
     nominees and proposed two amendments, passed by the Senate, 
     to the agriculture appropriations bill. The most important of 
     the Senate's amendments retroactively forbids the Agriculture 
     Department from removing an employee from his job without 
     hearings for making remarks about gay policies outside of 
     working hours. The ball is now in Agriculture Secretary Mike 
     Espy's court.
                                  ____


               [From the Washington Times, July 23, 1994]

                    Helms vs. Espy, Round One, Etc.

       First amendment alert: Sen. Jesse Helms is in the middle of 
     a bravura performance in defense of mistreated Agriculture 
     Department employee Karl Mertz, pulling out all the 
     legislative and rhetorical stops in his quest for 
     restitution.
       For seven years Mr. Mertz, 49, had been the equal 
     employment opportunity manager for the 10-state Southeastern 
     region of the Agricultural Research Service, based in Athens, 
     Ga. But his career in that office came to a screeching halt 
     when, on March 4, while on vacation, he voiced his objections 
     to new USDA policies on homosexuals in a TV interview, 
     particularly the department's move to allow homosexual 
     partners of Agriculture employees to be covered by agency 
     benefits. Reaction from the thought police was virtually 
     instantaneous: When he arrived home in Atlanta the evening 
     the interview was broadcast, a senior USDA official called to 
     tell him Mr. Espy had received complaints from homosexual 
     groups.
       And then, on March 28, Mr. Mertz was handed a letter 
     telling him he was being removed from the EEO staff. The 
     letter said his statements in the interview ``reflect a 
     disagreement with departmental civil rights policy'' that 
     could hamper his ability to handle EEO duties. ``As a private 
     citizen you have every right to express your opinions freely. 
     . . . However, you must recognize the fact that in publicly 
     disagreeing with an admittedly controversial position of the 
     departmental leadership, you have made it difficult for 
     employees and managers of the agency to accept that you 
     actively support these same policies in your official 
     assignment,'' the letter said.
       Mr. Helms just couldn't agree that a government employee 
     should be penalized for voicing his personal opinions. Last 
     week, he put a ``hold'' on confirmation of four 
     administration nominees in an effort to force Agriculture 
     Secretary Mike Espy to reinstate Karl Mertz to his job (he 
     was reassigned, to a job for which he has no training, no 
     experience and no interest). And this week, he proposed an 
     amendment--passed by the Senate 59-41--prohibiting removal, 
     without public hearings, of employees who make remarks on 
     personal time opposing the USDA's homosexual policies. 
     Another Helms amendment, prohibiting ``the use of taxpayer 
     funds to encourage employees to accept homosexuality as a 
     legitimate or normal lifestyle,'' passed 92-8.
       Whether Mike Espy will see the error of his ways remains to 
     be seen. But here's to Sen. Helms, a man could never be 
     accused of pulling his punches where principle is concerned.

  Mr. HELMS. Mr. President, whatever the reason, I am pleased that 
Secretary Espy agreed to return this faithful employee to his position 
at the Department of Agriculture. I am confident that the homosexual 
lobby is displeased and I am sure their disapproval of Secretary Espy's 
actions will be heard loud and clear.
  But regardless of who stands in the way, the defense of our citizens' 
constitutional right to express freely their opinions when it comes to 
moral and spiritual convictions is a defense well worth the fight. When 
the Federal Government decides that this right is no longer valid, the 
miracle of America will be in grave jeopardy.


                             THE CRIME BILL

  Mr. HELMS. Madam President, having been a Member of the Senate for 22 
years, it still seems remarkable to contemplate that, for no more than 
1 or 2 years out of those 22, there has been, every year, a so-called 
crime bill and, without exception the American people have been 
exhorted, every year, to believe that this crime bill would take care 
of the crime problem in America once and for all.
  I remember hearing it day after day, year after year: ``This is it. 
Just spend these billions of dollars or hundreds of millions of 
dollars,'' and so forth. And what did it get us? Nothing.
  The proponents of each of these crime bills have boasted that this 
one, their crime bill, do you not see, would be the sure-fire miracle 
cure. Every time there have been assurances that crime in the streets 
would be stopped and drug trafficking and murders and rapes and other 
acts of violence would be things of the past.
  These statements were made by Senators in good faith who I am sure 
believed what they were saying. Slowly but surely, it has finally 
become obvious that America's crime problem will be solved only when 
one or two other problems have been solved. As a nation, the American 
people must--and I underline ``must''--restore some fundamental 
principles upon which this country was founded in the first place. If 
we do not do that, nothing is going to work.
  For weeks this year, there has been a steady flow of the same old 
political rhetoric about the 1994 crime bill with numerous charges and 
countercharges. Last month at a church outside of Washington, President 
Clinton said that the 1994 crime bill gives America a chance, a chance 
to be tough and smart. I do know what he meant by that statement, but 
that is what he said. It was certainly an interesting semantical 
performance. Then, with a great oratorical flourish, the President 
launched into bewildering comments. He said:

       My fellow Americans, the problem of violence is an American 
     problem.

  Is that news?
  Then he said:

       It has no partisan nor philosophical element. Therefore, I 
     urge you to find ways as quickly as possible to set aside 
     partisan differences and pass a strong, smart, tough crime 
     bill.

  When I heard him say that on the news--there was a taped portion of 
the President's speech being replayed in a newscast--it occurred to me 
that so many Americans have already compared this rhetoric with the 
President's actions on crime prevention.
  Consider, for example, his nominee for the Eleventh Circuit Court of 
Appeals, Rosemary Barkett, confirmed by the Senate 61 to 37 on April 14 
of this year. Sixty-one Senators out of 100 chose to ignore the fact 
that during her tenure on the Supreme Court of Florida, Judge Barkett 
sought to prevent the enactment of laws to ban obscenity and preserve 
community order and decency. She was opposed to it, and she made no 
bones about it.
  She contrived roadblocks to laws that are essential to community 
policing and to maintaining law and order. While on the Florida bench, 
Judge Barkett issued a series of search and seizure decisions which, if 
and when implemented, would severely hamper the ability of the police 
to enforce laws against drug trafficking and other crimes.
  Mr. Clinton put this woman on the Eleventh Circuit Court of Appeals, 
and in the next breath he says, ``Look at how tough I am.''
  This is another case, I suppose, of an emperor having no clothes, 
strutting around saying, ``Look at my dress.'' That story is familiar 
to every child, I expect.
  Less than 3 weeks after Mr. Clinton signed the crime bill, he 
directed the Senate majority leader to take up the nomination of Judge 
Lee Sarokin, the Clinton nominee to fill a vacancy on the U.S. Court of 
Appeals for the Third District. So here we go again.
  Mr. Sarokin is one of those judges with curious notions, to say the 
least. If he were a farmer, he would put a fox in charge of the hen 
house. One of his bright ideas was to release prisoners who are charged 
with violent crimes and put them right back on the streets where they 
committed mayhem before they were tried and convicted and sent to 
prison.
  In an article in the West Virginia Law Review, volume 90, summer of 
1988, Judge Sarokin declared that jailing those charged with violent 
crimes until tried, violates, he said, the presumption of innocence. If 
the judge is right about that, Madam President, law enforcement has 
been stood on its ear. Vicious criminals, such as those who bombed the 
World Trade Center, would be set free under Judge Sarokin's notion, set 
free to roam the streets or to escape trial, and left free to commit 
further deadly crimes.
  The Senate, I happily note for the Record, recognizes that pretrial 
detention is an essential public safety precaution. The crime bill, 
passed by the Senate almost a year ago, encouraged the States to have 
pretrial detention laws in place for characters charged with violent 
crimes.
  Judge Sarokin has likewise taken aim at mandatory sentencing, 
insisting, and I quote him, insisting that ``mandatory and uniform 
sentencing deprives judges of the right to grant mercy in those 
instances in which facts cry out for it.''
  Madam President, after reviewing Judge Sarokin's sympathies for 
criminals, Senators may wish to consider his judicial temperament.
  While serving on the Federal district court in New Jersey, Judge 
Sarokin presided over a case in which several tobacco companies were 
the defendants. And during the trial, Judge Sarokin's bias against the 
defendants was so blatant that the third circuit, the very same court 
for which President Clinton now wants Judge Sarokin to serve, took the 
extraordinary step of removing Judge Sarokin from the case. Even the 
New York Times applauded the Sarokin removal saying Sarokin has been 
``far out of line.'' And the New York Times further said Judge Sarokin 
had flunked an important test of credibility.
  The third circuit court has had other things to say about Judge 
Sarokin. The third circuit court lambasted him for his ``judicial 
usurpation of power'' and for ignoring ``fundamental concepts of due 
process'' for destroying the appearance of judicial impartiality and 
for ``superimposing his own view of what the law should be in the face 
of the Supreme Court's contrary precedent.''
  In fact, we have before us a nominee, nominated by President Clinton, 
of course, who has repeatedly downplayed or avoided the most 
controversial aspects of his record. During the Sarokin nomination by 
the Senate Judiciary Committee--and that was, I believe, on August 2--
one of the Senators asked him about his infamous decision that struck 
down regulations about a library that had adopted a policy of unruly 
behavior and hygiene. Judge Sarokin said in this case that this policy 
discriminated against the homeless. During his U.S. Senate confirmation 
hearing, Judge Sarokin insisted that the Court of Appeals had agreed 
with him. The fact is, however, the court had reversed him on every 
major first amendment issue.
  Judge Sarokin has demonstrated an unusual penchant for ignoring 
judicial precedent in reaching his own desired findings. His refusal to 
follow precedent was so blatant in one case that it prompted the Third 
Circuit Court of Appeals to remind Judge Sarokin that the court was not 
free ``to superimpose its own view on what the law should be in the 
face of the Supreme Court's contrary precedent.''
  There is more. The New Jersey Law Journal considers Judge Sarokin to 
be the most liberal and most often reversed Federal judge in New 
Jersey. So, Madam President, the question is apparent, obvious: Is this 
the kind of man Senators want to have sitting on the Court of Appeals 
for the Third Circuit, a judge who has set free a criminal because the 
criminal had used a false name to sign a waiver of his Miranda rights?
  There is a reason why the national Fraternal Order of Police and, in 
particular, the Fraternal Order of Police in the State of New Jersey, 
oppose Judge Sarokin's nomination. These law enforcement officers, 
speaking for countless other officers, describe Judge Sarokin as ``more 
of an advocate of social and personal causes than a judge.'' One New 
Jersey sheriff was so appalled that President Clinton had nominated 
Judge Sarokin for the third circuit that the sheriff wrote President 
Clinton a little letter. Let me quote from it. He said:

       Dear Mr. President: 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. 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.

  So, Madam President, I guess the bottom line is that even if Congress 
ever gets around to passing anything resembling the toughest crime bill 
in history, that still will make no difference whatsoever if the 
President insists on nominating a manifestly unsuitable judge like Lee 
Sarokin to one of the Nation's highest courts.
  Bear in mind, I say to the American people who might be looking at 
these proceedings on C-SPAN, that Judge Sarokin will have lifetime 
tenure. He will serve for life if he wants to on the U.S. Court of 
Appeals for the Third Circuit. And if he continues to conduct himself 
as he has as a district court judge, Mr. Sarokin's liberal philosophy 
will permeate his decisions, and he will not hesitate to abuse his 
judicial power to override the actions of elected representatives of 
the people.
  If the Senate confirms Judge Sarokin, nothing will have been done to 
remedy the cataclysmic problem of crime in America's streets. Indeed, 
this nominee, when he becomes a judge for the third circuit, based on 
his record, could do little more than exacerbate the problems that 
already exist.
  Therefore, Madam President, I cannot support this nomination. His 
confirmation, if it happens, will be among the many great mistakes made 
during this 103d Congress.
  I truly hope that it does not happen.
  I thank the Chair. I yield the floor.
  Mr. BROWN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. BROWN. Thank you, Madam President. I rise in opposition to Judge 
Sarokin's nomination.
  Madam President, the judge has been described as liberal in his 
philosophy and thinking. I think that is probably true. But that is not 
totally unique with regard to nominees and it should not be the only 
basis on which one makes a decision.
  I, like others, have voted for the administration's nominees 99 
percent of the time, not because I agreed with 99 percent of them. I do 
not. But it is the practice, and I think with some basis, to let the 
President exercise the powers of that office. But that does not mean 
and should not mean that the Senate's power of confirmation should be 
ignored or avoided. At least to this Member, we have a responsibility 
to review the nominees to see if they are capable, if they are honest, 
and if they are bright. In this case, at least in my view, Judge 
Sarokin satisfies all of those criteria. He has a bright, engaging 
personality. He is intellectually bright as well as socially bright. I 
found nothing that would indicate to me that he is anything less than 
honest, and he is quite clearly of capable intellect.
  But, Madam President, I have concerns about the nomination, and I am 
going to oppose the nomination because I think there are other 
standards for a judge as well, not simply whether you like them because 
he is quite likeable, and not simply because he has the intellectual 
potential because he clearly does. I am concerned about two things that 
I observed in his record, that I have confirmed by reviewing his cases 
and his opinions and that I discovered in questioning.
  Basic to a judge is whether or not that judge will follow the law. 
We, in the U.S. Senate, and in the U.S. Congress, expect the judges 
that are nominated to follow the law; that is, if the law is clear, the 
judge ought to follow it.
  I believe an objective review of the judge's opinions will indicate 
that he is reluctant to follow laws that he disagrees with; that is, 
the law can be clear, and, if he does not like it, he will ignore it. 
That is a serious charge, Madam President. But I intend to go through 
specific examples that suggest to me that Judge Sarokin has placed his 
own view above that of Congress and he is likely to ignore the law if 
he is confirmed.
  I think we have a right to expect that judges will enforce the law, 
will enforce the law that he likes, and will enforce the law that he 
does not like. Why? If we are offered protection under the law, it 
ought to apply to all Americans, not simply ones that a judge likes and 
not with those he does not like. It ought to apply to all Americans. It 
ought to be the kind of thing that citizens can count on. We have a 
right to expect that if there are protections in our Constitution or in 
our statutes that they apply to everyone and that you are not faced 
with your rights being lost if the judge does not like the color of 
your skin, does not like our occupation, or does not like your 
appearance. I believe an objective review of the cases that Judge 
Sarokin has ruled on indicates that he is unable to be objective in 
those areas. Those are serious charges. I want to be specific because I 
think the specific examples can be quite illustrative.
  The Rodriguez case involved a question of the admissibility of a 
statement made to police. Judge Sarokin created a new rule for 
voluntary waiver of rights. If this rule were a new area of law, it 
might be called for, but it is not. The judge acknowledged in his own 
opinion that the third circuit had ruled differently on the very point 
that was in question, and he flatly and openly disregarded the ruling 
of the third circuit.
  Let me repeat that because I think it is important. The judge 
acknowledged in his own opinion that the third circuit had a different 
view, the circuit court which governs his district court, and he 
declined to follow their guidelines. This is a clear example of the 
judge declining to follow the law in an attempt to further his own 
view.
  Here are the facts of the Rodriguez case. The FBI picked up a 
suspected thief. They brought him in for questioning. Ultimately, they 
obtained damning evidence. The accused challenged the statements he 
made to the FBI. What can you challenge your own admissions, your own 
statements on? You can challenge them on the basis that you did not 
make those statements.
  But, apparently, that was not the case here. This defendant 
challenged the statements on the basis they were not made voluntarily. 
Our Constitution protects us from involuntary statements. We do not 
want police beating a confession out of someone. The reason we do not 
is out of concern for the person but also out of concern for the 
validity of the statement. If it is made involuntarily, we, as a 
society, question the validity of what was said.
  The basis of Judge Sarokin's denying admissibility of these 
statements was that they were involuntary. Let us take a look at what 
Judge Sarokin says is involuntary.
  Here are the facts of how the FBI obtained the statement. I think, as 
all Members know, the FBI is not the bottom of the grade with regard to 
our police, but the top--the top in education, training, and 
performance. Here is what they did: The FBI spoke to the accused in 
Spanish, his own language. They went out of their way to speak in a 
foreign language to the accused so he would understand them. They 
provided a written description of his rights in English and Spanish. 
They not only spoke the language of his preference, but they also 
provided his rights, written in both languages. They asked if he wanted 
a lawyer. The accused said that he did not want a lawyer and he signed 
a form, written in his language, that explained his rights, and waived 
the right to counsel while making a statement.
  What is wrong with this? Well, the accused signed a false name. The 
accused gave the wrong name. He signed the form but gave the wrong 
name. Judge Sarokin said that this shows that his statement was 
involuntary. Let me repeat that. Because the accused lied about his 
identity, the judge ruled that the confession was involuntary. This is 
incredible. There is no allegation that the FBI did anything wrong. 
There is no allegation they beat him or tortured him or mislead him. 
There is no indication that they failed to give him the Miranda rights, 
or that they failed to speak in a language of his preference. There is 
no indication that they did not give his rights, both verbally and in 
writing. What the judge found is that because the accused lied, he was 
going to rule out the confession. This is not just liberal, this is 
saying that if you lie, you can undermine the admissibility a 
confession.
  Madam President, Judge Sarokin's analysis means that no matter what 
the police go through, no matter what procedures are followed, no 
matter how reasonable they are, no matter how voluntary the statement 
is, this judge is on the side of the accused.
  We expect that judges will be objective, that they will apply the 
law, and that they will render justice.
  It is this Senator's viewpoint that this judge departed from that 
standard. It is my view that this judge had his mind so set with regard 
to the outcome, he was willing to ignore the clear rulings of the third 
circuit, willing to ignore the law, and was willing to throw out the 
statement.
  The problem for Mr. Sarokin's analysis is that the third circuit, 
which Judge Sarokin is bound to follow, had already addressed this 
issue in another case. Madam President, that is right. This particular 
issue had already been addressed by the circuit. They had found that 
signing a false name was not relevant to finding voluntariness. In 
other words, the issue on which the judge ruled had already been 
reviewed by the court of the third circuit and it ruled the opposite 
way Judge Sarokin had ruled.
  He simply, consciously chose to ignore the precedent and ignore the 
law. Madam President, it is not just a question of whether you agree or 
disagree with the judge; it is a question of whether or not we should 
allow judges to ignore the law and decide cases based on their own 
personal viewpoint.
  Once we have judges that do that, we destroy the integrity of the 
system. It is not just a question of whether or not we agree with that 
judge, it is a question of whether that judge will ignore the law and 
the rulings and the precedents. Virtually every judge that comes before 
the Judiciary Committee is asked whether, and virtually everyone 
responds, they will follow the laws and the rules as they understand 
them.
  Here is a judge who has clearly not done that. Let me go on, because 
there are other specific examples. In the Blum case, Judge Sarokin 
first ruled to award attorney fees to the prevailing party, as well as 
a multiplier, as a penalty. The court of appeals suggested that Judge 
Sarokin reanalyze his approach and suggested, as the magistrate in the 
case did, that his award was unfounded. In other words, the judge made 
a ruling, and it was appealed and remanded back to his court with 
directions that the judge had been incorrect in the way he handled it.
  What did the judge do? Well, I think we would all expect the judge to 
follow the ruling of the superior court. Perhaps even some of us would 
have felt a bit sheepish about getting the rule wrong. Judge Sarokin 
did not do that. As a matter of fact, rather than follow the dictates 
of the superior court, Judge Sarokin mocked the Supreme Court and the 
court of appeals for their opinions on the subject. He mocked their 
rulings and did just the opposite. This approach to judging is sort of 
in your face. This is sort of like saying: I do not care what the 
Supreme Court says, or what the circuit court says, and I do not care 
that it has been remanded and reversed. I am going to do what I want in 
despite of all that.
  And did he show them. He not only mocked them in his opinion, but he 
turned around and did the opposite of what they suggested. He commented 
in his opinion on the attorney's fee multiplier, with mocking disregard 
of the court. He said, ``The Supreme Court has sent a Christmas card 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,'' referring to the rulings of the 
superior court. The court of appeals, in criticizing Judge Sarokin for 
failing to following precedent, said: ``The district court, without 
concealing its disapproval of the Supreme Court's decision and ours, 
proceeded in accordance with its own views.''
  The court of appeals went on to say, ``Neither the district court nor 
this court is free to superimpose its own views on what the law should 
be in the face of the Supreme Court's contrary precedent.'' I will 
repeat that because it describes the approach of Judge Sarokin. The 
circuit court of appeals in describing his approach said: ``Neither the 
district court nor this court is free to superimpose its own views on 
what the law should be in the face of the Supreme Court's contrary 
precedent.''
  Madam President, this is a judge who does not follow precedent, even 
though he sees it and hears it and understands it. He still places 
above everything else his own view.
  If this body confirms Judge Sarokin, they will be saying that even a 
judge who is unwilling to follow the law and the rulings of superior 
courts is going to be confirmed. Ask yourself: If you are required to 
go to court, if you are sued or you go to the courts to sue for 
justice, do you really want a judge that will ignore the law, ignore 
the precedents, ignore the rulings? That is what is at stake in this 
confirmation vote.
  In the Kreimer case, Judge Sarokin broke new ground in constitutional 
law, raising numerous constitutional issues. When the case was 
appealed, Judge Sarokin was not only reversed, he was reversed on 
almost every constitutional issue that he raised. That particular case 
involved a homeless man who harassed patrons of a public library.
  The library was responding to a problem of harassment that plagued 
the library and its patrons, denying them the ability to receive and 
enjoy information in accordance with an ordinance drafted to preserve 
order at the public library. So what we have here is a city that has a 
library, and they are trying to help people use it, and they draft an 
ordinance to protect the people using it. The judge found the ordinance 
unconstitutional. He said the city council's ordinance was 
unconstitutional. He found a number of ways to protect the rights of 
the homeless man. He held that the ordinance was vague, overbroad, and 
violated substantive due process and violated equal protection. The 
third circuit reversed him on all those counts. The third circuit 
simply acknowledged the obvious: A library may constitutionally impose 
order and quietude.
  Ask yourself what happens to your public library if it is 
unconstitutional for a library to try and preserve order and quietude. 
That makes no sense at all. It is not simply a matter of expressing 
concern for someone who is homeless or who has a problem. It is a 
matter of being so wrapped up in your own views that you do not 
consider the views of other people, and you do not consider the 
Constitution and the clear rulings of superior courts. The troubling 
part is that Judge Sarokin reached out so aggressively and widely to 
reach the result he wanted that he ignored existing law. Judge Sarokin 
equated imposing order in a public library with a violation of 
substantive due process. He equated imposing order in a public library 
with a violation of due process. It makes no sense.

