[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]

 
                             THE JUDICIARY

  The assistant legislative clerk read the nomination of H. Lee 
Sarokin, of New Jersey, to be U.S. circuit judge for the third circuit.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 10 a.m. shall be divided and controlled equally between the 
Senator from Delaware [Mr. Biden] and the Senator from Utah [Mr. Hatch] 
or their designees.
  The Chair recognizes the Senator from Utah.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum and ask 
unanimous consent the time be divided equally.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. HATCH. Mr. President, once again my colleagues on the other side 
of the aisle have adopted a tactic of prematurely filing a cloture 
motion, this time on President Clinton's controversial and ill-advised 
nomination of Judge Lee Sarokin to the U.S. Court of Appeals for the 
Third Circuit. My colleagues, of course, are wholly within their rights 
in pursuing this type of a tactic, and we will undoubtedly hear many 
inaccurate cries of filibuster and obstructionism from their ranks. But 
my colleagues have, I am afraid, cried wolf far too often, and their 
credibility on this matter has long since worn thin.

  Let me make two points perfectly clear: First, I do not have, and 
have not ever had, any intention of filibustering the Sarokin 
nomination. Nor am I aware of any of my colleagues who have such a 
design. On the contrary, I and my Republican colleagues on the 
Judiciary Committee accommodated the senior Senator from New Jersey by 
making sure that Judge Sarokin received his confirmation hearing before 
the Senate took its August recess. Since that time, I have attempted to 
work out a time agreement for the orderly consideration of this 
nomination.
  The second point that requires emphasis is that the nomination of 
Judge Sarokin is an important and controversial nomination that 
warrants careful consideration on the floor of this Senate. In the 15 
years since he was appointed to the Federal district court in New 
Jersey by Jimmy Carter, Judge Sarokin has earned a nationwide 
reputation as a stridently liberal judicial activist. On a broad range 
of telltale issues--such as crime, quotas, reverse discrimination, 
pornography, and minimal community standards of decency and behavior--
Judge Sarokin has pursued his own political agenda instead of following 
the law. In so doing, he has ignored, defied, and even stampeded 
binding Supreme Court and third circuit precedent, and he has flaunted 
his own biases and sentiments on the sleeve of his judicial robe.
  These are not just my views, nor just the views of outside critics. 
The third circuit itself has, for example, lambasted Judge Sarokin for 
``judicial usurpation of power,'' for ignoring ``fundamental concepts 
of due process,'' for destroying the appearance of judicial 
impartiality, and for ``superimpos[ing his] own view of what the law 
should be in the face of the Supreme Court's contrary precedent.'' The 
New Jersey Law Journal on September 14, 1992, has reported that Judge 
Sarokin ``may be the most reversed federal judge in New Jersey when it 
comes to major cases.''
  Law enforcement and victims rights organizations that have announced 
their opposition to Judge Sarokin's nomination include the Fraternal 
Order of Police, the Law Enforcement Alliance of America, the New 
Jersey State Police Survivors of the Triangle, Organized Victims of 
Violent Crime, the League of American Families, Citizens for Law and 
Order, Citizens Against Violent Crime, and Voices for Victims, Inc.
  I just do not understand why, at a time when the President says that 
he is finally getting serious about crime, he is appointing to a top 
judgeship someone whose soft-on-crime views are so strongly opposed by 
many police and crime victims. Indeed, it is particularly notable that 
groups like the Fraternal Order of Police, which joined with President 
Clinton in supporting the crime bill, oppose Judge Sarokin's 
nomination.
  Let me emphasize that this nomination is especially worrisome since 
Judge Sarokin, as a court of appeals judge, would have enormous power 
and would function, in effect, as the final decisionmaker in the vast 
majority of cases he hears. I believe that this nomination requires a 
reasonable airing.