  Using the Constitution, particularly the idea of substantive due 
process, to subvert the legislative process is a dangerous trend in our 
courts.
  How can this body complain if any court ignores our legislation if we 
confirm judges like Judge Sarokin? If Judge Sarokin can throw out those 
ordinances and the will of the people elected to represent this 
community, by saying it simply violates his idea of substantive due 
process, we threaten and undermine the whole concept of our 
representative democracy.
  Madam President, I do not want to go into too many cases, but I want 
to assure the Members if they will look at the cases and the rulings of 
the judge, they will be shocked by what he has said and done, and they 
will find numerous examples, not only of where he has been reversed, 
but examples of where he has ignored the plain meaning of the law.
  Here is one of the most striking examples. In the Vulcan Pioneers 
case, which Judge Sarokin ultimately vacated, he plainly disregarded 
the civil rights statute. Let me read it because there is no question 
that the judge knows what the statute says. It is printed in the 
opinion. It is title VII of the Civil Rights Act of 1964. Here is the 
statute which he has quoted:

       Notwithstanding any other provision of this subchapter, it 
     shall not be an unlawful employment practice for an employer 
     to apply different standards of compensation for different 
     terms, conditions or privileges of employment pursuant to a 
     bona fide seniority system.

  The statute goes on to point out that this applies unless the results 
show an intention to discriminate. In other words, it specifically 
mentions that it is all right to follow the seniority system. In the 
case, the judge does not find that this seniority system had the 
intention to discriminate. In other words, the one out that is in the 
statute, the judge found did not apply.
  So the judge is aware of the statute, he quotes the statute, he 
agrees that the intent of the statute is not to discriminate. And what 
does he do? He ignores the statute. Having cited it, having read it, 
having pointed out that the one out does not apply, the judge then 
proceeds to ignore it. Here are his words:

       The act does not insulate such systems from alteration as 
     an aspect of the relief available under this act.

  In other words, he can do what he wants to. That is indeed what he 
does. He casts aside the statute. He set a numerical racial goal even 
though there was no intent to discriminate and he found there was no 
intent to discriminate in place on a bona fide seniority system.
  Now, Madam President, what we are looking at here is a very clear 
statute and a very clear ruling and a judgment by the judge that, in 
spite of what this statute says, he is going to render the kind of 
opinion that he wants. No one in this Chamber should vote on this issue 
without knowing in advance that this judge is not going to follow the 
law if he does not like it and not going to follow the precedents if he 
does not like them.
  This is one Member who recognizes the President's ability to nominate 
people of his preference. I have voted for both of his Supreme Court 
nominees. I have voted for the vast majority of his nominees to other 
courts. But, Madam President, this is a judge who says in your face, 
``I am not going to follow the law, and I am not going to follow the 
precedents.''
  I think it is a mistake for either party, either Democrat or 
Republican or liberal or conservative, to put a judge on the bench who 
makes it so clear that he is not going to follow the law, and I think 
it is a disservice to the American people to have someone of that ilk 
serve on the bench.
  The voters of this country rightly believe that, regardless of what 
your party is, you ought to at least listen to them when they have a 
concern about legislation. I think they rightly believe that a judge in 
court ought to be objective enough to at least listen to what both 
sides of the case are before they make up their mind, and they ought to 
be at least reading the laws and trying to follow them. I think most 
Americans, regardless of their party affiliation or their philosophy, 
would expect that judges would follow the law and follow the rules 
whether they agreed with them or not.
  This nomination tests that. In the Haines case, Judge Sarokin was 
reversed for his ruling on the confidentiality of the material prepared 
in anticipation of litigation. The issue in the case was whether the 
information was to remain confidential.
  Madam President, you could rule either way on this. I assume there 
are precedents that deal with it. But what the judge did says a lot 
about the kind of judge Mr. Sarokin really is. When he issued his 
opinion, he quoted a portion of the confidential information that was 
in question. In other words, regardless of what the circuit court of 
appeals did, or other courts did, the confidentiality of the 
information had been destroyed.
  I suspect most Members will find it hard to believe what the judge 
did. There was a question about whether the information came under the 
attorney/client privilege and whether or not it should be kept 
confidential or whether it could be introduced in evidence or be made 
public. It was a question of confidentiality.
  Judge Sarokin ruled that it would be admissible. But, in his opinion, 
he quoted a significant portion of the language--not all of it--a 
portion of it, so it was made public. In other words, if he was wrong, 
the case would be lost anyway.
  What he said was, in effect, that he felt so strongly about the 
issue, he did not care whether it was wrong or right, he was going to 
make it public whether it was reversed on appeal or not. Ask yourself 
if this is impartial justice.
  Let me read to you what happened. The magistrate who sits on these 
matters and determines these matters reviewed the issue of privilege. 
He decided that the information should not be disclosed, that it came 
under the attorney/client privilege.
  The law allows Judge Sarokin to review the magistrate's ruling on 
disclosure to determine whether it was erroneous, given the facts that 
the magistrate considered, not if he was right or wrong, but whether it 
was erroneous under the facts considered. The judge reversed the 
magistrate and considered new evidence contrary to the established 
review standard. He believes so strongly in his view that he revealed 
parts of the privileged information in his opinion, thereby ending any 
effective appeal the party might have otherwise had.
  Ask yourself if you think that is just or fair. His opinion was so 
outrageous in the case that the appeals court took two extraordinary 
steps. They did not simply overrule him. Here is what they did.
  First, the court of appeals issued a writ of mandamus, which is 
reserved for exceptional cases, cases resulting in judicial usurpation 
of power; second, the court of appeals removed Judge Sarokin from the 
case.
  Madam President, this is not a normal judge. This is a judge who 
would prejudice the constitutional rights of the people before his 
court when he disagrees with existing law.
  When commenting on his removal, Judge Sarokin suggested that moneyed 
interests controlled the judiciary and that his own position 
represented the truth.
  Well, each of us who serve in this body are familiar with examples 
when we are convinced we represent the truth and the other side surely 
represents evil. But to overrule someone's constitutional rights and 
publicly make public the information in a way that someone is deprived 
of those rights is unfair. It is not only the wrong opinion, it is 
unfair to those people.
  Madam President, I want to just go through a couple of the things 
that the circuit court of appeals said about Judge Sarokin, and I want 
to give you the quotes. These are directly from the circuit court as 
they reversed Judge Sarokin in the Blum decision.
  They said four things.
  First:

       It appears the court proceeded to follow its own view of 
     the relevant market in ascertaining the availability of 
     adequate legal representation.

  Second: In making its determination on the risk associated with this 
individual case, the court failed to follow the clear direction, and 
here they are referring to the third circuit and the Supreme Court. The 
district court made no secret of its disagreement with the instructions 
it received on the issue.
  Third:

       In another departure from the task set for it, the district 
     court established a contingency multiplier for this 
     individual case rather than setting a standard which would be 
     applicable to future litigation within the same market.

  Fourth:

       Finally, and perhaps most importantly, although the 
     district court concluded that the plaintiffs had failed to 
     meet their burden of proof by not quantifying the contingency 
     premium, the court nevertheless relieved the plaintiff of the 
     burden of proof.

  Madam President I believe any Member who objectively reviews the 
cases that we have talked about, and many, many others, will conclude 
that this is not a judge that is able to protect people's rights when 
he disagrees with them.
  If justice in this country means the rule of law and not the whim of 
man, then Judge Sarokin should not be on the circuit court.
  But I hope Members, before they vote, be they liberal or 
conservative, be they a friend of Judge Sarokin or not, will give some 
thought to the precedent we set, because I believe with this vote and 
with this judge, the message goes forth that it does not matter what 
the law is, and it does not matter what the precedents are, if Judge 
Sarokin does not agree with you, you are in trouble.
  That is not the justice system that America prides itself on. It is 
not consistent with what we think the role of a judge is. And I would 
submit that this is not a judge this body ought to confirm.
  I yield the floor, Madam President.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER (Mr. Campell). The Senator from Utah is 
recognized.
  Mr. HATCH. Mr. President, at this particular point I would like to 
just put some letters in the Record.
  Take for instance, the August 6, 1994 letter from Robert J. Robbins, 
National Fraternal Order of Police, New Jersey Fraternal Order of 
Police, National Legislative Committee.

       To the Members of the United States 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.

  Or take this other letter from the Fraternal Order of Police, Newark 
Lodge, dated August 4.

       Dear Senator Hatch: I am writing to you at this time urging 
     you to reject Judge H. Lee Sarokin in his quest to become a 
     member of the Federal Court of Appeals.
       It has been reported that Judge Sarokin has the support of 
     law enforcement. Nothing could be further from the truth. The 
     Newark Fraternal Order of Police Lodge #12, is the largest 
     police organization in the city of Newark with over 1500 
     members and is the largest lodge in the State of New Jersey. 
     We vehemently oppose this liberal jurist's appointment to 
     such an important post.

  Then in the last paragraph, it says:

       There is a part of the new Crime Bill entitled ``Three 
     Strikes and you're in!'' Well, Judge Sarokin has already 
     given criminals more ``Strikes,'' at the citizens of New 
     Jersey than has Nolan Ryan in his Hall of Fame career! I 
     would urge you to truly show the citizens of this state and 
     country, that you are serious about crime in this country, 
     and to do this you must reject Judge Sarokin's appointment to 
     the Court of Appeals.

  Or this letter from the Law Enforcement Alliance of America.

       Dear Senator Hatch: The recent nomination of U.S. District 
     Court Judge H. Lee Sarokin to the United States Court of 
     Appeals to the Third Circuit by President Clinton is the 
     latest example of 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.

  Or the last two paragraphs:

       Clearly, criminals will have a friend on the bench of the 
     United States Court of Appeals if Judge Sarokin is confirmed.
       The 40,000-plus 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.

  Or this letter from the League of American Families, dated August 4; 
or the letter from Citizens Against Violent Crime, dated October 3 of 
this year; or the letter from the Organized Victims of Violent Crime, 
which is dated August 2 of this year; or Voices for Victims, Inc., 
dated August 9; or the New Jersey State Police Survivors of the 
Triangle. This is dated August 1. I will read just a couple of lines 
from this letter.

       My name is Donna Lamonaco. I am a mother of three, and a 
     widow of New Jersey State trooper Philip Lamonaco, who was 
     gunned down and murdered, four days before Christmas in 1981.
       The two murderers, members of a terrorist revolutionary 
     group, plotting to overthrow the United States Government, 
     were captured three and a half years later, and the last 
     trial ended in December of 1991, ten years after my husband's 
     death.
       I can't express the fear, trauma and emotion, myself and my 
     family went through, but we survived, partly because the 
     system worked.
       I understand President Clinton plans to nominate Judge H. 
     Lee Sarokin, to the 3rd circuit court of appeal, tomorrow. I 
     am asking you to help all the survivors of police families 
     and society in which we live, by opposing the nomination of 
     Judge Sarokin.

  Or this letter from Citizens for Law and Order, Inc., dated August 8, 
1994. I will just read one paragraph out of it. It is written to 
Senator Dole.

       Senator Dole, Judge Sarokins' views on crime and criminal 
     procedure are unusual and dangerous, and his confirmation to 
     sit on the U.S. Court of Appeals for the Third Circuit should 
     be rejected by the United States Senate.

  Finally, let me put one more in, from the County of Cumberland, James 
A. Forcinito, Sheriff, Office of the Sheriff, written to the President 
of the United States.

       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.

  One other sentence:

       As a Democrat, I'm astounded that you would make such a 
     nomination.

  This is a Democrat writing.

       As a Law Enforcement Officer, I'm disappointed, 
     disillusioned, and damned mad.

  To be honest with you, we have had a year of talking about the crime 
bill and about being tough on crime. And we see these kinds of nominees 
coming before the Senate who have a reputation of being very soft on 
crime--not just crime but a whole raft of other issues as well in the 
law. It is a matter of great concern to me because I think in this day 
and age we have to have judges who are fair, constitutionally sound, 
and are not activist apologizers for criminals and especially violent 
criminals who are killing our society as well as individual people.
  I ask unanimous consent that all of these letters be printed in the 
Record at this point.
  There being no objection, the letter were ordered to be printed in 
the Record, as follows:

                                              Organized Victims of


                                                Violent Crime,

                                      Madison, TN, August 2, 1994.
     Senator Orrin Hatch,
     Senate Judiciary Committee, Senate Office Building, 
         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 ``unsurpation 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 bases 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 socialists gaining a foothold in the highest 
     offices in our Government. They now control our courts.
       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 what ever certain high positions of such 
     great importance to our entire nation. America must one again 
     become the great free Republic she once was that was the envy 
     of the world. Until then, God help us all!!
       Please distribute a copy of this opposition to all members 
     of your committee.
           Sincerely,
                                                 Edith S. Hammons,
                                                        President.
                                  ____



                                     Voices for Victims, Inc.,

                                 Hackettstown, NJ, August 9, 1994.
     To: Senator Orrin Hatch.
     From: Richard C. Kramer.
       Voices For Victims Inc., is a support group formed in 1988 
     made up families of murder victims as well as other victims 
     of violent crime.
       As a citizen, I believe Judges should be impartial and open 
     to all arguments. I personally believe that Sarokin is 
     following his own twisted agenda, and has already placed 
     himself above the Supreme Court clearly indicating he is 
     intent on writing his own book of law. Giving him additional 
     powers affecting a larger population of the United States is 
     fightening, especially to those of us who are crime victims 
     and have suffered re-victimization by the system. We have had 
     enough with bleeding hearts concerned with the care and 
     feeding of murderers and rapists while we stand outside 
     looking in. Pleased hear us, don't let Sarokin in the U.S. 
     Court of Appeals, he is doing enough damage where he is.
                                  ____

                                          New Jersey State Police,


                                    Survivors of the Triangle,

                                    Belvidere, NJ, August 1, 1994.
     Senator Orrin Hatch,
     U.S. Senate
     Washington, DC.
       Dear Senator Hatch: My name is Donna Lamonaco, I am a 
     mother of three, and a widow of New Jersey State Trooper 
     Philip Lamonaco, who was gunned down and murdered, four days 
     before Christmas in 1981.
       The two murderers, members of a terrorists Revolutionary 
     group, plotting to overthrow the United States Government, 
     were captured three and a half years later, and the last 
     trial ended in December of 1991, ten years after my husband's 
     death.
       I can't express the fear, trauma and emotion, myself and my 
     family went through, but we survived, partly because the 
     system worked.
       I understand President Clinton plans to nominate Judge H. 
     Lee Sarokin, to the 3rd. circuit court of appeal, tomorrow. I 
     am asking you to help all the survivors of Police families 
     and society in which we live, by opposing the nomination of 
     Judge Sarokin.
       In 1976, a New Jersey police officer was killed, after 
     rehearing the case, Judge Sarokin released is murderer, just 
     five years ago.
       We do not need anyone filling the Judgeship position, who 
     allows Cop Killers to be released.
       Please help, by opposing the nomination of Judge Sarokin, 
     by President Clinton, to the 3rd. circuit court of appeal.
           Respectfully,
                                                Donna E. Lamonaco,
                                                        Secretary.
                                  ____

                                        Fratenral 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, August 4, 1994.
       Dear Senator Hatch: I am writing to you at this time urging 
     you to reject Judge H. Lee Sarokin in his quest to become a 
     member of the Federal Court of Appeals.
       It has been reported that Judge Sarokin has the support of 
     law enforcement. Nothing could be further from the truth! The 
     Newark Fraternal Order of Police Lodge #12 is the largest 
     police organization in the city of Newark with over 1500 
     members and is the largest lodge in the state of New Jersey. 
     We vehemently oppose this liberal jurist's appointment to 
     such an important post.
       Judge Sarokin is responsible for the freeing of a convicted 
     ``COP KILLER'', James Landano. Mr. Landano is the coward who 
     gunned down Newark Police Officer John Snow, on August 13, 
     1976. Judge Sarokin's decision has turned a career criminal 
     into a media celebrity. Although 18 years have passed since 
     his murder, the members of our FOP lodge have not forgotten 
     this vicious act and never will! We also will not forget who 
     has allowed this vermin back into society. Some other of 
     Judge Sarokin's decisions are so far out into ``Left Field'', 
     he is no longer even in the ``Ball Park'', but somewhere in 
     the parking lot. When someone in Law Enforcement is asked why 
     we have the crime problems that exist in the United States 
     today, they will tell you it is because of jurists such as 
     Mr. Sarokin.
       There is a part of the new ``Crime Bill'' entitled, ``Three 
     strikes and you're in!''. Well, Judge Sarokin has already 
     given criminals more ``Strikes'', at the citizens of New 
     Jersey than has Nolan Ryan in his Hall of Fame career! I 
     would urge you to truly show the citizens of this state and 
     country, that you are serious about crime in this country, 
     and to do this you must reject Judge Sarokin's appointment to 
     the Court of Appeals.
           Fraternally,
                                                     Jack McEntre,
                                                        President.
                                  ____

                                          Law Enforcement Alliance


                                             of America, Inc.,

                                  Falls Church, VA, July 26, 1994.
     Hon. Orrin G. Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch: The recent nomination of U.S. District 
     Judge H. Lee Sarokin to the United States Court of Appeals 
     for the Third Circuit by President Clinton is the latest 
     example of the liberalization of our criminal justice system 
     that began 30 years ago.
       Judge Sarokin has repeatedly made use of his judicial 
     position to promote social and personal issues and causes. He 
     has also made it plain that he will continue to do so if 
     confirmed to the United States Court of Appeals.
       Crime is the number one concern of the American public. 
     People are demanding real criminal justice reform--life 
     imprisonment for repeat offenders, greater involvement for 
     victims in the judicial process, the building of more prisons 
     to take violent criminals off our streets.
       Confirming Judge Sarkoin 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.
                                  ____



                                  League of American Families,

                                     Ringwood, NJ, August 4, 1994.
     Seator Hatch and Dole,
     U.S. Senate,
     Washington, DC.
       Gentlemen: The Senate is considering the nomination of H. 
     Lee Sarokin to the U.S. Court of Appeals for the Third 
     Circuit, I strongly urge you to oppose this nomination for 
     two reasons. First, as evidenced by his removal from the 
     tobacco liability case by the U.S. Court of Appeals, he lacks 
     the basic judicial temperament to be a judge. All Americans 
     should demand judges who will be fair and impartial, Judge 
     Sarokin has proven--even to the satisfaction of the liberal 
     New York Times--that he lacks these qualities. His excuse at 
     his hearing yesterday that, well, he is just 
     ``irrepressible'' at times, is ridiculous.
       Second, Judge Sarokin injects into his cases personal views 
     that will have a devastating effect on American families. You 
     have received information about his views on criminal justice 
     issues. His opposition to pre-trail 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.
                                  ____



                               Citizens Against Violent Crime,

                                  Charleston, SC, October 3, 1994.
     Hon. Orrin G. Hatch,
     Ranking Member, Senate Judicial Committee, Washington, DC.
       Dear Senator Hatch: Citizens Against Violent Crime (CAVE) 
     is a victim's advocacy group based in Charleston, SC and 
     Charlotte, NC. We number approximately 30,000 members in 
     North & South Carolina.
       We have followed the Judge Sarokin case very closely and 
     wish to express our intense wish that this judge not be 
     seated on the federal bench.
       CAVE has fought reviews of South Carolina circuit court 
     judges on past occasions. We know first hand the terrible 
     impact a bad judge can have on victims. Judge Sarokin is a 
     bad judge. Probably not a bad person, but definitely a bad 
     judge.
       CAVE has been fighting for everything Judge Sarokin 
     detests; increased pre-trial detention, mandatory sentences 
     and removal of all but minimal civil rights for convicted 
     felons. It is the job of our Congress and State Assemblies to 
     provide space for criminals--this issue is not, and cannot be 
     a factor used by the judge to sentence criminals.
       The confirmation of Judge Sarokin would be a gross step 
     backward for the criminal justice system.
           Sincerely,
                                                   James M. Gregg,
                                             Founder and Chairman.
                                  ____

                                                  Citizens for Law


                                              and Order, Inc.,

                                      Oakland, CA, August 8, 1994.
     Re Rejection of President Clinton's nomination of Judge H. 
         Lee Sarokin.
     Senator Bob Dole,
     U.S. Senate,
     Washington, DC.
       Dear Senator Dole: Citizens for Law and Order (CLO) 
     believes all citizens have the basic right to live in 
     physical safety in our communities, homes, schools and places 
     of business.
       Working within our nation's constitutional framework, CLO's 
     5,000 members seek to significantly decrease the incidence of 
     violent crime, restore victims and survivors to a central 
     position within the criminal justice system, eliminate 
     inequity and unfairness from our judicial process and reduce 
     further victimization.
       For the past two decades CLO has been a strong promoter of 
     hard-hitting anti-crime legislation, a severe critic of 
     overly lenient judges and district attorneys, and a caring 
     advocate for crime victims.
       Perhaps most disturbing, Judge Sarokin suggests that the 
     pre-trial and pre-conviction detention of those charged with 
     violent crimes violates the presumption of innocence. 
     Sarokin, ``Beware the Solutions,'' 90 West Virginia Law 
     Review at 1003, 1004, 1006 (1988).
       Judge Sarokin also opposes post-conviction incarceration 
     whenever a judge thinks a criminal ``might be'' innocent. He 
     was reversed four times by the U.S. Court of Appeal and the 
     U.S. Supreme Court during his effort to free cop-killer James 
     Landano. See Landano v. Rafferty, 782 F.Supp 986, 988 
     (D.N.J., 1992).
       Judge Sarokin opposes even a ``good faith'' exception to 
     the exclusionary rule. 90 West Virginia Law Review, note 1, 
     at 1006. Such a view is in direct conflict with the decisions 
     of the United States Supreme Court in the cases of United 
     States v. Leon, 468 U.S. 897 (1984) and Illinois v. Krull, 
     480 U.S. 340 (1987).
       Finally, Judge Sarokin opposes mandatory and uniform 
     sentencing. He believes these approaches to sentencing 
     deprive judges of the right to grant mercy. 90 West Virginia 
     Law Review, note 1, at 1005. Apparently, Judge Sarokin 
     prefers lenient treatment of criminals rather than punishment 
     that would protect public safety.
       Senator Dole, the members, directors and officers of 
     Citizens for Law and Order, Inc., are appalled at the soft on 
     crime philosophy exemplified by Judge Sarokin. We join with 
     other crime victims rights organizations as well as other 
     national law enforcement organizations to urge the United 
     States Senate to reject the nomination of Judge Sarokin.
           Sincerely,
                                                   Kevin Washburn,
                                                        President.
                                  ____

                                             County of Cumberland,


                                        Office of the Sheriff,

                                     Bridgeton, NJ, July 21, 1994.
     The President,
     The White House.
       Dear President: As a Sheriff from New Jersey with over 
     thirty-five years experience in 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.

  Mr. HATCH. Mr. President, when I look at this nomination I have mixed 
emotions because I like Judge Sarokin personally. That has nothing to 
do with it. He is clearly a nice person. I believe he is an honest man 
who almost anybody would like.
  The difference is that it is one thing to be a nice person. It is 
another thing to be a judicially activist judge who ignores what the 
law really says and does whatever his viscera tells him to do. That is 
not what we need in the Federal courts.
  I think it is the wrong time in our society's history to put a judge 
on the bench who is always looking for ways of letting the criminals 
off the hook, who is always looking for a way of finding some excuse 
for what the criminals have done, and always looking for a way to blame 
society instead of the criminals for what happens.
  So, while the President is talking about being tough on crime, at the 
same time he is putting judges in who are not tough on crime, who are 
known for being weak against criminals, and who are known for making 
excuses and blaming society rather than having people stand up and take 
individual responsibility for what they have done. I am concerned about 
it.
  We do not take on many judges. Look, if I was President of the United 
States I would not have recommended a lot of these judges that we have 
passed through the Senate this year. By the end of this congressional 
term, our subcommittee--and I am ranking member on this committee and I 
have worked hard to do this--will have passed through the Senate and 
confirmed well over 100 judges to the Federal bench, both the circuit 
courts of appeals and the district courts and two Supreme Court 
Justices.
  Most of them have gone through here without any difficulty at all, 
even though they may be more liberal than I like. The fact that Judge 
Sarokin is very liberal is not the issue. He can be as liberal as he 
wants as long as he interprets the laws as they were meant to be 
interpreted instead of applying his own ideas and enforcing his own 
ideas in contravention of the laws. That is one of the problems that we 
have here and it has been a big problem.
  So we have only taken on a few of these judges and this is one we 
just felt duty bound to take on, especially following the crime bill 
that we all worked so hard on, and especially in this year when every 
one of us know one of the major issues for the American people is: Are 
we going to get tough on these criminals?
  The answer to that is, ``I suppose, but.'' And the ``but'' is pretty 
big. Because if the President continues to send up people like this we 
might as well hang it up because this society is going to be crime-
ridden and we are going to see nothing but problems from this time on.
  I notice the distinguished Senator from Wyoming is here so I yield 
the floor.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. SIMPSON. Mr. President, I thank the Presiding Officer.
  I have listened to the debate by my good friends. They are indeed--
Senator Hatch, Senator Bradley--two people I greatly enjoy and enjoy 
working with in this remarkable Senate Chamber and in our committee 
efforts and in our work.
  I am here to support this judge. I have also advised Senator Hatch 
and my colleague I have visited with this man. I asked all the tough 
questions. I hope every one of us could have visited with this 
gentleman for 35 or 40 minutes, 1 hour, or 1\1/2\ hours. I did take 
some time. I believe Judge Sarokin has the education and the judicial 
experience to be a very capable appellate judge.
  He is a graduate of Dartmouth College and Harvard Law School. You 
have heard his credentials. He has served as a Federal district judge 
now for 15 years--that is quite a record.
  Prior to his appointment to the U.S. District Court in New Jersey, 
the judge practiced law as a trial lawyer. He was a part-time county 
counsel and he taught law at Rutgers University. He received a 
unanimous ``well-qualified'' rating from the American Bar Association.
  I am one who has often said that our decisions should not swing on 
the ABA. I certainly do not swing with the ABA. But their views are 
worthy of note, in any event. And that is the unanimous ``well-
qualified'' rating. Judge Sarokin's fellow jurists, his own peers, have 
shown their confidence in him by naming him twice as the chairman of 
the National Conference of Federal Judges.
  Yes, he is controversial, we know that through the debate. We have 
had a few of those kind. But, as I say, I have visited with him. He can 
and does listen. He has done some boneheaded decisions, and your loyal 
correspondent has done some boneheaded decisions in his life--myself. I 
know what that is. If we are just judged on our errors in life, for the 
times we miscue and misstep, it would not be much. So he has admitted 
what occurred in these cases; he has grown and matured on the bench. He 
is ready for this challenge. He will do well. He will do what the law 
requires and not allow his own human biases to control or intervene.
  He is also very fortunate to have Senator Bill Bradley on his side 
and as his friend. He, being a dear friend of many of us, has greatly 
aided the Senate passage which I think will take place.
  I am personally very satisfied that this man possesses the education, 
judicial experience, temperament to serve as a Federal appellate judge. 
Those are the things we should weigh, and I will vote to confirm the 
nomination.
  The PRESIDING OFFICER. Who seeks recognition?
  The Senator from Utah [Mr. Hatch] is recognized.
  Mr. HATCH. Mr. President, another case that illustrates Judge 
Sarokin's soft-on-crime liberal activism is the 1984 case of U.S. v. 
Rodriguez [Crim, No. 84-18 (D.N.J. 1984)]. In that case, Judge Sarokin 
found that the defendant, Rodriguez, had read a form advising him of 
his Miranda rights, had signed the part of the form waiving those 
rights, and was aware of those rights before he spoke with an FBI 
agent. Judge Sarokin nonetheless granted Rodriguez' motion to suppress 
evidence of his statements to the FBI agent. In other words, to keep 
his agreed-upon statements out of the record in the trial. In 
concluding that Rodriguez did not waive his Miranda rights and that his 
statement should therefore be deemed involuntary, Judge Sarokin relied 
heavily upon the fact that Rodriguez did not sign his own name to the 
waiver form, but instead signed the false name Lazaro Santana. 
According to Judge Sarokin,

       It does not strain logic to find the use of a name other 
     than one's own to be wholly inconsistent with a voluntary 
     waiver of rights: defendant might well have believed that by 
     using a false name he was not committing himself to anything.

  That indeed, strains logic to conclude that signing an alias is 
wholly inconsistent with a voluntary waiver: The far more natural 
conclusion is that Rodriguez's use of the alias may simply have been an 
effort to conceal his identity. But what is even more remarkable is 
that Judge Sarokin's ruling was directly contrary to controlling third 
circuit precedent, as Judge Sarokin himself recognized.
  At his hearing, Judge Sarokin claimed that the third circuit had held 
only that the use of a false name is ``certainly not dispositive'' but 
could well be relevant [91:15]. Such a claim is contrary to the reading 
of that precedent made by Judge Sarokin himself in Rodriguez. It also 
finds no support in the third circuit case. But as a result of Judge 
Sarokin's liberal judicial activism, critical evidence against a 
criminal suspect was suppressed. That means not allowed in.
  Mr. President, we do not need more judges who will handcuff the 
police in the war on crime. We do not need more judges who will create 
hypertechnical rules that free the guilty. We do not need more judges 
who will ignore existing precedent and twist laws to favor criminals. 
Liberal judicial activism has taken that approach for the past 30 
years, and the results have been all too predictable: soaring rates of 
murder, rape, and other violent crimes, and communities riddled with 
drugs and at the mercy of gangs of thugs. Enough is enough.
  I just gave you that one little case. It is just an illustration of 
the way this man is judicially an activist, somebody who ignores what 
the law really says and just does what he thinks is right. That is not 
good enough for me. I think when people are nominated and confirmed for 
lifetime appointments, with full pay upon retirement, that they ought 
to stand up and uphold the law, they ought to know what the role of 
judges is, and it is not to create laws from the bench.
  Frankly, I do not know how anybody could vote to sustain this person 
on the Third Circuit Court of Appeals, when you read these cases. True, 
we cannot go into all his cases. It would take forever on the floor. We 
are only bringing up a number of them. But these are significant and 
they are illustrative of what Judge Sarokin's judicial philosophy and 
judicial propensities really are. So I am really concerned, Mr. 
President. I am concerned about what is happening here.
  Mr. President, there are numerous other cases which illustrate Judge 
Sarokin's approach to the law that I think we all ought to be concerned 
about and which I think illustrate his propensity to pursue his own 
agenda and to defy precedent.
  The case of Haines versus Liggett Group--which involved a personal 
injury action against cigarette manufactures--is an all-to-telling 
example. [140 F.R.D. 681 (D.N.J. 1992), writ granted, 975 F.2d 81 (3rd 
Cir. 1992).] In this case, the plaintiff Haines sought discovery of 
certain documents that the defendant cigarette companies said were 
protected by the attorney-client privilege. Haines argued that even if 
the documents were within the scope of the attorney-client privilege, 
the crime-fraud exception applied and annulled the privilege. A 
magistrate judge determined that the documents were privileged and that 
the crime-fraud exception did not apply.

  Haines appealed the magistrate judge's order to Judge Sarokin. Judge 
Sarokin ordered the parties to supplement the record with materials 
from the record in a similar case, Cipollone, in which he was the trial 
judge. He then issued a ruling that the crime-fraud exception did apply 
and that Haines was entitled to discovery of the documents at issue.
  Three aspects of Judge Sarokin's opinion merit special attention:
  First: Judge Sarokin opened his opinion on this discovery dispute 
with this inflammatory prologue:

       In light of the current controversy surrounding breast 
     implants, one wonders when all industries will recognize 
     their obligation to voluntarily disclose risks from the use 
     of their products. All too often in the choice between the 
     physical health of consumers and the financial well-being of 
     business, concealment is chosen over disclosure, sales over 
     safety, and money over morality. Who are these persons who 
     knowingly and secretly decide to put the buying public at 
     risk solely for the purpose of making profits and who believe 
     that illness and death of consumers is an appropriate cost of 
     their prosperity!
       As the following facts disclose, despite some rising 
     pretenders, the tobacco industry may be the king of 
     concealment and disinformation.

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

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

  That is strong language from the appellate court, the court that 
Judge Sarokin is going to be elevated to if he is confirmed today.
  Finally, in what the third circuit described as ``a most agonizing 
aspect of this case,'' it then removed Judge Sarokin from the case on 
the ground that the prologue to his opinion on this preliminary 
discovery issue destroyed any appearance of impartiality. The court 
noted that the prologue stated accusations on the ultimate issue to be 
determined by a jury in the case: whether defendants ``conspired to 
withhold information concerning the dangers of tobacco use from the 
general public.'' It further noted that Judge Sarokin's inflammatory 
remarks were reported prominently in the press throughout the nation. 
[975 F.2d, at 97-98.]

  The third circuit's observations that Judge Sarokin's ruling amounted 
to a judicial usurpation of power, was contrary to our common law 
tradition, ignored fundamental concepts of due process, eviscerated the 
defendants' rights of appeal, and destroyed any appearance of 
impartiality scratched only the surface of Judge Sarokin's betrayal of 
the role of a judge in this litigation. Consider, for example, some of 
the many other respects in which Judge Sarokin's prologue was grossly 
inappropriate: What do his blanket assertions about the values of 
businessmen say about his ability to preside fairly in any dispute 
between an individual and a business? To whom is he referring as the 
other ``rising pretenders'' to the throne of ``concealment and 
disinformation''?
  Incidentally, at his confirmation hearing, Judge Sarokin ultimately 
made only a modest concession: ``I concede that the language was strong 
and maybe unduly strong; and if I could take it back, I probably 
would.'' [60:11-13] The fact of the matter is that Judge Sarokin could 
have taken it back: these were carefully composed written comments, not 
off-the-cuff oral remarks.
  Judge Sarokin also stated that ``I was also hoping that I could 
discourage the tobacco companies from continuing to conceal the risks 
of smoking and deny that they existed.'' [110:20-23] This statement 
vindicates the third circuit's concern that Judge Sarokin was 
broadcasting his opinion on the ultimate issue to be decided by the 
jury. It also shows that Judge Sarokin was pursuing an agenda rather 
than simply deciding the legal issue before him.
  Similarly, Judge Sarokin's reliance in Haines on his familiarity with 
the evidence in another case, Cipollone, is a flat admission of 
predisposition and bias. Judge Sarokin was, in his words, ``unique[ly] 
position[ed]'' to decide the issue only in the sense that he had 
already made up his mind.
  Perhaps the most troubling aspect of this whole case is the manner in 
which Judge Sarokin responded to the third circuit's order removing him 
from the case. In referring to this removal in a written opinion, Judge 
Sarokin flamboyantly declared: ``I fear for the independence of the 
judiciary if a powerful litigant can cause the removal of a judge for 
speaking the truth based upon the evidence, in forceful language that 
addresses the precise issues presented for determination.'' In short, 
Judge Sarokin not only voiced his disagreement with the ruling of the 
higher court, the court that he is about to ascend; he also cast 
aspersions on the independence and integrity of the third circuit 
judges by charging that a ``powerful litigant'' had ``caused'' them to 
rule as they did.
  Equally remarkably, unchastened by his well-earned scolding, Judge 
Sarokin personally accepted ``the C. Everett Koop Award for significant 
achievement toward creating a smokefree society.'' This award, from an 
organization called the New jersey Group Against Smoking Pollution, was 
given for the very comments that led to the third circuit's order 
removing him from the cigarette case. It is disturbing enough as an 
ethical matter that a judge would accept an award for an opinion in a 
particular case. It is beyond the pale that he would accept an award 
for a case in which he had already been found to have destroyed the 
appearance of impartiality, especially when the award is given for the 
very act that destroyed the appearance of impartiality.
  It is true that in removing him from Haines, the third circuit stated 
that Judge Sarokin ``is well known and respected for magnificent 
abilities and outstanding jurisprudential and judicial temperament.'' 
But in context, this can only be understood as sugarcoating a bitter 
pill.
  Mr. President, I notice the distinguished Senator from Texas is here 
in the Chamber, and so I will yield the floor at this time.
  The PRESIDING OFFICER. The Senator from Texas [Mr. Gramm] is 
recognized.
  Mr. GRAMM. Mr. President, I wish to thank the distinguished Senator 
from Utah for going through and documenting all of the cases involving 
Judge Sarokin.
  Let me say, Mr. President, in order to save the time of the Senate, 
the point I want to make in this debate is not directly related to this 
judge. It is related to the person who has nominated this judge.
  Whether you are talking about bums who are harassing people at the 
library or whether you are talking about brutal murderers who kill 
police officers, we have here a documented case of a judge who engages 
in a sort of a moral crusade to right society's wrongs by blaming 
society for all of the wrongs that exist and holding individuals 
responsible for virtually nothing they do, a person who seems to 
visualize himself as a lawmaker in robes. I think basically that the 
question is not why does this judge act as he does, with some of his 
decisions overturned by the very appellate court to which the President 
seeks to appoint him, but the question is why did the President appoint 
him in the first place?
  Now, let me go back and try to address each of these issues. I have 
always taken the position that it is not my job to judge people's basic 
political philosophy. I am a firm believer that elections have 
consequences, and when the American people elected Bill Clinton 
President, they knew or they should have known that he was going to 
appoint liberals to the Federal bench. So I have taken the position in 
thousands of nominations the President has made that I am not going to 
vote against somebody simply because I disagree with him. If I voted 
against the President's nominees simply because I disagree with him 
philosophically, very, very few people nominated by Bill Clinton would 
have gotten my vote.
  What I have tried to do is to set up what I believe is a reasonable 
test, and the test is not does this person's philosophy reflect my 
opinion, but the test is, is this an individual that the American 
people could have reasonably expected Bill Clinton, who was a candidate 
in 1992, to appoint?
  From anything that then Governor Clinton said in the campaign about 
crime and punishment, about the role of the courts, could the American 
people have expected him to appoint a person who has the record of the 
nominee before us? In his viewpoint as a judge, with a documented 
record of having cases overturned because of the injection of his 
values rather than the law into the case, is that person in the 
mainstream of liberal thought in our courts to such an extent that 
people who voted for Bill Clinton should have known at least that this 
is the kind of person who would have been appointed?
  I believe that Judge Sarokin fails on that test.
  I have also tried to set out a couple of other standards. One 
standard is, does this person have the temperament that goes with the 
job for which they are nominated? I believe the judge before us fails 
that test. I could repeat some of the things that Senator Hatch and 
others have said. We are all familiar with this now famous court 
decision because it has been written up in editorials all over the 
country, basically because it is such an outrageous decision.
  A person named Kreimer, who had inherited the nucleus of a small 
fortune, $340,000, which he had squandered, basically became a nuisance 
who hung out at the library, did not change his clothes, harassed 
people, taxpayers, who paid for the library. When women came into the 
library, he stalked them and followed them around and gawked at them, 
and people complained about it. After all, they paid for the library.
  Now, when people complained about it, when the case went to court, 
and when it ultimately found its way before our judge in question, here 
is what he said about it. And I think this is relevant because this 
shows a temperament that is not suited to someone who will be wearing a 
black robe and interpreting the law. Quite frankly, it is a temperament 
that perfectly suits many of the people who run for public office. The 
problem is this judge wants to make the law without the inconvenience 
of having to run for public office, to be credentialed to do it. So 
here is a case--and I do not think anybody disputes the facts. You have 
a bum who is hanging out at the public library harassing people who are 
trying to use the library in Morristown, NJ, people who paid for it. 
They come to the library. He harasses them. He follows women around. He 
sits and stares at them. He stinks. He does not change his clothes. So 
they throw him out of the library--perfectly reasonable behavior, it 
seems to me. In the America in which I grew up, they would have thrown 
him out of the library and they would have arrested him had he come 
back, and for good reason. Now, this case comes before this particular 
Federal judge, and here is what he says:

       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 revulsion may be of 
     our own making. If we wish to shield our eyes and nose from 
     the homeless, we should revoke their condition and not their 
     library card.