  The Clinton administration, having postured itself as tough on crime, 
wants to hide the fact that it is supporting soft-on-crime judges, like 
Rosemary Barkett and Lee Sarokin, who will undermine our Nation's 
anticrime effort. But the American people deserve to know what kind of 
judges this President is putting on the Federal courts of appeals.
  Mr. President, I am prepared to have a reasonable time agreement on 
this nomination. I will vote in favor of cloture on this nomination, 
and I urge all of our colleagues on both sides of the floor to do so as 
well. I expect that most or all of my colleagues on this side of the 
aisle will vote the same way. But I will not abandon the Senate's duty 
to debate and expose this nomination. I therefore give notice that I 
and other Senators who are deeply concerned about this nomination 
intend to debate it after the cloture vote in order to present Judge 
Sarokin's record and to explain why we will vote against his 
nomination.
  Having said all that, having met Judge Sarokin, having watched him, I 
have to say he is a genteel and interesting and apparently a very fine 
person. That does not necessarily qualify a person to the circuit court 
of appeals. He may be a fine person and I like him personally, but it 
is his judicial opinions that I am finding fault with and I think so 
many others have found fault with.
  I notice the distinguished Senator from New Jersey is on the floor. 
At this point, I reserve the remainder of my time so he can speak to 
this nomination.
  The ACTING PRESIDENT pro tempore. Who seeks recognition?
  Mr. BRADLEY addressed the Chair.
  The ACTING PRESIDENT pro tempore. The Chair recognizes the Senator 
from New Jersey [Mr. Bradley].
  Mr. BRADLEY. Mr. President, let me say at the outset how much I 
appreciate the courtesy that has been extended to me by the 
distinguished Senator from Utah throughout this process. He has been 
more than generous and accommodating under difficult circumstances, and 
I appreciate very much his willingness and his cooperative spirit.
  I hope, as he stated, that after the cloture vote takes place today 
around 10:20, as I understand it, that we will be able to get a time 
agreement so that we will not have to go for 30 hours after cloture is 
invoked, if it is invoked, as I hope it will be invoked. I know the 
distinguished Senator from Utah is working to achieve that objective, 
and I thank him very much.
  Mr. President, I know we are awaiting the distinguished chairman of 
the Judiciary Committee, Senator Biden, who, I am sure, wants to make 
an opening statement, but since we have only until 10 o'clock before 
there is a vote, and he is not here--I am told he is on his way--I will 
go ahead and make a brief opening statement and reserve much of what I 
have to say for the debate as it evolves over the course of the day.
  Mr. President, I speak in favor of the nomination of Judge H. Lee 
Sarokin to the U.S. Court of Appeals for the Third Circuit. Judge 
Sarokin has served on the District Court for the District of New Jersey 
since 1979. He is a jurist of the highest principles and unquestioned 
integrity. His humility and fairness have been hallmarks of his legal 
career, and Judge Sarokin's demonstrated record as a district court 
judge indicates that he is eminently qualified to serve on the third 
circuit.
  Before being named to the district court by President Carter, Judge 
Sarokin practiced law for 25 years. He was a partner and trial counsel 
in the firm of Lasser, Lasser, Sarokin & Hochman, which he joined in 
1954. From 1959 to 1965, Judge Sarokin served part time as assistant 
Union County counsel. Judge Sarokin has taught real estate law at 
Rutgers Law School and is a frequent lecturer at Harvard and Yale, and 
other law schools across the country. He is a graduate of Dartmouth 
College and the Harvard Law School and the author of numerous scholarly 
legal articles. He is known for his keen intellect.
  Mr. President, Judge Sarokin's achievements during his 15-year tenure 
on the bench are laudable. The following facts indicate that Judge 
Sarokin, based on his distinguished record as a 15-year veteran of the 
district court, is highly qualified to serve on the third circuit.