  Mr. President, here is the point. First of all, not that it is 
terribly relevant to this case, but this guy was not poor. This person 
inherited more money than most Americans accumulate in their lifetime. 
This person was not out giving speeches about his position on moral 
values or overthrowing the Government or some other activity protected 
by the first amendment. He was stalking and staring at women who had 
come to the library. He was harassing people who were trying to use a 
public asset that, after all, they had paid for with their taxes.
  What this particular judge basically said is that society should be 
dealing with this person's plight and that, in fact, he has every right 
to rub their noses in his problem; he has every right to deny them use 
of a facility that they have paid for. And what this judge is citing is 
not the law of nuisance or the right of people to extend their freedom 
as long as it does not interfere with anybody else's--what this judge 
is doing is failing to quote any law by which he forced this library to 
pay this person.
  What he is doing is stating his opinion. It is his opinion that 
society ought to do something about people who want to come to the 
library and harass tax-paying citizens.
  Mr. President, if this individual had decided to run for the Senate 
in New Jersey, I certainly would not have supported him. I would have 
voted against him, had I been voting in New Jersey. But it is a 
perfectly reasonable position to take if you want to run for the Senate 
and say I think smelly, offensive people who want to brutalize people 
at the library ought to be able to do it, and I am going to write a law 
that says they can do it. Personally, I think it would be a silly law. 
I would vote against it. And I cannot imagine anybody elected from New 
Jersey or anywhere else who would propose such a law.
  But the point is that is legitimate. It is not legitimate to put your 
hand on the Bible and swear to uphold, protect, and defend the 
Constitution and the laws of the country, and then go around moralizing 
about what society ought to be and what society ought to do, when your 
job is not to moralize, your job is not to make the law; your job is to 
interpret the law and to carry out the law.
  I could get into a bunch of other cases. Senator Hatch has gone 
through dozens of cases. Let me mention another one. I do not smoke; I 
have spent lots of time in my life trying to get my mom to quit 
smoking; I will not let her smoke in my house. She has always 
threatened when she goes out on the porch in the cold that she is going 
to call somebody from the newspaper and tell them my poor old mom is 
out in the cold because I am mean to her.
  I do not have a lot of truck with people who smoke; I do not like it; 
I cannot imagine being married to anybody who smokes. But it is a free 
country. People have a right to smoke.
  But if you read this judge's language, a judge who is supposed to be 
impartial, who is supposed to carry out the law and judge the facts, if 
you read what he says about smoking and about tobacco companies putting 
money over morality--who empowered a Federal judge to judge money or 
morality in American free enterprise?
  If someone was a Member of Congress, or a social critic, or an 
author, or an editorialist, or a bum at the library, they would have 
every right to be moralizing about whether tobacco companies ought to 
be trying to make money on tobacco, or whether it was moral to sell it. 
I mean those are kind of goofy views, in my opinion. I do not blame the 
tobacco company that my mother smokes. They are not making her smoke. 
She is choosing to do it. Of course, she says she has lived to be older 
doing it than I probably will live not doing it.
  But the point is, should we have Federal judges engaging in these 
sorts of moral pronouncements and in turn substituting them for the 
existing law of the land when making decisions?
  I could go on and talk about hoodlums who brutally murdered police 
officers--on and on--but I am not going to get into those details of 
the case for two reasons: One, I made my point and, number two, I am 
not in a position to judge the technicalities of the law here. That is 
not my point.
  My point is this: I am a strict constructionist. I believe if you 
want to make the law, you ought to run for Congress, you ought to 
submit your ideas to the American people. If you get elected, you ought 
to come up here and try to convince people to change the law. And if 
you are successful, you can change it. That is how this system works.
  I believe judges ought to be in the business of interpreting the 
laws, not making them. I knew when Bill Clinton was elected that he was 
going to appoint liberals and activists to the bench. I have supported 
a lot of them. I voted for a lot of them. I would say there probably 
are not 10 of them--maybe none of them--that I or a Republican in a 
similar position would have appointed. But I have always felt when 
people voted for Bill Clinton they knew, or they should have known, 
that he was going to appoint liberals to the bench who, to some degree 
or another, take the view that it is their job to fill in the blanks in 
the law, rather than asking Congress to do it.
  But I believe, Mr. President, in the case of this particular judge, 
that he steps way over the line of what anybody should expect from 
someone like Bill Clinton; he steps over the line of a judge that 
someone would expect the Bill Clinton, who ran for President in 1992, 
to appoint to the Federal bench.
  That is the point. The point is not that this is a bad person. My 
guess is that this is a wonderful person. My guess is that he is very 
much consumed by all these things. He might be the kind of guy I would 
like to live next door to. I might want him to be the father-in-law of 
my children. But the point is that a person who holds his views chose 
the wrong business. The person who holds his views ought not to be an 
appellate judge. In fact, many of his decisions have been reversed by 
the very appellate court that the President is now appointing him to, 
and not just reversals where they said we believe that while one could 
take the interpretation of the law that this particular judge has 
taken, that it is our opinion that his decision was wrong.
  The court to which he is being appointed today has said that his view 
was so outrageous, so far from the law, so out of bounds, that in 
unanimous rulings they have thrown out his opinion.
  So the concluding point I want to make is this: I am going to vote 
against this judge because Americans voting in 1992 could never have 
believed that the person who was running for President, named Bill 
Clinton, who was a new kind of Democrat, who believed in the death 
penalty, who wanted to be tough on crime--there was no reason that they 
would have believed that he was going to nominate this judge to be a 
Federal circuit judge. There was no way a rational person could have 
concluded that this nomination could have been expected or reasonable.
  Second, a person who wants to substitute their own values for the 
law, in my opinion, does not have the temperament to be a Federal 
judge. So I am going to vote against this nomination. But I want to 
make an important point.
  A great political philosopher said: In no way can you get a truer 
insight into the nature of a leader than to look at the people he 
surrounds himself with. If you want to know who somebody is, look at 
who they appoint, look at the people that they empower through their 
individual decisions. And I have to reflect, as I have on maybe six or 
seven other nominations--our Surgeon General being one, the Ambassador 
to Finland, who, for 25 years, argued against the very fundamental 
foundation of American capitalism and economic freedom, was another--I 
believe this nomination tells us something about our President, and I 
think it tells us that our President was not leveling with the American 
people when he ran for office in 1992.
  I think it tells us that our President was elected under false 
pretenses. I do not think you can look at this nomination and conclude 
that President Clinton is serious about grabbing violent criminals by 
the throat. I think when you combine this nomination with his crime 
bill, which overturned minimum mandatory sentencing for drug felons, 
that what we are seeing is a huge gulf between what he is telling the 
American people about getting tough on crime and what is being done.
  So I believe that the nomination of this judge is out of bounds. I 
think it is out of reason as to what people could expect. I do not 
challenge the fact that the American people elected Bill Clinton and 
that they knew or should have known that he was going to appoint 
liberals. But this person is not just a liberal. This judge is a person 
who wants to substitute his individual opinion, his moral values, his 
conception of the world and how it ought to be under the Constitution 
for the existing law of the land. And while that is a reasonable thing 
to do, and it is a high calling, it is not the job of a Federal judge. 
As a result, I do not believe this judge should be elevated to the 
appellate court. I think this is a bad mistake and, of course, he is 
going to be there for a long time.
  So I cannot support this nomination, and I think the nomination 
reflects on the person who made this appointment.
  I yield the floor.
  Mr. McCONNELL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky [Mr. McConnell], is 
recognized.
  Mr. McCONNELL. Mr. President, regrettably, I, too, must oppose this 
nomination. Although I believe the President should be accorded 
deference in the exercise of his constitutional power to nominate, this 
particular nominee, as previous speakers have pointed out, is 
incredibly flawed. I, for one, have serious concerns about Judge 
Sarokin's ability to be impartial, his tendency to legislate from the 
bench, and his lack of regard for judicial precedent.
  For example, he approached a personal injury case against tobacco 
companies with a direct bias against the defendants. In an early 
pretrial proceeding, before evidence had been introduced into the 
record, Judge Sarokin accused cigarette manufacturers of being ``the 
king of concealment and disinformation.'' From the bench, imagine that, 
Mr. President, from the bench, early in the case, the judge says that 
the tobacco companies, cigarette manufacturers, who were a party in the 
case before him, were the ``kings of concealment and disinformation.''
  His decision--to override the attorney-client privilege and allow 
certain evidence to be admitted as evidence of crime-fraud--was 
subsequently reversed by the third circuit, and Judge Sarokin was 
removed from the case. This is a fellow who is up for elevation to the 
next circuit. They removed him from the case for his obvious bias.
  The third circuit found extremely exceptional circumstances, 
``amounting to a judicial usurpation of power'' in removing him from 
the case. The third circuit said, exceptional circumstances ``amounting 
to a judicial usurpation of power.'' That is what they said in 
justifying his removal.
  The third circuit also found Judge Sarokin violated our ``common law 
tradition,'' with his ruling, in removing him, and that he violated the 
defendant's right to due process. Judge Sarokin let his bias against 
the defendants interfere with their right to a fair trial. He was so 
totally biased against one side in this case, said the higher court in 
removing him from the case, that he simply violated their right to a 
fair trial. Every litigant who walks into a courtroom, Mr. President, 
should be entitled to fairness. Parties should not have to face a judge 
who they know has a prejudice against them--in this case, openly stated 
as a prejudice against them in advance.
  Shortly after being disqualified from the case, after he was removed 
from the case for his obvious bias, Judge Sarokin accepted an award--
still on the bench--from an antismoking group for his significant 
achievement toward creating a smoke-free society. Here we have a judge 
accepting awards of this sort. It is troubling that any judge would 
accept any award for his role in a particular case. But that Judge 
Sarokin accepted this award in the face of the third circuit's finding 
that he lost all impartiality in the case is exceptionally disturbing.
  Judge Sarokin's lack of impartiality should disqualify him from being 
elevated to the third circuit. But this is not the only strike against 
this nominee. He also practices judicial activism. He legislates from 
the bench, imposing his view of right and wrong upon parties who appear 
in his courtroom.
  In one case, Judge Sarokin struck down a town library's rule against 
vagrants loitering in the library. He ruled on behalf of the vagrant, 
intent on disrupting and disturbing law-abiding citizens' use of the 
library. To achieve his result, the judge misused relevant precedent. 
In this case, the third circuit unanimously reversed the nominee.
  In another case, dealing with an award of attorneys' fees, Judge 
Sarokin showed disdain for a relevant Supreme Court decision. When the 
third circuit again reversed the nominee before us, the court found he 
had ``simply defied the Supreme Court's opinion * * *'' He just defined 
it. He did not like it. So he would not follow it.

  The third circuit also stated that Judge Sarokin followed his own 
views and he ``failed to follow the clear direction'' of both the third 
circuit and the Supreme Court.
  Finally, Mr. President, Judge Sarokin has shown excessive leniency in 
criminal cases.
  He is on record as opposing the detention of criminal defendants 
until they are finally convicted; he opposes mandatory minimums as well 
as uniform sentencing guidelines. He does not want to punish those who 
murder, rob, and rape. Instead, he would rather dispense shelter, 
provide job training and turn our prisons into therapy centers.
  The New Jersey Law Journal has called the nominee before us the most 
liberal, as well as the most reversed Federal judge in New Jersey. The 
Senate should not reward Judge Sarokin for his bias, for his judicial 
activism, for his substituting his own judgment for that of the 
political branches of Government, or for his disregard of precedent.
  Mr. President, I think this is a particularly flawed nomination. I 
hope the Senate will not approve him.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey [Mr. Bradley], is 
recognized.
  Mr. BRADLEY. Mr. President, I have listened all afternoon to the 
opponents of the nomination of Judge Sarokin. I would at this time like 
to make a few points in support of his nomination, given the context 
and content of what we have heard during the afternoon.
  The first thing that needs to be said is that Judge Sarokin has 
written over 2,000 opinions, and only actually a little less than 50 of 
those have been reversed and 2 of those have been reversed again by the 
Supreme Court and 2 have been reversed because of a change in the law 
after the opinion.
  There are those who say, well, 50 out of 2,000, that is about a 3 
percent reversal rate. That is pretty good. Others say, well, you know 
all of his opinions were not appealed. So the reversal rate might be 
higher.
  All I can say is that any case in any district court has the right of 
automatic appeal to the circuit, and if they were not appealed, then 
clearly both sides felt they were correct, which is one of the marks of 
a successful jurist. So of the over 2,000 opinions, less than 3 percent 
have been reversed.
  Now, is it possible out of 2,000 opinions to find 5, 6, 7, or 8 
isolated opinions to focus on and exaggerate? Sure it is possible for 
virtually any judge who sat as long as Judge Sarokin has on the 
district court since 1979.
  A lot has been made of the New Jersey Law Journal saying he was the 
most reversed judge in New Jersey, and when there is a major case; yet 
the New Jersey Law Journal has endorsed his ascension to the third 
circuit. The New Jersey Law Journal has strongly stated its support for 
him. And if you are going to take major as meaning controversial, then 
of course he has had some controversial cases. There is no question 
about that. When you have a controversial case which often involves 
issues of first impression, sometimes you will be reversed, and indeed 
he has, but only 3 percent out of over 2,000 opinions.
  There has been a point raised by an article by Mr. Jipping.
  I ask unanimous consent that a point-by-point rebuttal of his article 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


 prisoner's legal association (pla) v. roberson: harassment of prison 
                               paralegals

       What really happened?
       The PLA and several prisoners who served as paralegals 
     alleged that a prison official had harassed them in 
     retaliation for helping another prisoner file a claim against 
     him. They made claims under the Eighth and Fourteenth 
     Amendments. Defendant moved for summary judgment.
       Judge Sarokin ruled that verbal harassment, several denials 
     of meals, and several searches did not constitute cruel and 
     unusual punishment under the Eight Amendment.
       The paralegals also asserted a Fourteenth Amendment claim 
     on behalf of the prisoners to protect the prisoner's right of 
     access to the courts. Judge Sarokin denied defendant's motion 
     for summary judgment on this issue because there was no 
     evidence in the record indicating whether the prisoners had 
     access to the courts other than through the paralegals.
  Since the parties had not extensively addressed whether the 
paralegals could assert third-party standing to enforce the prisoner's 
rights, Judge Sarokin decided additional briefing was appropriate.
       Judge Sarokin made no ruling on the merits of the claim.
       Didn't Judge Sarokin search for a claim that the parties 
     hadn't raised and then appoint counsel to brief it?
       The plaintiff's primary claim for relief was their 
     Fourteenth Amendment claim. It would have been impossible for 
     Judge Sarokin to ignore it.
       The defendant, not Judge Sarokin, raised the standing issue 
     on which he requested further briefing.
       The defendant, not the plaintiffs, challenged the ability 
     of the PLA to proceed without an attorney. Based upon recent 
     Supreme Court precedent requiring that all ``associations'' 
     be represented by licensed counsel in court, Judge Sarokin 
     appointed counsel. Legally, the matter could not have 
     proceeded otherwise.
       Didn't Judge Sarokin create a protected status for prison 
     paralegals?
       In fact, Supreme Court precedent clearly establishes a 
     prisoner's right of effective access to the courts, either 
     through a law library or legal assistance. Furthermore, under 
     established Third Circuit law, otherwise permissible actions 
     by prison officials are unconstitutional if taken in reaction 
     to a prisoner exercising his constitutional right of access.
       In this case, Judge Sarokin recognized that if the 
     paralegals provided the only access to courts, then 
     preventing their assistance would prevent exercise of this 
     right.


 haines v. liggett: mandamus over discovery orders and reassignment of 
                           tobacco litigation

       What really happened?
       In two actions six years apart, the Third Circuit Court of 
     Appeals disagreed with Judge Sarokin's decisions in disputes 
     over discovery in the hard-fought litigation between the 
     tobacco companies and heirs of those killed by smoking. It 
     issued writs of mandamus to reverse the decisions.
       In the second action, the Third Circuit was also asked to 
     exercise its supervisory powers (not to issue a writ) to 
     reassign Judge Sarokin because the tobacco companies felt he 
     had evinced prejudice in the language of one of his orders. 
     The Court said that while it did ``not agree that [Judge 
     Sarokin] was incapable of discharging judicial duties free 
     from bias and prejudice,'' it would reassign the case in 
     order to preserve ``not only the reality but also the 
     appearance'' of neutrality.
       Isn't extremely unusual?
       Issuing a writ of mandamus, although not an everyday 
     occurrence, is not an earth-shattering event. The Court of 
     Appeals was required to issue writs of mandamus on the 
     discovery orders because such orders are not appealable 
     through the normal process. During the 15 years that Judge 
     Sarokin has been on the bench, the Third Circuit has issued 
     31 writs of mandamus to District Court judges [--Republicans 
     and Democrats, liberals and conservatives.] Even if Judge 
     Sarokin was wrong on the law--on these two motions out of 
     [hundreds] decided during the tobacco litigation--his actions 
     and the writs of mandamus issued by the Court of Appeals were 
     ``typical of trial court error common in the day-to-day 
     supervisory experience of an appellate court.'' (N.J. Law 
     Journal, 10/5/92)
       Reassignment is much less common, to be sure. But the same 
     year it took action against Judge Sarokin, the Third Circuit 
     reassigned Reagan appointee Judge Kelly (E.D.Pa.) from 
     asbestos litigation.
       Did Sarokin really `ignore the law' in the two discovery 
     motions on which he was reversed?
       In fact, both cases turned on the relatively technical 
     question of the standards and methods of review of 
     magistrates' decisions on discovery motions in particular 
     settings.
       In the earlier case, involving a protective order against 
     public disclosure of documents, Judge Sarokin had interpreted 
     a Supreme Court decision to require an expansive standard of 
     review because constitutional guarantees of free speech were 
     implicated. At least [two] Court[s] of Appeals had reached 
     the same conclusion. The Third Circuit, in a decision 
     announced two months after Judge Sarokin's decision, reached 
     the opposite conclusion. Thus, the law he is alleged to have 
     ignored did not exist at the time.
       In the later case, Judge Sarokin had, in reviewing the 
     magistrate's decision, considered evidence from a related 
     case. Although the Third Circuit, apparently addressing the 
     question for the first time, disagreed with this approach, 
     Judge Jack B. Weinstein (E.D.N.Y.) endorsed it (Brooklyn Law 
     Review 1993). Contrary to the allegations of Judge Sarokin's 
     critics, this was a close question, not a lawless seizure of 
     power.
       Judge Sarokin's critics have distorted the language of the 
     Third Circuit's opinion. References to ``judicial 
     usurpation'' are not used to describe Judge Sarokin but are 
     rather boilerplate references to Supreme Court precedents on 
     mandamus. The actual discussion of Judge Sarokin's actions 
     turn on close questions of law.
       Most importantly, Judge Sarokin was not reassigned because 
     of his rulings of law, on which reasonable judges can and 
     have disagreed, but because of the way he expressed himself.
       Don't Sarokin's remarks show a lack of judicial 
     temperament?
       In fact, in announcing its ``most agonizing'' decision to 
     re-assign Judge Sarokin, the Third Circuit stated 
     unequivocally that he ``is well known and respected for 
     magnificent abilities and outstanding jurisprudential and 
     judicial temperaments.'' Even a critic of his remarks in the 
     tobacco litigation has called Sarokin ``one of our best 
     judges.'' Prof. Monroe Freedman, Hofstra Law School (Brooklyn 
     Law Review 1993).
       The Court of Appeals did not hold that Judge Sarokin 
     abandoned ``even the appearance of impartiality,'' as Judge 
     Sarokin's critics have chosen to twist the opinion to say. 
     The Court stated outright that Sarokin could be fair in fact 
     and that only the appearance of impartiality was 
     implicated by his remarks.
       Was Sarokin's removal consistent with the law?
       Judge Sarokin's remarks, although perhaps ill-considered, 
     came after years of reviewing evidence in the tobacco 
     litigation. No one alleged that his views--whatever they 
     were--came from anything but the evidence. Five of the six 
     Circuit Courts that had considered the question--including 
     the Third Circuit, see Johnson v. Trueblood, 629 F.2d 287 
     (1980)--had clearly held that appearances of judicial bias 
     originating in judicial proceedings should not result in 
     removal. These courts recognized that in order to issue 
     rulings, a judge must develop views based upon the weight of 
     the evidence presented.
       Most commentators agreed that Judge Sarokin should not have 
     been removed under the prevailing legal standard:
       ``[T]he Haines opinion is troubling because it appears to 
     directly contradict the well-settled Third Circuit position . 
     . .. Judge Sarokin was making a determination regarding 
     whether the crime-fraud exception applied to certain 
     documents. The Third Circuit Court of Appeals did not address 
     how the judge was to make his determination without 
     addressing the issue of whether the tobacco companies had 
     engaged in concealment.'' Comment, Seton Hall Law Review 
     (1994).
       ``[T]he [Third Circuit's] decision . . . ignored both 
     governing statutory authority and the fundamental distinction 
     between judicial and extrajudicial bias . . .. [T]he court's 
     failure even to mention this issue was judicially dishonest . 
     . ..'' Prof. Paul C. Gluckow, Seton Hall Univ. Law School 
     (Seton Hall Law Review 1993).
       ``What Sarokin said was . . . intemperate, but I don't 
     think it warranted disqualification under the case law. The 
     distinction between information that is judicially acquired, 
     or not, is an important distinction.'' Prof. Jeffrey Stempel, 
     Brooklyn Law School (quoted in N.J. Law Journal, 9/14/92).
       ``I have found no other case where a judge has been 
     disqualified for an appearance of bias for remarks contained 
     in a judicial opinion, based on facts in the record, and 
     relating to the merits of the case.'' Prof. Bennett L. 
     Gershman, Pace Univ. Law School (N.Y. Law Journal, 9/21/92).
       In fact, the United States Supreme Court recognized this 
     distinction earlier this year in its decision in Litekey v. 
     United States, 114 S.Ct. 1147 (1994). The Court sided with 
     the majority of Circuit Courts who had held that although a 
     judge may often appear biased because of views developed from 
     hearing the evidence in judicial proceedings, removal is 
     required only when the judge ``display[s] a deep-seated 
     favoritism or antagonism that would make fair judgement 
     impossible.'' 114 S.Ct. at 1157. Since the Third Circuit 
     explicitly stated that it did not doubt Judge Sarokin's 
     actual ability to adjudicate the case impartially, its 
     decision in Haines v. Liggett could not survive the Supreme 
     Court's decision in Litekey.
       But why was Sarokin making these remarks?
       Judge Sarokin had to decide a technical question of 
     attorney-client privilege, the so-called crime-fraud 
     exception. He needed to determine whether documents otherwise 
     protected by the privilege had been generated as part of an 
     effort to conceal facts about tobacco from the public. So the 
     degree of deceptiveness of the tobacco companies was directly 
     relevant to the question presented, even though it was also 
     inevitably related to the issue to be decided at trial.
       Judge Sarokin, after considering the evidence, did his 
     duty. He found that the manufacturers had indeed engaged in 
     fraud and ordered them to disclose some (not all) of the 
     documents. His strong comments on the evils of concealing 
     health risks and the statement that the tobacco industry `may 
     be the king of concealment and disinformation' were within 
     the scope of the issue.'' Prof. John Leubsdorf, Rutgers Law 
     School (New York Times, 9/16/92).
       [H]is introductory remarks were made in the context of a 
     judicial determination finding that prima facie evidence 
     existed demonstrating that the tobacco industry defendants 
     had engaged in widespread fraud and deception. . . . Seen in 
     this context, Judge Sarokin's statement in the prologue of 
     his opinion . . . becomes interconnected with his judicial 
     evaluation of the proof. There is no more of an appearance of 
     bias here than in the case of a judge who concludes after a 
     trial that a witness has given false testimony, or who, after 
     reviewing a record, concludes that a party is guilty of a 
     cover-up.'' Prof. Bennett L. Gershman, Pace Univ. Law School 
     (N.Y. Law Journal, 9/21/92).
       ``Judge Sarokin was asked to rule on the viability of 
     plaintiffs' fraud theory, namely that the defendants knew 
     about, but concealed and, in fact, distorted the hazards of 
     smoking cigarettes. He was required to examine the facts 
     presented by both sides to determine whether it was 
     reasonable to conclude that the cigarette industry had in 
     fact attempted to mislead the public. Finding `sufficient 
     prima facie evidence of fraud in connection with the public 
     assurances made by defendants to declare the crime-fraud 
     exception shall apply in this matter' was an appropriate 
     exercise of judicial power.'' Judge Weinstein (Brooklyn Law 
     Review 1993).


                          landano v. rafferty

       What really happened?
       Landano was convicted in 1977 for murdering Newark police 
     officer John Snow during a robbery of a check-cashing 
     establishment. In 1985, he brought the first of two habeas 
     corpus proceedings in federal District Court. After an 
     evidentiary hearing, Judge Sarokin found that there was good 
     reason to believe some of the evidence against Landano was 
     not reliable. He nevertheless denied the petition because 
     principles of judicial restraint required him to defer to the 
     state court's findings.
       In 1989, Landano brought another habeas petition based on 
     new evidence that had not been available to the state court. 
     Judge Sarokin found that this new evidence indicated that the 
     prosecution had suppressed evidence that would have 
     exculpated Landano and therefore Sarokin granted the 
     petition. The Third Circuit reversed not because it disagreed 
     with Sarokin's evidentiary conclusions, but because Landano 
     had not exhausted his state remedies by bringing the new 
     evidence in the first instance to the attention of the state 
     court.
       In 1994, the Appellate Division of the New Jersey agreed 
     with Judge Sarokin on virtually every count and granted 
     Landano a new trial. State v. Landano, 637 A.2d 1270 (1994). 
     The court found as follows:
       ``First, the State suppressed evidence that its principal 
     identification witness [the proprietor of the check-cashing 
     shop] was under investigation for having ties with organized 
     crime . . . [and] on the very day his earlier tentative 
     identification of [Landano] became positive, he was 
     questioned about the possibility he had paid illegal 
     gratuities to Officer Snow.
       ``Second, the State suppressed evidence that its chief 
     witness [Landano's alleged accomplice] . . . had committed 
     numerous armed robberies similar to [this one and had 
     suppressed evidence that] the witness ``and his closest 
     associate had committed an earlier armed robbery in which the 
     gun used to kill Officer Snow had been fired.
       ``Third, the State suppressed evidence that the only 
     eyewitness to the shooting rejected [Landano's] photograph . 
     . .'' 637 A.2d at 1271.
       Wasn't Sarokin on some kind of crusade to free Landano?
       Far from engaging in a crusade, Judge Sarokin denied the 
     first petition even though he felt the evidence indicated a 
     strong possibility that Landano was innocent. The opportunity 
     to free a prisoner whom one believes to be innocent is the 
     strongest temptation to which a judge can be subjected, but 
     Sarokin said in his opinion that he could not do so ``without 
     violating the court's oath to follow existing precedent.'' 
     670 F.Supp. at 572.
       Sarokin's critics have mocked his statement that he 
     conducted ``an exhaustive search for grounds to grant the 
     writ,'' but in doing so for a prisoner he believed to have 
     been done an injustice, Judge Sarokin was upholding the 
     finest traditions of the federal courts.
       If Sarokin was engaged in a crusade, why did he wait four 
     years to re-open the case? Because he did not re-open it. In 
     fact, Landano brought a new petition, having worked on his 
     own to develop new evidence that the prosecution had 
     suppressed exculpatory evidence at the first trial.
       After concluding that the prosecution did suppress 
     evidence, a conclusion with which the state court ultimately 
     agreed, Judge Sarokin granted the second petition. He 
     concluded that Landano had effectively met the requirement 
     that he exhaust his state remedies because the substance of 
     his claim--that another man had done the killing and that the 
     state had suppressed evidence--had already been presented to 
     the state court.
       Two of the three judges on the Third Circuit panel 
     disagreed; the third, Judge Rosenn, agreed with Judge Sarokin 
     that ``[t]hough the newly discovered evidence . . . may be a 
     new development for the petitioner, it is not for the State. 
     It had possession of the information during the entire habeas 
     corpus proceedings in the state courts and during the initial 
     hearing before the United States District Court and failed to 
     fulfill its constitutional duty to divulge the evidence.'' 
     Judge Rosenn said that ``the State's case [against Landano], 
     erected upon a house of cards, has little, if any, credible 
     foundation to it.'' 897 F.2d at 685.
       Didn't the third circuit reverse Sarokin again when he 
     granted Landano bail?
       Sarokin did grant Landano federal bail while he pursued his 
     remedies in the state court system, a process that culminated 
     in the Appellate Division's ordering him a new trial. The 
     Third Circuit split 2 to 1 in reversing. Contrary to the 
     claims of some critics, the court said nothing to indicate 
     that it believed that Judge Sarokin was letting personal 
     bias displace his judicial duty. Rather, the Third Circuit 
     agreed with the fundamental proposition that there was 
     precedent for the authority of a federal court to grant 
     bail to a state prisoner under these circumstances. In 
     dissent, Judge Sciraca went further, agreeing with Judge 
     Sarokin that ``a finding of probable innocence'' warranted 
     Landano's bail.
       Didn't Sarokin Stretch FOIA to permit Landano access to FBI 
     files? And didn't the Supreme Court reverse him?
       When Landano asked for access to his FBI files, the 
     government took the position that it was entitled to what the 
     Supreme Court later characterized as a ``sweeping 
     presumption'' that all persons or entities giving information 
     to the FBI in the course of a criminal investigation were 
     confidential sources and not FOIAble. Judge Sarokin accepted 
     this presumption as to regular FBI informants, but said that 
     as to other named sources the government would have to make a 
     particularized showing. The Third Circuit affirmed.
       The Supreme Court, in U.S. Department of Justice v. 
     Landano, 113 S.Ct. 2014 (1993), agreed with Judge Sarokin's 
     essential holding that the government's position was 
     untenable. Speaking for a unanimous Court, Justice O'Connor 
     held that the government ``offers no persuasive evidence that 
     Congress intended for the Bureau to be able to satisfy its 
     burden in every instance simply by asserting that a source 
     communicated with the Bureau during the course of a criminal 
     investigation.'' 113 S.Ct. at 2023. The Supreme Court did go 
     on to say, however, that the government establish a 
     presumption in favor of nondisclosure of information in 
     ``more narrowly defined circumstances.'' Id. Using the very 
     example that Judge Sarokin had below, Justice O'Connor said 
     that ``it is reasonable to infer that paid informants 
     normally expect their cooperation with the FBI to be kept 
     confidential.'' Id.


  kreimer v. bureau of police for the town of morristown homeless man 
                         expelled from library

       What really happened?
       Judge Sarokin ruled that the Morristown library's policy 
     banning those with poor hygiene from the library infringed 
     upon established First Amendment rights.
       The Court of Appeals agreed with Judge Sarokin that the 
     strictest scrutiny would apply to the library's hygiene 
     regulation, because it effectively prevented some from 
     enjoying their First Amendment rights. And while it did 
     disagree with Judge Sarokin, finding the regulation survived 
     constitutional ``strict scrutiny'' (a test rarely passed), 
     its painstaking analysis reveals how close a question this 
     was.
       Didn't Judge Sarokin invent a new right?
       The Court of Appeals agreed fully with Judge Sarokin that 
     the First Amendment guarantees all citizens not only the 
     right to express their ideas to others, but also ``the right 
     to receive information and ideas'' from others. It described 
     a long line of Supreme Court case supporting this right as 
     essential to a democratic society. It called the public 
     library ``the quintessential locus of the receipt of 
     information,'' affirming Judge Sarokin's determination that 
     citizens enjoy a right of access to the public library. Thus, 
     Judge Sarokin in no way invented a new right.
       Didn't Judge Sarokin insist the library was discriminating 
     against Mr. Kreimer?
       Actually, the library freely admitted that its policy 
     (which also includes prohibitions on loitering and annoying 
     other patrons) was designed explicitly to restrict the access 
     of Mr. Kreimer and other homeless people to the library. It 
     created the policy specifically to respond to Mr. Kreimer. 
     The library's own statements, not Judge Sarokin's insistence, 
     established the discriminatory intent.
       What was the real problem with the regulations?
       Judge Sarokin found not that the library couldn't regulate 
     access to its facilities, but that the regulations, because 
     they were so vague, would allow library officials to 
     discriminate arbitrarily. He believed that the prohibitions 
     against hygiene falling below ``community standards'' and 
     against ``annoying'' behavior gave too much discretion to 
     library officials, allowing them to use the regulations as a 
     justification to expel those of whom they did not approve. A 
     similarly open-ended law may give a police officer discretion 
     to remove a speaker or a member of her audience solely 
     because that person annoyed others or because his or her 
     hygiene did not meet community standards.
       While the Court of Appeals did not agree that the 
     regulations were unconstitutionally vague, at least one 
     commentator, Jeremy Rabkin of Cornell University, has said 
     the Court of Appeals decision went ``against the trend.'' He 
     points out that the Supreme Court has struck down traditional 
     vagrancy laws as excessively vague and threatening to the 
     First Amendment right of assembly (William and Mary Law 
     Review 1992).
       Didn't Judge Sarokin fail to consider Mr. Kreimer's 
     behavior?
       The case wasn't really about Mr. Kreimer at all. Because 
     the library itself sought summary judgement only on whether 
     the regulations were valid ``on their face,'' Judge Sarokin 
     had no choice but to consider only the general application of 
     the regulations, regardless of Mr. Kreimer's conduct. The 
     Court of Appeals properly followed this same course.

  Mr. BRADLEY. Mr. President, there is a question raised, Is this one 
of those judges who is soft on crime? I would assert that Judge Sarokin 
on criminal justice issues falls within the broad mainstream of the 
Federal judiciary.
  Let me give you some examples that I think you have not heard on the 
floor today about Judge Sarokin. There has been talk about the Landano 
case, and there has been talk about the Rodriguez case, but you did not 
hear about Holland versus the Attorney General of New Jersey. Holland 
versus the Attorney General of New Jersey was in 1985 where a convicted 
armed robber sought a writ of habeas corpus, and Judge Sarokin denied 
the writ of habeas corpus to this convicted armed robber. He was 
reversed. He was reversed. We did not hear about that reversal. This is 
an example, one, of a tough judge.
  Take another reversal. In 1992, Judge Sarokin was reversed in U.S. 
versus Rodriguez for imposing excessive sentences on drug traffickers. 
He was reversed for imposing excessive sentences on drug traffickers. 
You did not hear about that reversal on the floor here today either.
  So, if we went down to take just a few others--I mean there are 2,000 
cases. You could pick many. But just take a couple. There is the case 
of U.S. versus Clark in 1991. It was an upward departure from the 
guidelines, an upward departure from the guidelines. People worry about 
him going downward. It was an upward departure from the guidelines to 
impose a life sentence for kidnapping a postal employee, and the life 
sentence was imposed because of the impact that kidnapping had on the 
victim's family, an upward sentence.
  Is he weak on crime? No. He is tough on crime.
  What about U.S. versus Vegoa, in 1985, where before there were any 
guidelines, in 1985, before there were any sentencing guidelines, he 
imposed a 30-year sentence for cocaine importation. Does that sound 
like that is a coddling judge? No.
  Or take U.S. versus Hernandez in 1988 where he denied a motion to 
suppress wiretap evidence even though the wiretap violated State law. 
Does that sound like a judge who is soft on crime? The answer is 
absolutely not.
  These are just a few examples out of the over 2,000 cases that 
clearly refute the contention that Judge Sarokin is soft on crime.
  What about pretrial detention? We heard that Judge Sarokin is a 
little soft on pretrial detention. Judge Sarokin has never stated he 
opposed pretrial detention. He has himself imposed pretrial detention 
in over 100 cases.
  So, what is all this talk about him not wanting pretrial detention? 
He has imposed it over 100 times since he has been sitting on the 
Federal bench.
  Or what about he has never stated that he opposes a good faith 
exception to the exclusionary rule, never. No one has put that in the 
Record today.
  He has never stated that he opposes mandatory or uniform sentences. 
Indeed, the only time that he has ever departed downward from 
sentencing guidelines was upon the final recommendation of a probation 
officer.
  So, Mr. President, I think you could easily argue that Judge Sarokin 
is in the mainstream of the Federal judiciary when it concerns criminal 
justice.
  Now, a lot of time has been devoted to the so-called Landano case on 
the floor today, and Senator Biden, the distinguished Senator from 
Delaware, the chairman of the committee, I thought did a very effective 
job of laying the context and also the evidence out for Judge Sarokin's 
actions, but just to recap quickly:
  An individual was murdered, a police officer, in 1976. In 1977, a 
James Landano was convicted in a New Jersey trial of that murder. In 
1985, 8 years later, Mr. Landano came before Judge Sarokin, filed a 
petition for a writ of habeas corpus. Judge Sarokin denied the petition 
because principles of judicial restraint required him to defer to the 
State court finding. Four years later, Landano came back with new 
evidence, new evidence. Judge Sarokin then issued a conditional writ.
  The third circuit reversed Judge Sarokin, not because it disagreed 
with his evidentiary conclusions--meaning that the facts had changed, 
that there was new evidence--but because Landano had not exhausted his 
State remedies by bringing the new evidence in the first instance to 
the attention of the State court. In other words, a procedural grounds 
for reversal.
  Well, it went back to the State court system and in February 1994, 
the appellate division of the New Jersey Superior Court overturned the 
New Jersey trial court's ruling and agreed with Judge Sarokin on 
virtually every count, on virtually every count.
  So in 1994, the New Jersey appellate division and the Supreme Court 
essentially agreed with what Judge Sarokin had stated in 1989. And the 
grounds were that the State suppressed evidence; that the only 
eyewitness to the shooting rejected Landano's photograph because the 
perpetrator had curlier hair than Landano. In other words, there was a 
photograph. The only eyewitness rejected that it was Landano. That was 
not shared with the defense. The State suppressed evidence that its 
chief witness, Alan Roller, Landano's alleged accomplice, had committed 
two armed robberies similar to the one that Landano was charged with 
and had also suppressed evidence that the witness and his closest 
associates had committed an earlier armed robbery in which the gun used 
to kill Officer Snow had been fired. That was not shared, either, with 
the defendant.
  Further, the State suppressed evidence that the principal 
identification witness, the proprietor of the check cashing shop, was 
under investigation at the time for having ties with organized crime 
and was suspected of having engaged in loan sharking and money 
laundering. And, further, on the very day that the witness identified 
Landano, he had been questioned about his involvement in possible 
illegal activities.
  Now, none of this was shared with the defense. These were the 
grounds, in addition to others, for the New Jersey appellate court, 
sustained by the Supreme Court, to overturn the trial court and order a 
new trial, which has not taken place. The prosecution has not brought 
the case.
  In addition, this is a very difficult and trying case because there 
was indeed an officer killed.
  I would like to have printed in the Record a letter from the 
individual who was the director of the Newark Police Department at the 
time, Hubert Williams, who is now the head of the Police Foundation in 
support of the Sarokin nomination. I think the letter itself speaks 
both of the anguish of seeing a fallen officer and the merit of Judge 
Sarokin's elevation to the Circuit Court.
  I would also like to have printed in the Record a letter of support 
from the NOBLE organization.
  I ask unanimous consent that these letters be printed in the Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                Representatives of Police Organizations


                                            Police Foundation,

                                  Washington, DC, October 4, 1994.
     Hon. Bill Bradley,
     U.S. Senate, Hart Building, Washington, DC.
       Dear Senator Bradley: I served as director of the Newark 
     Police Department for 11 years before coming to Washington, 
     D.C. as president of the Police Foundation. When Officer Snow 
     was killed in a bank holdup in Newark, New Jersey, I was the 
     director of the Newark Police Department. This killing sent 
     shock waves throughout our department.
       I've seen the judicial process unfold and I've watched the 
     attacks made on Judge Sarokin, who rendered a decision in 
     this matter that was not necessarily the one that we in law 
     enforcement wanted, but which was clearly based upon a 
     careful assessment and judicial application of the facts to 
     the law. This decision was ultimately upheld by the appellate 
     division of the New Jersey Superior Court and the New Jersey 
     Supreme court.
       It is my view that litmus tests for our judiciary must not 
     be predicated upon the outcome of a decision but on whether 
     or not the facts are applied to the law and a just and 
     reasonable determination is made regarding the question of 
     innocence or guilt. If we pursue any other course, the 
     justice that we all hold dear will perish in the process. We 
     cannot allow that. For these reasons, I think that based on 
     Judge Sarokin's record as a whole, he deserves elevation to 
     the appellate division. I understand the pain and anguish of 
     the members of my department who, as I do, still suffer from 
     the trauma associated with the brutal killing of one of our 
     brother officers. But our judicial system must function 
     beyond emotions. Reason and judicial temperament must be the 
     determining factors in the selection of jurists.
       Judge Sarokin has a long and distinguished career that 
     warrants his elevation to the appellate division. I strongly 
     endorse and urge his confirmation.
           Sincerely yours,
                                                  Hubert Williams,
                                                        President.
                                  ____

         National Organization of Black Law Enforcement 
           Executives,
                                                  October 4, 1994.
     Hon. Bill Bradley,
     Hart Building, Washington, DC.
       Dear Senator Bradley: The National Organization of Black 
     Law Enforcement Executives (NOBLE) comprises over 3,500 
     members, Chief Executive Officers of Law Enforcement Agencies 
     at federal, state, county and municipal levels, 
     administrators, command personnel and criminal justice 
     instructors and officials.
       As Executive Director of NOBLE, I am writing to articulate 
     our staunch support for the nomination of Judge H. Lee 
     Sarokin to the Third Circuit Court of New Jersey. We have 
     consulted with our members who are familiar with the work and 
     reputation of Judge Sarokin and the responses are unanimous. 
     He is very highly respected and admired by prudent, fair and 
     objective-minded officials and private citizens. He is noted 
     for his enlightened approach to judicial decisions that 
     crucially impact families and invidiauls of our distressed 
     communities. We appreciate his courage and willingness to 
     induce fairness and compassion into his decisions.
       Although we consider this fine Jurist's attitude toward 
     justice and fairness to be paramount, we are equally 
     impressed with his strong criminal justice and academic 
     background.
       We are very proudly urging confirmation of the Honorable 
     Judge H. Lee Sarokin to The United States Court of Appeals 
     for the Third Circuit.
           Sincerely,
     Ira Harris,
       Executive Director.
     Hubert T. Bell,
       National President.
                                  ____

                                                    July 22, 1994.
     Re Nomination of the Honorable H. Lee Sarokin for appointment 
         to the United States Court of Appeals For the Third 
         Circuit.