  First, Judge Sarokin has received a unanimous ``well qualified" 
rating from the American Bar Association, which is the highest possible 
rating. He has been an extremely effective jurist on the district 
court. His decisions have yielded a body of case law that is based on 
adherence to the Constitution and the rule of law. For example, of the 
over 2,000 written opinions issued by Judge Sarokin, approximately 50, 
or less than 3 percent, have been reversed or vacated on appeal. At 
least two of those reversals occurred when legislation was subsequently 
changed as a result of his rulings. In addition, two of the reversals 
were themselves reversed by the U.S. Supreme Court.
  So Judge Sarokin's record and effectiveness is clear for anyone to 
see. Judge Sarokin has also held several leadership positions within 
the Federal judiciary itself. He has been appointed by Chief Justice 
Rehnquist to the Judicial Conference Committee on Judicial Improvements 
and the Committee on Court Administration and Case Management. He has 
also served as the chair of the Subcommittee on Case Management.
  In addition, he is the only judge chosen to chair the Third Circuit 
Judicial Conference twice and has twice served as the program chair of 
the Conference of Federal Judges and was recently reappointed as chair 
of the National Conference of Federal Judges.
  Third, Mr. President, much of New Jersey's law enforcement community 
supports Judge Sarokin's nomination to the third circuit. Frank Ginesi, 
president of the New Jersey State Police Benevolent Association, by far 
the largest police organization in New Jersey representing over 30,000 
police officers, urges Judge Sarokin's confirmation to the third 
circuit.
  Also, David Blaker and Thomas Little, president of the State Troopers 
and Noncommissioned Officers Association and local 105 of the New 
Jersey State Policemen's Benevolent Association, representing over 
5,000 correctional officers, respectively, have endorsed Judge Sarokin. 
In addition, the Bergen County Police Conference, the State Troopers 
Fraternal Association of New Jersey, and the Police Foundation have 
indicated their support for Judge Sarokin's elevation to the third 
circuit. According to the New Jersey State Troopers Association, Judge 
Sarokin's service on the Third Circuit Court of Appeals is ``in the 
best interest of law enforcement.''
  Moreover--and I think this is an important point, Mr. President--the 
legal arm of Federal law enforcement is supportive of Judge Sarokin's 
nomination. Four former U.S. Attorneys for the District of New Jersey--
Herb Stern, William Robertson, W. Hunt Dumont, and Michael Chertoff--
have endorsed the nomination.
  Mr. President, these are the Federal law enforcement officials who 
have practiced before the judge for the last 15 years. William 
Robertson served as the U.S. attorney for the Carter administration 
while Herbert Stern, Hunt Dumont, and Michael Chertoff served under the 
Nixon, Reagan, and Bush administrations, respectively.
  Michael Chertoff, who recently served as the Republican minority 
counsel in the Whitewater hearings and was an outstanding U.S. 
attorney, states the following:

       In presiding over complicated and sometimes contentious 
     criminal trials, Judge Sarokin was patient, firm, and fair.

  In addition, James Zazzali, the former chairman of the New Jersey 
State Crime Commission and a former State attorney general, supports 
Judge Sarokin and states that the judge ``would bring extraordinary 
talent, experience and perspective to the third circuit.''
  Mr. President, members of the New Jersey legal community also have 
endorsed Judge Sarokin's nomination and done so with enthusiasm. 
William McGuire, president of the New Jersey Bar Association, and 
Thomas Curtin, immediate past president of the New Jersey Bar 
Association, have proclaimed their support for Judge Sarokin.
  Also, Gerald Eisenstat, a past president of the New Jersey Bar 
Association, and Vincent Apruzzese, another past president of the New 
Jersey Bar Association and a former member of the board of governors of 
the American Bar Association, have endorsed the nomination of Judge 
Sarokin.
  Mr. President, how much time remains?
  The ACTING PRESIDENT pro tempore. The Chair would advise the Senator 
from New Jersey the Senator from New Jersey has 17\1/2\ minutes 
remaining.
  Mr. BRADLEY. Will the Chair please inform the Senator from New Jersey 
when he has 15 minutes remaining?