     Senator Joseph R. Biden,
     Russell Senate Office Building, Washington, DC.
       Dear Senator Biden: As Chairman of the Bergen County Police 
     Conference I am pleased to write you in support of the 
     nomination of Judge Sarokin for appointment to the United 
     States Court of Appeals for the Third Circuit. Our police 
     conference represents over 3,000 law enforcement officers. 
     His opinions in areas effecting our membership have been 
     examplary and well composed. He is, without question, a 
     jurist exhibiting the highest standards of integrity and 
     impartiality.
       We are privileged to have this opportunity to offer our 
     support for Judge Sarokin's nomination.
           Very truly yours,

                                           Michael J. Madonna,

                                                         Chairman,
                                  Bergen County Police Conference.
                                  ____

        New Jersey State Policemen's Benevolent Association, Inc.,
                                     Woodbridge, NJ, May 16, 1994.
     Re nomination of the Honorable H. Lee Sarokin for Appointment 
         to the United States Court of Appeals for the Third 
         Circuit.

     Hon. Joseph R. Biden,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Biden: I serve as President of the New Jersey 
     State Policemen's Benevolent Association, an organization 
     which represents 30,000 police officers in the State of New 
     Jersey. It is, beyond question, the largest law enforcement 
     organization in this State, and one of the largest in the 
     nation.
       I am pleased to support the nomination of United States 
     District Court Judge H. Lee Sarokin for appointment to the 
     United States Court of Appeals for the Third Circuit.
       Judge Sarokin has a reputation, and justly so, for faithful 
     and impartial application of the law. His integrity and 
     independence, his compassion and courage, have earned the 
     respect of all citizens of the State of New Jersey. There is 
     no question but that he would bring exceptional competence to 
     the Circuit.
       Thank you for your kind attention.
           Very truly yours,
                                                  Frank J. Ginesi,
                                                  State President.
                                  ____

         State Troopers Fraternal Association of New Jersey, Inc.,
                                       Manasquan, NJ, May 6, 1994.
     Re Honorable H. Lee Sarokin Nomination.

     Hon. Joseph R. Biden,
     Russell Senate Office Building, Washington, DC.
       Dear Senator Biden: As President of the State Troopers 
     Fraternal Association of New Jersey, an organization 
     representing 1665 State Troopers, it is my privilege and 
     pleasure to recommend the nomination of the Honorable H. Lee 
     Sarokin for appointment to the United States Court of Appeals 
     for the Third Circuit.
       During over 14 years of service as a District Court Judge, 
     Judge Sarokin has earned the respect of law enforcement for 
     his faithful and impartial application of the law as required 
     by the Constitution of the United States. Judge Sarokin is a 
     scholarly, knowledgeable and honest jurist, and his integrity 
     and impartiality have earned him the esteem of the law 
     enforcement community.
       Please use your valuable influence in support of Judge 
     Sarokin's nomination; his service on the Third Circuit Court 
     of Appeals is in the best interests of law enforcement and 
     will greatly benefit our great State and Nation in general. 
     Please feel free to contact me if you have any questions.
           Respectfully,
                                              Thomas J. Iskrzycki.
                                  ____

               State Troopers NCO Association of New Jersey, Inc.,


                                Bordentown, NJ, July 26, 1994.

     Re Nomination of the Honorable H. Lee Sarokin.

     Hon. Joseph R. Biden,
     Russell Senate Building, Washington, DC.
       Dear Senator Biden: I am president of the New Jersey State 
     Troopers Non-Commissioned Officers Association, an 
     organization which represents all New Jersey State Police 
     non-commissioned officers. In that capacity, I am often asked 
     to recommend individuals for various positions. This 
     recommendation is the easiest recommendation I have ever 
     made.
       The Honorable H. Lee Sarokin has been nominated for 
     appointment to the United States Court of Appeals for the 
     Third Circuit. I highly commend Judge Sarokin to you. He has 
     almost fifteen years service as a District Court Judge and 
     has earned the respect of the law enforcement community and 
     the federal Bar. Judge Sarokin's decisions are based on 
     knowledge, impartiality, honesty and concern for those who 
     appear before him.
       Again, I highly commend Judge Sarokin to you and request 
     you favorably view his nomination. Judge Sarokin will 
     vigorously and impartially apply all relevant laws, 
     regulations and rules.
           Most respectfully yours,
                                                  David E. Blaker.
                                  ____



                                            Police Foundation,

                                                     May 10, 1994.
     Hon. Joseph R. Biden, Jr.,
     Chairman Committee on the Judiciary, U.S. Senate, Dirksen 
         Senate Office Building, Washington, DC.
       Senator Biden: This is to express our strong support for 
     the nomination of Judge Lee Sarokin to the Third Circuit. He 
     is an outstanding jurist with a deep sense of commitment to 
     fairness and impartiality. We believe that his appointment 
     would be of benefit to society in general and to the law 
     enforcement community in particular. We urge his 
     confirmation.
           Sincerely,
                                                  Hubert Williams.
                                  ____


                         Former U.S. Attorneys

                                                 Latham & Watkins,


                                             Attorneys at Law,

                                      New York, NY, June 17, 1994.
     Re nomination of Honorable H. Lee Sarokin to the United 
         States Court of Appeals for the Third Circuit.

     Hon. Joseph R. Biden,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator: Please accept this letter in support of the 
     nomination of the United States District Court Judge H. Lee 
     Sarokin to the United States Court of Appeals for the Third 
     Circuit.
       Although I am currently a Partner at the above-named law 
     firm, for the past ten years I have been a federal 
     prosecutor, first in the Southern District of New York and 
     then in the District of New Jersey. From 1990 until my 
     resignation this past May, I was the United States Attorney 
     for the District of New Jersey, having been appointed by 
     President Bush.
       As United States Attorney I was thoroughly familiar with 
     Judge Sarokin's work and reputation as a United States 
     District Judge in New Jersey. In addition to significant 
     personal contact with Judge Sarokin on official business, I 
     was personally involved in supervising matters handled by the 
     United States Attorey's office in his court.
       I support Judge Sarokin's nomination to the Third Circuit 
     without reservation. Judge Sarokin's written opinions exhibit 
     genuine scholarship and lucid exposition. In presiding over 
     complicated and sometimes contentious criminal trials, Judge 
     Sarokin was patient, firm and fair. In my experience, Judge 
     Sarokin has interpreted and applied governing law faithfully. 
     By intellect, temperament and experience, H. Lee Sarokin is 
     highly qualified to sit on the United States Court of 
     Appeals.
       I would be delighted, of course, to render any further 
     assistance to the Judiciary Committee in its consideration of 
     this nomination.
           Respectfully submitted,
                                                 Michael Chertoff.
                                  ____

                                       Robinson, St. John & Wayne,


                                             Attorneys at Law,

                                          Newark, NJ, May 6, 1994.
     Hon. Joseph R. Biden,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Biden: I am writing to urge your Committee to 
     endorse the recent nomination of Judge H. Lee Sarokin to the 
     United States Court of Appeals for the Third Circuit.
       Since Judge Sarokin's appointment to the federal bench in 
     New Jersey in 1979, I have had occasion to appear before him 
     for motions, a trial and on numerous occasions as an 
     observer. These appearances were both as a private 
     practitioner and as U.S. Attorney for the District of New 
     Jersey between 1981 and 1985.
       Judge Sarokin is a highly intelligent and thoughtful 
     individual, who, in my experience, was always well prepared 
     and fair to both lawyers and litigants alike. However, his 
     greatest asset is probably the many written opinions which he 
     was authored over the years as a Federal Judge.
       Evidence of the quality of Judge Sarokin's opinions and the 
     manner in which he has conducted proceedings, is his rare 
     reversal rate by the Court of Appeals. Moreover, he has 
     handled a number of landmark cases in this District and 
     rendered some very significant decisions in vital areas of 
     the law. Through it all, he has always been courteous to 
     those before him.
       I fully recommend Judge Sarokin to your Committee and to 
     the United States Senate as a whole for confirmation to the 
     Third Circuit Court of Appeals.
           Sincerely,
                                                   W. Hunt Dumont.
                                  ____

                                                  Hannoch Weisman,


                                           Counsellors at Law,

                                       Roseland, NJ, May 10, 1994.
     Re The Honorable H. Lee Sarokin Judge, U.S. District Court 
         for the District of New Jersey.

     Hon. Joseph R. Biden,
     U.S. Senator, Russell Senate Office Building, Washington, DC.
       Dear Senator Biden: I write to unequivocally support the 
     nomination of The Honorable H. Lee Sarokin, Judge of the 
     United States District Court for the District of New Jersey, 
     to the United States Court of Appeals for the Third Circuit.
       I have had the privilege of knowing Judge Sarokin 
     throughout his tenure as a Judge for the United States 
     District Court for the District of New jersey, having myself 
     served as an Assistant United States Attorney (1972-1976); 
     Chief of the Department of Justice Organized Crime Strike 
     Force for the District of New Jersey (1975-1978); First 
     Assistant United States Attorney (1978-1980); and, finally, 
     as the United States Attorney for the District of New jersey 
     (1980-1981).
       Throughout the course of all of my appearances in whatever 
     capacity before Judge Sarokin, the vast majority of which 
     were on behalf of the United States, he has consistently 
     demonstrated an extraordinary ability to handle the most 
     difficult matters many of which were multi-defendant and of 
     high public visibility. On behalf of the United States I was 
     always confident that my client had received a complete, fair 
     and intelligent evaluation of the merits of its position and 
     ultimately that justice was done. From my observation of 
     other matters (primarily civil matters in which the United 
     States was not a party), I can attest that at all times Judge 
     Sarokin performed his duties in a similar fashion.
       I sum, there are very few words that I could muster to 
     describe the high regard in which Judge Sarokin is held by 
     all of my colleagues who have had the privilege of practicing 
     before him. He will be unquestionably an asset to an already 
     distinguished Circuit bench. I unequivocally support the 
     nomination and am ready to provide whatever further 
     information you or the other members of the Committee may 
     require.
           Respectfully yours,
                                             William W. Robertson.
                                  ____

                                                Stern & Greenberg,


                                            Counselors at Law,

                                        Roseland, NJ, May 9, 1994.
     Senator Joseph R. Biden,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Biden: I am in the unusual position of having 
     had Judge Sarokin appear before me when I was United States 
     District Judge, serving with him as a colleague on the 
     Federal Bench, and now having appeared before him as a lawyer 
     in the private practice of law.
       From each of the vantage points, I can say that he is an 
     individual of intelligence, compassion and a judicial 
     demeanor of the highest order. I firmly believe that his 
     nomination to the United States Court of Appeals for the 
     Third Circuit is not only deserving but one which will enrich 
     all of us who care about our Federal Courts.
       I write this letter in full support of the nomination of 
     Judge Sarokin.
           Respectfully submitted,
                                                 Herbert J. Stern.

                          Practicing Attorneys


                             New Jersey State Bar Association,

                                                New Brunswick, NJ.
     Hon. Joseph Biden,
     U.S. Senator, Russell Senate Office Building, Washington, DC.
       Dear Senator Biden: As a practicing New Jersey lawyer for 
     25 years and as the current President of the New Jersey State 
     Bar Association, I am pleased to support the decision of 
     Senator Bill Bradley to recommend the Honorable H. Lee 
     Sarokin to the Third Circuit Court of Appeals.
       Judge Sarokin distinguished himself as a practitioner and 
     citizen of this state and has a distinguished career on the 
     United States District Court for the District of New Jersey.
       He has the respect, admiration and affection of the 
     citizens of this state and, particularly, the lawyers of this 
     state, whom he has treated with respect and dignity.
       Judge Sarokin, in often difficult circumstances, has found 
     a way to lend dignity and respect to our system of justice.
       I am pleased to applaud the decision of Senator Bradley and 
     recommend Judge Sarokin for the Third Circuit Court of 
     Appeals and hope that you will support Judge Sarokin.
       If you have any questions, please call me.
           Respectfully,
                                                 Thomas R. Curtin,
                                                        President.
                                  ____

                                             Apruzzese, McDermott,


                                              Mastro & Murphy,

                                               Liberty Corner, NJ.
     Hon. Joseph R. Biden,
     Russell Senate Office Building, Washington, DC.
       Dear Senator Biden: My purpose in writing is to strongly 
     endorse the nomination of Judge H. Lee Sarokin to the United 
     States Court of Appeals for the Third Circuit. As past 
     president of the New Jersey State Bar Association, a former 
     member of the Board of Governors of the American Bar 
     Association, and a member of the American College of Trial 
     Lawyers, in all my experience there are few people with the 
     intellect, integrity, humor, demeanor and sense of fairness 
     who could better grace the bench than Judge Sarokin. He is 
     uniformly praised by lawyers everywhere for his decorum in 
     the courtroom and intellectual ability. I think the legal 
     system is enriched by having people of his caliber willing to 
     serve.
       I thoroughly endorse his nomination and solicit your strong 
     support for his nomination.
           Respectfully,
                                             Vincent J. Apruzzese.
                                  ____

                                                Eisenstat, Gabage,


                                              Berman & Furman,

                                                     Vineland, NJ.
     Senator Joseph R. Biden
     Russell Senate Office Building,
     Washington, DC.
       My Dear Senator Biden: I am aware that President William 
     Clinton has submitted the name of the Honorable H. Lee 
     Sarokin to be a Judge of the United States Court of Appeals 
     for the Third Circuit. I have known Judge Sarokin for a 
     number of years and have worked with him as a Past President 
     of the New Jersey State Bar Association. The elevation of 
     Judge Sarokin to the Third Circuit would be of great benefit 
     to the judiciary in this Circuit. Judge Sarokin has 
     demonstrated the highest level of intellectual and legal 
     experience, as well as the compassion necessary to elevate 
     that fine court to one of the preeminent courts in the 
     nation.
       If you desire additional information from me with respect 
     to this recommendation, please feel free to contact me.
           Very truly yours,
                                              Gerald M. Eisenstat.
                                  ____

                                       Greenberg Dauber & Epstein.


                                            Counsellor at Law,

                                         Newark, NJ, May 12, 1994.
     Hon. Joseph R. Biden,
     221 Russell Senate Office Building, Washington, DC.
       Dear Senator Biden: I am writing to you in support of the 
     nomination of Judge H. Lee Sarokin to the United States Court 
     of Appeals for the Third-Circuit. While I am not acquainted 
     with Judge Sarokin personally, as a practitioner before the 
     United States District Court for the District of New Jersey 
     and as the former Executive Assistant Attorney General for 
     the State of New Jersey, I am familiar with Judge Sarokin's 
     performance on the Bench.
       Judge Sarokin is a thoughtful, intelligent jurist of the 
     highest integrity and is someone who is known to address each 
     case with concern and dignity. During his tenure on the 
     District Court, he has had the occasion to deal with cases of 
     the utmost complexity and has handled them in an exemplary 
     fashion.
       I have no doubt that Judge Sarokin will be an excellent 
     complement to the fine Judges of the Third Circuit now 
     sitting, and I would hope that the Senate would move speedily 
     to confirm his nomination.
           Respectfully yours,
                                                 Edward J. Dauber.
                                  ____

              Zazzali, Zazzali, Fagella & Nowak, Attorneys at Law,
                                          Newark, NJ, May 9, 1994.
     Senator Joseph R. Biden,
     221 Russell Senate Office Building, Washington, DC.
       Dear Senator Biden: I had the privilege of meeting you in 
     New Jersey at Fariborz's Wedding and occasionally on the 
     MetroLiner coming up from Washington.
       I take this opportunity to respectfully recommend the 
     nomination of United States District Court Judge H. Lee 
     Sarokin to the United States Court of Appeals for the Third 
     Circuit.
       Rather than the usual cliched recommendation, please allow 
     me to make two observations.
       First, without putting too fine a point on it, Judge 
     Sarokin would be more than an outstanding Circuit Court 
     Judge. He would be an extraordinary addition to the Third 
     Circuit. That Court is a fine Circuit Court and, without in 
     any sense diminishing it, Judge Sarokin would bring 
     extraordinary talent, experience and perspective to the 
     Court. Indeed, I believe he would prove to be one of the 
     outstanding Circuit Judges in the nation within a short 
     period of time.
       Second, I come to this recommendation with a somewhat 
     unique point of view. A substantial part of my career has 
     been spent in law enforcement in the public sector including 
     service as an Assistant Exxex County Prosecutor; Chairman of 
     the New Jersey State Crime Commission, having been appointed 
     and reappointed to the Commission by Governor Kean; and 
     Attorney General of the State, having been appointed to that 
     position by Brendan Byrne. Further, as an attorney in private 
     practice, I have also been privileged to represent various 
     law enforcement associations. I am confident that Judge 
     Sarokin would be able to give appropriate consideration to 
     the interests of law enforcement, individual interests, and 
     most of all, the public interest, and that he would do so in 
     a balanced and reasoned way.
           Very truly yours,
                                                 James R. Zazzali.
                                  ____

                                      Livingston, NJ, May 6, 1994.
     Re Hon. H. Lee Sarokin.

     Hon. Joseph R. Biden,
     U.S. Senate,
     Washington, DC.
       Dear Senator Biden: As a member of the bar of New Jersey, I 
     wish to commend for your consideration as a judge of the 
     Court of Appeals for the Third Circuit, Judge H. Lee Sarokin, 
     now a district judge of New Jersey. I have known Judge 
     Sarokin for the last 29 years. My first employment as a 
     practitioner was as a part-time associate in the Newark firm 
     then known as Lasser, Lasser, Sarokin and Hochman. Lee 
     Sarokin was my preceptor, and to this day, I feel enriched by 
     the knowledge which he imparted to me.
       Through the years that followed my association with him, he 
     continued as one of New Jersey's most distinguished trial 
     lawyers and later brought those great skills to the bench, 
     where he has justifiably earned the plaudits and genuine 
     admiration not only of the bench and bar communities but 
     also, in my observation, of the public-at-large. I have been 
     an assistant Essex County prosecutor, a member of the New 
     Jersey Division of Criminal Justice and, most recently, a 
     member of the State Commission of Investigation. In those 
     positions as well as in my private practice, I have rarely 
     seen a jurist with greater intellectual capacity or with a 
     stronger sense of humanity as well as humility.
       Inevitably, a judge who is responsible to his oath and to 
     his sense of justice may render decisions that will be 
     controversial. I am sure that is true of Judge Sarokin, and 
     it would probably be unfortunate if it were not. But I am 
     convinced that he would be a most worthy member of the Court 
     of Appeals. I am proud to join my voice with those who urge 
     his confirmation. Thank you for your consideration of this 
     letter.
                                               Barry H. Evenchick,
                                                  Attorney at Law.
                                  ____

         Tompkins, McGuire & Wachenfeld, Counselors at Law,
                                         Newark, NJ, May 23, 1994.
     Hon. Joseph R. Biden,
     U.S. Senator,
     Washington, DC.
       Dear Senator: It is my understanding that Honorable H. Lee 
     Sarokin is under consideration for appointment to the United 
     States Court of Appeals for the Third Circuit. I have known 
     Judge Sarokin for many years and have always been impressed 
     with his dedication to his duties. I have appeared before 
     Judge Sarokin and have been treated at all times courteously 
     and professionally. He is well-prepared; he treats counsel 
     respectfully and he renders decisions rather expeditiously.
       As an attorney primarily involved in defense of civil 
     cases, I have the utmost respect for him. He articulates 
     positions clearly and he gives every consideration to 
     arguments that are presented to him. In my judgment he is a 
     fair-minded jurist who is entitled to every consideration for 
     the position of Judge of the United States Court of Appeals 
     for the Third Circuit. I endorse his candidacy and I trust 
     you will agree with this assessment.
           Respectfully submitted,
                                               William B. McGuire.
                                  ____

                                                  Medvin & Elberg,


                                             Attorneys at Law,

                                          Newark, NJ, May 6, 1994.
     Re Third Circuit nomination of Hon. H. Lee Sarokin.

     Senator Joseph R. Biden,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Biden: As a Past President of the New Jersey 
     affiliate of The Association of Trial Lawyers of America, it 
     is my distinct honor and privilege to write and 
     enthusiastically support the nomination of the Honorable H. 
     Lee Sarokin to the Third Circuit Court of Appeals. In my 
     opinion, President Clinton could not have nominated a finer 
     judge nor a finer human being to this most important 
     position.
       Judge Sarokin has been a District Court judge for nearly 
     twenty-five years. During that time, he has earned a 
     reputation for judicial excellence in every respect. His 
     intelligence, perceptiveness, impartiality, fairness, 
     temperament and respect that he shows to the lawyers and 
     litigants who appear before him are unparalleled.
       I have tried two significant cases to conclusion before 
     Judge Sarokin. The first, Rodriguez v. United States of 
     America, was a non-jury trial which lasted approximately four 
     weeks. The second matter, Cervantes v. St. Joseph's Hospital, 
     was a complicated medical malpractice trial which lasted 
     eight days and was tried to a jury. In both of these cases, 
     all parties left after the completion of their cases with the 
     distinct feeling that they had received a fair trial and were 
     treated with the utmost respect by the judge. He was 
     unfailingly courteous to and considerate of the lawyers, 
     litigants and witnesses who appeared before him, listened to 
     arguments on both sides, and rendered decisions that were 
     thoughtful, well reasoned, articulately expressed and, most 
     importantly, eminently fair.
       In short, I can think of no federal trial judge more 
     deserving of appointment to the Court of Appeals that H. Lee 
     Sarokin.
           Respectfully submitted,
                                                   Alan Y. Medvin.
                                  ____

         Lowenstein, Sandler, Kohl, Fisher & Boylan, Counsellors 
           at Law,
                                       Roseland, NJ, May 19, 1994.
     Re nomination of Judge Sarokin to third circuit.

     Hon. Joseph R. Biden,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Biden: I am writing this letter in both my 
     capacity as the General Counsel of the New Jersey NAACP and 
     as a litigator in the New Jersey federal courts during the 
     past 17 years. I am a 1976 graduate of the Harvard Law School 
     and the Harvard Business School. Following law school, I 
     served as a law clerk to Judge John J. Gibbons, on the United 
     States Court of Appeals for the Third Circuit. I have 
     participated in numerous cases in the federal courts of New 
     Jersey at both the trial and appellate levels. I am a Fellow 
     of the American College of Trial Lawyers.
       I highly recommend the nomination of United States District 
     Court Judge H. Lee Sarokin to the United States Court of 
     Appeals for the Third Circuit. I have personally appeared 
     before Judge Sarokin on a number of occasions and I have also 
     observed his performance in matters where I had no personal 
     involvement. In my opinion he is one of the best trial judges 
     in the United States: he is smart, he works extraordinarily 
     hard, and he has a judicial demeanor that communicates a 
     sense of fairness. He also clearly loves the law, and his 
     many published opinions are a testament to his ability to 
     grapple with highly difficult issues.
       In my experience Judge Sarokin comes to each case with a 
     clean slate and no predisposition beyond the fact that his 
     job is to be fair to the litigants and to apply the law to 
     the facts. Ultimately, what all litigants and lawyers want 
     from judges at both the trial and appellate level is that 
     they have the intelligence to truly understand the issues, 
     the willingness and stamina to work hard, a basic sense of 
     fairness and the ability to communicate both orally and in 
     writing the reasoning behind their opinions. Judge Sarokin 
     has all of these qualities in abundance, and I urge on behalf 
     of the New Jersey NAACP and myself personally that you 
     approve his nomination.
           Very truly yours,
                                            Theodore V. Wells, Jr.
                                  ____

                                       Robinson, St. John & Wayne,


                                             Attorneys at Law,

                                          Newark, NJ, May 6, 1994.
     Senator Joseph R. Biden,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Biden: I urge your Committee to endorse the 
     nomination of Judge H. Lee Sarokin to the United States Court 
     of Appeals for the Third Circuit.
       Judge Sarokin has been sitting as a District Court Judge in 
     Newark, New Jersey for nearly 15 years. He is highly 
     qualified. My litigation practice is principally in the 
     Federal Courts in New Jersey where I have appeared hundreds 
     of times in the past 35 years before all of our Federal 
     Judges. Judge Sarokin, in my opinion, ranks at the top. His 
     judicial qualities include a keen intellect, an even temper, 
     and fairness to litigants.
       Evidence of Judge Sarokin's intellectual ability is that 
     his reversal rate in the Court of Appeals is unusually low; 
     only a few of his appealed decisions have been reversed and 
     many of those decisions have been in the controversial areas 
     of criminal habeas corpus, civil product liability and 
     difficult tax questions. Through all these judicial travails, 
     he has, as I have personally experienced and know by his 
     reputation, never been discourteous to any litigant or 
     lawyer.
       The President and Judge Sarokin's sponsoring Senators are 
     to be praised for their choice. I hope your Committee quickly 
     acts so that this important vacancy can be filled without any 
     more delay.
           Sincerely,
                                               Donald A. Robinson.
                                  ____

                                                Poplar & Eastlack,


                                             Attorneys at Law,

                                                 Turnersville, NJ.
     Senator Joseph R. Biden,
     Russell Senate Office Building,
     Washington, DC.
     Re: The Hon. H. Lee Sarokin.
       Dear Sen. Biden: I have for many years been an active 
     practicing attorney in the Federal Court for the District of 
     New Jersey.
       I am writing to recommend and encourage the nomination and 
     Senatorial approval of the Hon. H. Lee Sarokin for Judge to 
     the United States Court of Appeals for the Third Circuit.
       Judge Sarokin has served with distinction as a Federal 
     District Court Judge presiding over both civil and criminal 
     matters. He is hardworking, scholarly and fair to all who 
     appear before him. Even in difficult cases he unhesitatingly 
     and faithfully relies on and applies applicable precedents 
     and statutes.
       The public and the judiciary will be well served by Judge 
     Sarokin's ascension to the Court of Appeals.
       I will be available at any time to you or your staff if you 
     have any further questions.
           Very truly yours,
                                                   Carl D. Poplar,
                                                          Esquire.
                                  ____

                                                Stern & Greenberg,


                                            Counselors at Law,

                                        Roseland, NJ, May 4, 1994.
     Senator Joseph R. Biden,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Biden: I write in support of the nomination of 
     Judge Sarokin. I have known Judge Sarokin for more than 
     twenty years as an adversary, a fellow member of the Bar and 
     a United States District Court Judge.
       I remember well when he first went on the bench how excited 
     and happy he was to achieve this position. He has never lost 
     that fervor for the fair and impartial administration of 
     justice.
       I would hope that his nomination to the United States Court 
     of Appeals for the Third Circuit is swiftly approved by the 
     United States Senate.
           Respectfully submitted,
                                             Stephen M. Greenberg.
                                  ____


                             Law Professors


                                              Yale Law School,

                                      New Haven, CT, June 9, 1994.
     Re the Honorable H. Lee Sarokin.
     Senator Joseph R. Biden, Jr.,
     Senator Orrin G. Hatch,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senators Biden and Hatch: I am writing in support of 
     the nomination of H. Lee Sarokin for the Third Circuit Court 
     of Appeals. My support of Judge Sarokin's nomination might be 
     regarded as unusual because my last participation in a Senate 
     confirmation hearing was my appearance before your Committee 
     in 1987 in support of the nomination of Robert H. Bork to the 
     Supreme Court. Moreover, I am a registered Republican, regard 
     myself as a conservative, and believe deeply in what are 
     regarded as conservative ideals. As is well known, the views 
     and approaches to the law of Judge Sarokin and Judge Bork 
     differ very substantially, and Judge Sarokin could not fairly 
     be regarded as conservative.
       My support of Judge Sarokin, however, transcends these 
     various political differences which, I believe, in the larger 
     scope of matters are of lesser relevance for the evaluation 
     of the abilities of a judge. I have known and observed Judge 
     Sarokin for many years. Judge Sarokin has attended several 
     academic conferences at Yale Law School (where he was always 
     among the most brilliant of participants, including the 
     academic participants). I have read many of Judge Sarokin's 
     writings (he is clearly among the very few of the federal 
     judiciary to produce articles of truly high distinction. I 
     have attended many of his talks and addresses. I have heard a 
     great deal about him from many of my students who have served 
     as his clerks (as an example of a different form of market 
     evaluation, his clerkships are among the most highly sought 
     after by Yale Law students). In addition, I have worked 
     closely with him over the past five years in my capacity as 
     Special Master in the class action litigation, McLendon v. 
     The Continental Group, Inc. through these many contacts over 
     many years, I believe that I know Judge Sarokin well.
       Despite our different political views, I believe strongly 
     that Judge Sarokin will prove a distinguished addition to the 
     Third Circuit. Judge Sarokin is among the very first rank of 
     federal judges. Judge Sarokin is intellectually and 
     analytically brilliant. I have observed on many occasions his 
     extraordinary ability to see to the heart of a legal issue 
     far better and more thoroughly than the lawyers who after 
     lengthy preparation have presented the issue to him. His most 
     important quality, however, is what I would call a deep 
     judiciousness, consisting of a combination of seriousness, a 
     commitment to making sense of the law, and a devotion above 
     all else to fair treatment of the parties to litigation.
       These qualities in a judge are far more important to the 
     country than a judge's political views or inclinations. 
     Qualities of this nature transcend politics in the best 
     tradition of the judiciary because, as implemented in 
     decisionmaking, they provide assurance to all parties that 
     their arguments have been heard, have been carefully 
     considered, and that the resulting outcome is fair to all. 
     Judge Sarokin has heard many important and controversial 
     cases; in some of these cases, his outspokenness is well 
     known. However the press may characterize his opinions, from 
     my own readings of them and from my experience viewing Judge 
     Sarokin in action, I have not the slightest doubt that his 
     judgments uniformly, without exception, are fair and 
     reasonable given the evidence put before him. Judge Sarokin's 
     opinion in the McLendon case (on which I have worked) is 
     perhaps the strongest and most outspoken opinion that he has 
     ever written. From my detailed knowledge of the facts of the 
     case, his outspokenness was merited entirely and can easily 
     be defended to conservative and liberal alike as a fair and 
     just evaluation of the evidence.
       There are many fine and able members of the Courts of 
     Appeals, many of whom I know well and many of whom are 
     regarded as conservative (including, for example, Judges 
     Buckley, Ginsburg and Williams of the D.C. Circuit, Judge 
     Winter of the Second Circuit, Judge Boggs of the Sixth 
     Circuit, Judges Posner and Easterbrook of the Seventh 
     Circuit, and Judge Kosinsky of the Ninth Circuit, among 
     others). President Clinton has nominated many other able 
     persons to the Courts of Appeal (including my colleague, Dean 
     of the Yale Law School, Guido Calabresi to the Second 
     Circuit). Judge H. Lee Sarokin is the equal of all of these 
     judges, and will prove to be among this country's most 
     distinguished judicial appointments of many decades.
       Should you find it helpful, I would be honored to be given 
     the opportunity to expand and defend these views in 
     appearance before your Committee.
           Yours sincerely,
                                                 George L. Priest.
                                  ____



                                           Harvard Law School,

                                     Cambridge, MA, June 23, 1994.
     Senator Joseph R. Biden,
     Russell Senate Office Building, Washington, DC.
       Dear Senator Biden: I write this letter in support of the 
     nomination of H. Lee Sarokin who currently sits on the 
     Federal District Court of New Jersey, for a position on the 
     United States Court of Appeals for the Third Circuit. Given 
     his outstanding accomplishments over the last four decades, I 
     am confident that Judge Sarokin will be a valuable asset to 
     the Third Circuit and provide many lasting contributions.
       I have known Judge Sarokin for over a decade. While many 
     applaud him for his outstanding career as a litigator for 
     twenty-five years, as well as his strikingly comprehensible 
     and comprehensive opinions as a member of the United States 
     District Court for the state of New Jersey, I have seen him 
     in a very different capacity. For most of the past decade, 
     Judge Sarokin has served as a faculty member for the Harvard 
     Law School Trial Advocacy Workshop. The Trial Advocacy 
     Workshop is Harvard Law School's nationally respected trial 
     skills program offered to second and third year law students. 
     I serve as director of the Trial Advocacy Workshop. Twice a 
     year, we invite judges and lawyers from around the country to 
     critique and advise our students on trial skills. No one is 
     compensated for his or her participation in the program. Over 
     the past decade, Judge Sarokin has not only volunteered to 
     critique the students and their performances, but has also 
     willingly served as a presiding judge at some of the 
     hearings, and on a couple of occasions played the role of a 
     lawyer in a cross-examination exercise. He has always been 
     willing to assume any responsibility in the program to ensure 
     that the students get the maximum feedback to prepare them as 
     ethical litigants in the legal field.
       Judge Sarokin has impressed me with his extensive level of 
     preparation, his knowledge of the significance of minor 
     details, and his witty ability to use critique as a means of 
     both instructing students to improve their performance, and 
     praising the modest progress they make over time. These are 
     the same qualities of gentle persuasion and clarity of 
     instruction that would make him a true asset to the Third 
     Circuit Court of Appeals.
       Many who have read Judge Sarokin's opinions as a district 
     court judge will call him controversial. I consider that an 
     asset rather than a liability. Judge Sarokin is not one to 
     make law, nor is he an ideologue. What he does is insist that 
     the parties are well-prepared and well-represented, and that 
     all the issues that are protected under the constitution are 
     fairly presented and objectively decided. He has great 
     passion and respect for the law and precedent, and yet is 
     willing to re-examine issues that are outdated and contrary 
     to the demands of our constitution. His is a unique intellect 
     with a sense for wit, timing, and incisive analysis, and he 
     will be a true asset to the Appellate Court.
       I am sure that there are many outstanding candidates under 
     consideration for the Third Circuit Court of Appeals. 
     However, I am confident that Judge Sarokin has to rank high 
     on that list. I would be happy to answer any questions you 
     may have, and I recommend Judge H. Lee Sarokin to you most 
     enthusiastically.
           Sincerely,
                                              Charles J. Ogletree.
                                  ____



                                              Yale Law School,

                                     New Haven, CT, June 10, 1994.
     Senator Joseph Biden,
     Senate Judiciary Committee, Russell Senate Office Building, 
         Washington, DC.
     Re: H. Lee Sarokin.
       Dear Senator Biden: The Judiciary Committee will soon hold 
     hearings regarding the confirmation of H. Lee Sarokin. United 
     States District Judge for the District of New Jersey, as a 
     judge on the United States Court of Appeals for the Third 
     Circuit. This letter enumerates why I believe Judge Sarokin 
     to be extraordinarily well-qualified for such elevation.
       Judge Sarokin has, during more than fifteen years on the 
     federal bench, established himself as one of the most 
     distinguished and courageous federal trial judges in the 
     country. A native of New Jersey, he has lived virtually his 
     entire life in the state, apart from his education at 
     Dartmouth and Harvard Law School. During his time on the 
     bench, Judge Sarokin has repeatedly demonstrated himself to 
     be energetic, innovative, scrupulously fair, compassionate 
     and scholarly.
       From the trial bench, Judge Sarokin has already left his 
     mark on the law in an unusually broad array of areas: 
     products liability, habeas corpus; management of complex 
     litigations; criminal law; drug testing; Freedom of 
     Information, the vagueness doctrine, and affirmative action. 
     As a jurist, he remains fully aware of the constitutional 
     restraints on his power as a member of the unselected 
     judiciary, yet courageous enough to act within the scope of 
     his judicial discretion to further the achievement of 
     substantive and procedural justice. He is a jurist of great 
     intelligence; he writes beautifully and clearly; and his 
     opinions are taut, thoroughly researched and carefully 
     reasoned. He is a charming man of great character and 
     decency, who will build consensus among the judges of the 
     appellate court (most of whom already know and respect him 
     greatly).
       Judge Sarokin has been a distinguished district judge in 
     the grand tradition of Charles Wyzanski, Jack Weinstein, and 
     Gehard Gesell. His rulings blend pragmatism with principle, 
     creativity with scholarship, and judiciousness with 
     compassion. Even without sitting on the Court of Appeals, he 
     has created a judicial legacy that is all the more 
     distinctive because he has spoken alone, and all the more 
     remarkable because his has not been the last word. I believe 
     that he will render remarkable service on the Third Circuit, 
     and would be an enormous credit to it. I urge your committee 
     to confirm him swiftly and enthusiastically.
           Sincerely,

                                            Harold Hongju Koh,

                               Gerard C. and Bernice Latrobe Smith
                                   Professor of International Law.
                                  ____

                                            Seton Hall University,


                                                School of Law,

                                                        Newark NJ.
     Senator Joseph R. Biden,
     Russell Senate Office Building, Washington, DC.
       Dear Senator Biden: I submit this letter in support of the 
     nomination of United States District Court Judge H. Lee 
     Sarokin to the United States Court of Appeals for the Third 
     Circuit.
       I have known Judge Sarokin for many years. I initially met 
     him as my very able adversary in a complex litigation. 
     Thereafter I had the privilege of appearing before him in 
     Federal Court. I have also had contact with him during the 
     past six years in my capacity as Dean of Seton Hall Law 
     School. In every capacity in which I have known Judge 
     Sarokin, he has always demonstrated the highest integrity, 
     skill and professionalism.
       Judge Sarokin possesses the highest intellectual 
     capabilities and at the same time has grant sensitivity to 
     and compassion for his follow human beings. He will bring 
     this balance with him to the Court of Appeals just as he has 
     served with great distinction on the District Court.
       I strongly urge that Judge Sarokin be appointed to the 
     Third Circuit Court of Appeals.
           Sincerely,
                                                  Ronald J. Ricco,
                                                             Dean.
                                  ____



                                              Yale Law School,

                                     New Haven, CT, July 22, 1994.
     Senator Joseph R. Biden,
     Senator Orrin G. Hatch,
     Russell Senate Office Building, Washington, DC.
       Dear Senators: Judge Sarokin has served the nation with 
     great distinction and would be a marvelous addition to the 
     Third Circuit.
       Our relationship has been entirely professional. I have 
     read some of Sarokin's opinions and speeches, watched him 
     judge a moot court exercise at Yale, participated with him in 
     academic conferences here, and conferred with him on the 
     selection of law clerks. I have also had the benefit of the 
     views of those students who actually served as his law 
     clerks, all of whom came away from the experience with the 
     greatest respect and admiration for the man.
       The judge is a man of great intelligence--as quick and 
     insightful as any of the judges I know on the federal bench. 
     Indeed, on this score I would put him in the same category as 
     Richard Posner, Ralph Winter, Frank Easterbrook, Douglas 
     Ginsburg, Pierre Leval, and Michael Boudin--some of the very 
     best judges. (Posner and Winter were colleagues of mine; 
     Easterbrook and Ginsburg, students; Leval and Boudin, law 
     school classmates). I have also marveled at the judge's 
     openness. He can be as firm and decisive as the next judge, 
     but until the moment of decision, he stands ready to listen 
     to arguments from both sides.
       Judging is more than intelligence and more than openness; 
     it also requires a measure of empathy, a capacity to 
     understand the positions of all litigants--to weigh their 
     concerns and take them upon oneself. This too is one of Judge 
     Sarokin's strengths. No side of a lawsuit is ever forgotten; 
     no interest is ever slighted; and he shoulders this burden of 
     judging with a lightheartedness that is truly remarkable.
       Over the years, Judge Sarokin's courtroom has become one of 
     the temples of justice of this nation. My students look to 
     it; I look to it for guidance and inspiration. An appointment 
     to the Court of Appeals will be an appropriate recognition of 
     his contribution to our collective life; even more, it will 
     put him in a position to deepen and broaden that 
     contribution.
           Sincerely,
                                                     Owen M. Fiss.
                                  ____

                                            Seton Hall University,


                                                School of Law,

                                         Newark, NJ, May 20, 1994.
     Hon. Orin G. Hatch,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Hatch: I am writing to share with you my views 
     as to the nomination of Judge H. Lee Sarokin to the United 
     States Court of Appeals for the Third Circuit. As you know, I 
     had occasion from 1979 until my retirement in January of 1990 
     to review Judge Sarokin's work as a district court judge. 
     Throughout that period he demonstrated consistently that he 
     was a highly intelligent and thoughtful jurist, always well-
     prepared, and always even-handed. He is a thoughtful student 
     of the law and an excellent legal craftsman.
       I anticipate that you will hear criticism of Judge Sarokin 
     from two quarters. The first is the tobacco industry, since 
     he had the bad luck to preside at the Cipalone trial, a 
     product liability action against certain cigarette 
     manufacturers. That industry has pursued a ``take no 
     prisoners'' approach to product liability litigation. My 
     review of Judge Sarokin's work in connection with the 
     litigation in question has left me convinced, however, that 
     he acted with complete propriety throughout the litigation.
       The second source of criticism probably will be with 
     respect to two habeas corpus cases: Carter and Landano. Both 
     of these were high-visibility cases, one involving boxer 
     ``Hurricane'' Carter and the other involving an alleged 
     killer of a police officer. In both instances the prisoners 
     were ultimately released by the New Jersey courts; properly 
     so. There is nothing in either case to suggest that Judge 
     Sarokin has been anything but even-handed in his approach to 
     criminal defendants, pre- or post-petition. Indeed, the Court 
     of Appeals has no occasion reversed him for failing to 
     conduct a hearing in habeas corpus cases, and his reputation 
     with respect to the trial of criminal cases is that he is 
     even-handed.
       In short, there is no reason whatever for you to be other 
     than an enthusiastic supporter of the confirmation of this 
     very able judge. He is extremely well qualified to make a 
     distinguished contribution to the Court I love.
           Sincerely,
                                                  John J. Gibbons.

  Mr. BRADLEY. Mr. President, the issue of whether Judge Sarokin is 
soft on crime, I believe, has not been proven; has not even been 
seriously argued. He is well within the mainstream and his record 
demonstrates that.
  Now another charge that we have heard today on the floor is that 
Judge Sarokin does not follow precedent; that he does his own thing.
  One charge was made that Judge Sarokin created a new rule for 
voluntariness, signing a false name, and that was in the U.S. versus 
Rodriguez case. What are we talking about when we are talking about 
U.S. v. Rodriguez? We are talking about a suppression motion. They 
wanted to suppress a statement that Rodriguez made so that it cannot be 
admitted into evidence in a trial, I suppose. I am not a lawyer, but 
that is how I think it works.
  Well, Judge Sarokin gets about 50 suppression motions per year. He 
has been there about 15 years. That is about 700 suppression motions. 
And I think he has granted two or three out of 15 years.
  Now, in this one, which he did grant, the suppression of Rodriguez's 
statement, was consistent with longstanding authority on the subject. 
Again, this is a fact determination. It is a determination of fact. 
Judge Sarokin's decision rested primarily on the fact that FBI agents 
brought Rodriguez in for incommunicado questioning, instead of first 
presenting him to a magistrate; and also that Rodriguez was presented 
to a magistrate over 20 hours following his arrest.
  Now, the Supreme Court really has not decided the question, but a 
number of circuits, including the second circuit, the ninth circuit, 
the D.C. Circuit, have held that an unreasonable prearraignment delay 
of greater than 6 hours, pursuant to 18 U.S.C. 3501(c), may compel a 
finding that defendant's Miranda waiver was involuntary. And 18 U.S.C. 
3501(c) expressly provides that delay is directly relevant to the 
question whether a defendant's waiver was voluntary.
  This is a man who spoke limited English, low level of education, did 
not request counsel after being asked if he wanted to. He did, when he 
was asked by the magistrate, request counsel, when the magistrate, who 
spoke to him in Spanish, asked him.
  Now, the important point here is Judge Sarokin did not create a new 
rule of voluntariness. Judge Sarokin stated that the use of the alias, 
the false name that was signed, was only one factor to be considered. 
It was not the deciding factor. It was one factor to be considered in 
the totality of circumstances.
  Now, even in the hearing before the Judiciary Committee, the 
distinguished Senator from Colorado, who spoke eloquently on this 
subject earlier, admitted and said, ``I personally would agree that it 
would not be logical to say''--that it, meaning the defendant's use of 
an alias --``could never be a factor.''
  So it was only one among several factors. The larger fact was the 20-
hour delay in bringing him before a magistrate.
  Then there was the question that he flaunted or he disregarded the 
third circuit's precedents in United States versus Chapman.
  Well, Judge Sarokin did not disregard the third circuit precedent, 
because Chapman is not controlling on the issue of the use of an alias.
  The legal question in Chapman is different from that in Rodriguez. 
First, it is different because the defendant in Chapman did not use an 
alias. So how could it be the same?
  In Chapman, he did not use an alias, so how can it be controlling? He 
used his real name, not an alias. Second, unlike Rodriguez, Chapman 
denied even signing the confession that the prosecution entered in 
evidence.
  In a footnote, the third circuit observed that the jury had rejected 
Chapman's contention. The circuit court added, in any event, the 
voluntariness of the confession did not hang on whether or not the 
prosecution had introduced the wrong piece of paper in evidence. Thus, 
the issues in the two cases were different.
  So why did Judge Sarokin reference Chapman? He referenced it in order 
to--as a conscientious jurist, the reference to the footnote in Chapman 
was designed just to be helpful to the bar. It was designed to remind 
future readers that a different but somewhat related case existed in 
the third circuit regarding a factor that was different from the factor 
analyzed in Rodriguez, which is not relevant to the question of whether 
a defendant's waiver of his Miranda rights was voluntary.
  There was another series of points made on Blum versus Whitkey. There 
it is a very simple set of things, a fee-setting case. There was a 
confusing Supreme Court ruling. Judge Sarokin ruled; set the fees. The 
third circuit said, ``There is an intervening Supreme Court decision, 
why do we not remand it, take a look at this again.''
  Judge Sarokin himself took a look at it again, returned it to the 
third circuit--they reversed him. But, interestingly, the Supreme 
Court, a short while later, in City of Burlington versus Dack, 
vindicated Judge Sarokin's views because the Supreme Court revisited 
the issue of awarding enhancement fees and determined the case that 
Judge Sarokin was supposed to look at and, clearly, derive his answer 
from, was simply unworkable. And who said it? Justice Scalia.
  Justice Scalia, speaking for the majority of the court, noted that 
the approach in the case that Judge Sarokin was supposedly diverting 
from--Judge Scalia said, ``We do not see how it can intelligibly be 
applied.''
  Indeed. So, Judge Sarokin participated as an active and constructive 
participant in the process by which the judiciary seeks to fashion and 
modify rules which are both principled and workable. He did not ignore 
the precedent. The Supreme Court said it was impossible to even tell 
what the precedent meant, what the case meant. So he was not ignoring 
it, he was applying it as he understood it.
  Mr. President, a great deal has been made of the Haines case, and 
Judge Sarokin himself has said if he had it to do over again he would 
have used language that was different. I take him at his word. But on 
the issue of removal I think it is important to make a few points that 
relate to the fitness of Judge Sarokin to serve on the third circuit.
  The third circuit itself in announcing his removal said it was the 
most agonizing decision, to reassign Judge Sarokin, because, the third 
circuit stated unequivocally, he ``is well known and respected for 
magnificent abilities and outstanding jurisprudential and judicial 
temperaments .''
  Even a critic of his remarks in the tobacco litigation, Professor 
Monroe Freedman of Hofstra Law School, has called Judge Sarokin ``one 
of our best judges.''
  So, even in the decision itself was an acknowledgment of his superior 
abilities.
  What did the court of appeals state? They stated outright that Judge 
Sarokin could--it was possible--Judge Sarokin indeed could be fair in 
fact, and that only the appearance of impartiality was implicated by 
his remarks.
  Judge Aldisirt of the third circuit, the judge who sat on the panel 
that rendered the decision removing Judge Sarokin from the tobacco 
litigation, has stated the following about his elevation to the third 
circuit. He has said:

       The addition of Judge Sarokin to the third circuit will 
     bring a high degree of judicial strength because of the 
     respect he has earned among his peers, his warmth and wisdom, 
     and the solid contributions he will make because of his 
     magnificent and profound experience.

  Judge Aldisert goes on to say:

       An ideal appellate judge should possess the following 
     qualities: Fairness, justness, impartiality, devotion, 
     decisiveness, clear thought and expression, professional 
     literacy, institutional fidelity, and political 
     responsibility.

  And after laying out this criteria he states--and this is the judge 
who wrote the opinion that removed Judge Sarokin from the tobacco case. 
He states:

       Judge Sarokin passes these rigorous qualifications with 
     flying colors.

  Flying colors.
  So, if that was not enough, five of six circuit courts that have 
considered the question of appearance/fact removal, including the third 
circuit in Johnson versus Trueblood, had clearly held that:

       The appearance of judicial bias originating from facts 
     developed in a judicial proceeding should not result in 
     removal.

  Consistent with these rulings Judge Sarokin's remarks, although 
perhaps ill-considered, came after years of reviewing evidence in the 
tobacco litigation. And no one--no one has alleged that his views came 
from anything but the evidence.
  Finally, I ask unanimous consent to have printed in the Record the 
comments of legal commentators that Judge Sarokin should have not been 
removed from the Seton Hall Law Review: Prof. Paul Gluckow, Seton Hall 
University Law School; Prof. Jeffrey Stempel, Brooklyn Law School; 
Prof. Bennett Gershman, Pace University Law School--all of whom in one 
way or another stated he should not have been removed.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Was Sarokin's removal consistent with the law?
       Judge Sarokin's remarks, although perhaps ill-considered, 
     came after years of reviewing evidence in the tobacco 
     litigation. No one alleged that his views--whatever they 
     were--came from anything but the evidence. Five of the six 
     Circuit Courts that had considered the question--including 
     the Third Circuit, see Johnson v. Trueblood, 629 F.2d 287 
     (1980)--had clearly held that appearances of judicial bias 
     originating in judicial proceedings should not result in 
     removal. These courts recognized that in order to issue 
     rulings, a judge must develop views based upon the weight of 
     the evidence presented.
       Most commentators agreed that Judge Sarokin should not have 
     been removed under the prevailing legal standard:
       ``[T]he Haines opinion is troubling because it appears to 
     directly contradict the well-settled Third Circuit position . 
     . .. Judge Sarokin was making a determination regarding 
     whether the crime-fraud exception applied to certain 
     documents. The Third Circuit Court of Appeals did not address 
     how the judge was to make his determination without 
     addressing the issue of whether tobacco companies had engaged 
     in concealment.'' Comment, Seton Hall law Review (1994).
       ``[T]he [Third Circuit's] decision . . . ignored both 
     governing statutory authority and the fundamental distinction 
     between judicial and extrajudicial bias . . .. [T]he court's 
     failure even to mention this issue was judicially dishonest . 
     . .. Prof. Paul C. Gluckow, Seton Hall Univ. Law School 
     (Seton Hall Law Review 1993).
       ``What Sarokin said was . . . intemperate, but I don't 
     think it warranted disqualification under the case law. The 
     distinction between information that is judicially acquired, 
     or not, is an important distinction.'' Prof. Jeffrey Stempel, 
     Brooklyn Law School (quoted in N.J. Law Journal, 9/14/92).
       ``I have found no other case where a judge has been 
     disqualified for an appearance of bias for remarks contained 
     in a judicial opinion, based on facts in the record, and 
     relating to the merits of the case.'' Prof. Bennett L. 
     Gershman, Pace Univ. Law School (N.Y. Law Journal, 9/21/91).
       In fact, the United States Supreme Court recognized this 
     distinction earlier this year in its decision in Litekey v. 
     United States, 114 S.Ct. 1147 (1994). The Court sided with 
     the majority of Circuit Courts who had held that although a 
     judge may often appear biased because of views developed from 
     hearing the evidence in judicial proceedings, removal is 
     required only when the judge ``display[s] a deep-seated 
     favoritism or antagonism that would make fair judgement 
     impossible.'' 114 S. Ct. at 1157. Since the Third Circuit 
     explicitly stated that it did not doubt Judge Sarokin's 
     actual ability to adjudicate the case impartially, its 
     decision in Hanes v. Liggett could not survive the Supreme 
     Court's decision in Litekey.

  Mr. BRADLEY. Mr. President, finally on the removal question, the U.S. 
Supreme Court recognized this distinction earlier this year, when the 
Court sided with the majority of the circuit courts who had held that:

       Although a judge may often appear biased because of views 
     developed from hearing the evidence in judicial proceedings, 
     removal is required only when the judge displays a deep-
     seated favoritism or antagonism that would make fair judgment 
     impossible.

  So, since the third circuit explicitly stated that it did not doubt 
Judge Sarokin's actual ability to adjudicate the case impartially, its 
decision in Haines would not likely survive the Supreme Court's recent 
decision.
  So, I think a fair reading of Judge Sarokin's record would refute any 
proposition that he is soft on crime--far from it. And it would refute 
any proposition that he has not followed precedent--far from it.
  While I do not agree with all of his opinions, what his record does 
reveal is a jurist who possesses demonstrated judicial temperament to 
serve on the circuit court. And based on his record as a 15-year 
veteran of the Federal branch, and the broad level of support he has 
received from people knowledgeable of his accomplishments, from all the 
former U.S. attorneys to all the former judges--chief judges of the 
third circuit, U.S. attorneys in New Jersey, Judge Sarokin is eminently 
qualified to sit on that court.
  I think and I hope many Senators will concur with Professor Priest of 
Yale that Judge Sarokin's nomination, ``will prove to be among this 
country's most distinguished judicial appointments of many decades.''
  I yield the floor.
  The PRESIDING OFFICER. Is there further debate on the nomination?
  The Senator from Utah.
  Mr. HATCH. Mr. President, I believe the minority leader would like to 
speak on this issue and perhaps he will be our next speaker.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Feingold). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DOLE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOLE. Mr. President, my statement is very brief. I will not take 
over 5 minutes. Following that statement, as I understand, there will 
be a vote on this nomination?
  Mr. BIDEN. Mr. President, reserving the right to object, quite 
frankly--
  Mr. DOLE. I was not asking for consent.
  Mr. BIDEN. I am sorry. I beg your pardon. I thought you were asking 
for consent.
  Mr. DOLE. As I understand, we will be voting fairly soon.
  Mr. BIDEN. Mr. President, yes.
  The PRESIDING OFFICER. The Republican leader is recognized.
  Mr. DOLE. Mr. President, last August, I expressed a number of 
concerns about Judge Lee Sarokin who had been nominated by President 
Clinton for the Third Circuit Court of Appeals. These concerns continue 
to be very troubling and, as a result, I intend to vote against his 
confirmation.
  All this stuff has been gone over a number of times, so I will not 
repeat it because I have been listening to some of the debate about the 
statements in the West Virginia Law Review and about pretrial and 
preconviction detention of those who have been criminally charged 
violates the ``presumption of innocence.''
  I think there are a number of concerns that if these views were to 
prevail, vicious criminals, like the World Trade Center bombers, and 
others, would be free to roam the streets. We passed a crime bill. We 
talk about being tough on crime and then we continue to confirm judges 
who apparently have some difficulty being tough on crime.
  Of course, in the article, too, he also criticized mandatory 
sentencing on the theory that it deprives a judge of the right to grant 
mercy in those instances in which the facts cry out for it.
  So I think for all the reasons that have been suggested, it is no 
wonder that the Fraternal Order of Police in New Jersey, the National 
Fraternal Order of Police, the Law Enforcement Alliance of America, and 
others, are opposed to this nomination.
  I know it has also been discussed about his bias against the 
defendants in a tobacco case. He may have been right on the facts. It 
was so blatant, so well publicized that the Third Circuit Court, the 
court to which the judge has been nominated, took the extraordinary 
action of removing him from the case. Even the New York Times applauded 
the removal stating Sarokin had been ``far out of line'' and ``flunked 
an important test of credibility.''
  So, Mr. President, Lee Sarokin may be a decent person. I am certain 
he is. He is a man of integrity and, needless to say, I fully expect he 
will be confirmed some time in the next few minutes. I wish him well as 
he assumes his new position on the third circuit.
  Hopefully, today's debate will serve as a wake-up call to him that 
the criminal-as-a-victim-of-society approach that appears to have 
dominated his decisionmaking at the district court level just will not 
cut it on the third circuit. If he learns that simple lesson, then 
perhaps today's debate will have been a worthwhile effort after all.
  I think also that, hopefully, the administration will get the word: 
No more Rosemary Barketts, no more Lee Sarokins, no more liberal 
activists and no more judges up here when the President talks about 
being tough on crime and then sends up these kind of nominees.
  We can pass all the crime bills we want, but it will not make any 
difference if the Federal bench is going to be dominated by judges who 
seek to expand the rights of criminal defendants and hamstring law 
enforcement in the process. I think that is the bottom line. If the 
President wants to be tough on crime, he can begin by nominating judges 
who view law and order as something more than just a slogan.
  Mr. President, last August, I expressed a number of concerns about 
Judge Lee Sarokin, who has been nominated by President Clinton to the 
Third Circuit Court of Appeals. These concerns continue to be very 
troubling, and as a result, I intend to vote against his confirmation.
  In an article appearing in the West Virginia Law Review, Judge 
Sarokin suggests that the pretrial and preconviction detention of those 
charged with violent crimes violates the ``presumption of innocence.'' 
I repeat: Judge Sarokin has suggested that the pretrail and 
preconviction detention of those who have been criminally charged 
violates the presumption of innocence.
  If this view were to prevail, vicious criminals like the World Center 
bombers, or the killer of 12-year-old Megan Kanka, would be free to 
roam the streets of our country at any and all times prior to their 
actual convictions. The impact on public safety would be immeasurable.
  In the same West Virginia Law Review article, Judge Sarokin also 
criticizes mandatory sentencing, insisting that ``mandatory and uniform 
sentencing * * * depriv[es] judges of the right to grant mercy in those 
instances in which the facts cry out for it.'' And he argues for an 
air-tight exclusionary rule, even when the police act in a good faith 
belief that their search is lawful. The Supreme Court, of course, took 
a contrary view in the Leon decision, upholding a ``good faith'' 
exception.
  It is no wonder, then, that the National Fraternal Order of Police, 
the New Jersey FOP, the Law Enforcement Alliance of America, and other 
law enforcement organizations are publicly opposed to the Sarokin 
nomination.
  Not only is Judge Sarokin's soft-on-crime judicial philosophy a 
source of concern, his judicial temperament is an issue as well.
  As a Member of the Federal district court in New Jersey, Judge 
Sarokin presided over a case in which several tobacco companies were 
the defendants. During the trial, Judge Sarokin's bias against the 
defendants was apparently so blatant and so well-publicized that the 
Third Circuit Court of Appeals--The court to which Judge Sarokin has 
been nominated--took the extraordinary step of actually removing him 
from the case. Even the New York Times applauded the removal, stating 
that Sarokin had been ``far out of line'' and had ``flunked an 
important test of credibility.''

  So, Mr. President, Lee Sarokin is obviously not my kind of judge. 
Unfortunately, his views on key criminal justice issues are so far 
removed from the mainstream, so reflective of his own liberal bias, 
that I cannot in good conscience support his nomination.
  Let me just say, though, that Judge Sarokin appears to be a decent 
person and a man of integrity. And, needless to say, I fully expect 
that he will be confirmed sometime this week, perhaps as early as 
today. Once confirmed, I wish the judge well as he assumes his new 
position on the third circuit.
  Hopefully, today's debate will serve as a wakeup call to him that the 
``criminal-as-a-victim-of-society'' approach that appears to have 
dominated his decisionmaking at the district court level just will not 
cut it on the third circuit. If Judge Sarokin learns this simple 
lesson, then perhaps today's debate will have been worthwhile after 
all.
  Finally, Mr. President, a word of advice and caution to the 
administration: Please, no more Rosemary Barketts. No more Lee 
Sarokins. No more liberal activists.
  We can pass all the crime bills in the world, but they will not make 
a bit of difference, if the Federal Bench is dominated by judges who 
seek to expand the rights of criminal defendants and hamstring law 
enforcement in the process. quite simply, we don't need judges, like 
Lee Sarokin, who oppose the pretrial detention of violent offenders. We 
do not need judges who oppose mandatory sentencing. And we do not need 
judges who are insensitive to the daily struggles of our professional 
law enforcement officers.
  If President Clinton wants to be tough on crime, then he can begin by 
nominating judges who view law and order as something more than just a 
slogan.
  Mr. BIDEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. BIDEN. Mr. President, I am, at least, on this side ready to vote 
on this. I will make a 30-second comment.
  The bottom line is this President has sent up and we have confirmed 
72 judges. The Republicans, almost to a person, voted for almost every 
one of them. He sent up two Supreme Court Justices which received 
accolades before, after, during and now on the bench.
  The President, unlike previous Presidents, has not sent ideologues to 
us. He has sent seasoned lawyers and seasoned judges who do not come 
with a brief. we are ready to vote.
  Mr. HATCH. Are the yeas and nays ordered?
  Mr BIDEN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. Is there further debate? If not, the question 
is, will the Senate advise and consent to the nomination of H. Lee 
Sarokin, of New Jersey, to be U.S. circuit judge for the third circuit?
  The yeas and nays have been ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from Massachusetts [Mr. 
Kennedy] is necessarily absent.
  Mr. SIMPSON. I announce that the Senator from Alaska [Mr. Stevens] is 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 63, nays 35, as follows:

                      [Rollcall Vote No. 319 Ex.]

                                YEAS--63

     Akaka
     Baucus
     Biden
     Bingaman
     Boren
     Boxer
     Bradley
     Breaux
     Bumpers
     Campbell
     Chafee
     Cohen
     Conrad
     Danforth
     Daschle
     DeConcini
     Dodd
     Dorgan
     Durenberger
     Exon
     Feingold
     Feinstein
     Glenn
     Graham
     Gregg
     Harkin
     Hatfield
     Heflin
     Hollings
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Mathews
     Metzenbaum
     Mikulski
     Mitchell
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nunn
     Packwood
     Pell
     Pressler
     Pryor
     Riegle
     Robb
     Rockefeller
     Sarbanes
     Simon
     Simpson
     Specter
     Wellstone
     Wofford

                                NAYS--35

     Bennett
     Bond
     Brown
     Bryan
     Burns
     Byrd
     Coats
     Cochran
     Coverdell
     Craig
     D'Amato
     Dole
     Domenici
     Faircloth
     Ford
     Gorton
     Gramm
     Grassley
     Hatch
     Helms
     Hutchison
     Kempthorne
     Lott
     Mack
     McCain
     McConnell
     Nickles
     Reid
     Roth
     Sasser
     Shelby
     Smith
     Thurmond
     Wallop
     Warner

                             NOT VOTING--2

     Kennedy
     Stevens
       
  So the nomination was confirmed.
  Mr. MITCHELL. Mr. President, I move to reconsider the vote by which 
the nomination was confirmed.
  Mr. METZENBAUM. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Without objection, the President will be 
immediately notified of the confirmation of the nomination.

                          ____________________