  The ACTING PRESIDENT pro tempore. The Chair will do that.
  Mr. BRADLEY. Mr. President, Judge Sarokin is held in high regard by 
his fellow judges in the third circuit. Now, these are the judges that 
we will hear a lot of comments about today and quotes from various 
opinions by these judges, and yet these judges overwhelmingly support 
Judge Sarokin's ascension to the third circuit.
  According to Judge Leonard Garth, a Nixon appointee and senior judge 
of the third circuit who has known Judge Sarokin over 13 years, he has 
throughout his career ``exhibited the compassion, the resourcefulness, 
the intelligence, the heart and the fairness that are hallmarks of an 
outstanding jurist.''
  In addition, Mr. President, every living former judge of the third 
circuit--Judge Ruggero J. Aldisert, Judge John Gibbons, and Judge Leon 
Higginbotham--has praised the exceptional judicial performance of Judge 
Sarokin. As I said, today we are likely to hear that the third circuit 
has reversed Judge Sarokin on a few occasions, and, indeed, what judge 
has not been reversed? But make no mistake about the support of these 
judges for their future colleague. Former Chief Judge Aldisert has 
written that Judge Sarokin is ``one of the most outstanding district 
judges in the third judicial circuit, a true scholar, and at the same 
time a genuine humanitarian, constantly in quest for justice for the 
parties who appear before him.''
  Former Chief Judge Gibbons, a Nixon appointee who is presently a 
professor of law at Seton Hall Law School, stated that Judge Sarokin 
``would bring both intellectual strength and needed ideological balance 
to the Court of Appeals.''
  The ACTING PRESIDENT pro tempore. The Chair would advise the Senator 
that there are 15 minutes remaining.
  Mr. BRADLEY. Mr. President, could I take 2 more minutes?
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. BRADLEY. In addition, former Chief Judge Higginbotham notes that 
Judge Sarokin is ``thoughtful, fair and impressive.'' Judge Aldisert 
states that an ideal appellate judge should possess the following 
qualities: fairness, justice, and impartiality; second, devotion and 
decisiveness; third, clear thought and expression; fourth, professional 
literacy; fifth, institutional fidelity; sixth, political 
responsibility. With regard to Judge Sarokin's judicial abilities, 
Judge Aldisert writes that ``Judge Sarokin passes these rigorous 
qualifications with flying colors.''
  Mr. President, there are many highly respected members of the 
academic community also who support Judge Sarokin's elevation. 
Professor George Priest of the Yale Law School, who testified in 
support of former Judge Robert Bork during his confirmation hearings, 
states that ``Judge Sarokin is among the very first rank of Federal 
judges whose most important quality is what I would call a deep 
judiciousness, consisting of a combination of seriousness, a commitment 
to making sense of the law, and a devotion above all else to fair 
treatment of the parties to the litigation.''
  Prof. Owen Fiss of the Yale Law School echoes the sentiment of his 
colleague by noting that ``Judge Sarokin's courtroom has become one of 
the temples of justice of this nation.''
  Moreover, Prof. Herbert Koh of the Yale Law School writes that Judge 
Sarokin is ``extraordinarily well qualified for elevation to the third 
circuit.''
  Mr. President, I reserve the remainder of my time. I will finish in 
just 30 seconds.
  Mr. President, I have known Judge Sarokin for over 20 years. He is a 
principled jurist who possesses the demonstrated judicial temperament 
to serve as a circuit judge. Based on his outstanding record as a 15-
year veteran of the Federal bench and the broad level of support he has 
received from people knowledgeable of his accomplishments, Judge 
Sarokin is eminently qualified to be elevated to the third circuit. 
Indeed, George Priest has said, and many will agree with what he has 
said about Judge Sarokin's nomination, it ``will prove to be among the 
country's most distinguished judicial appointments of many decades.''
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from New Jersey yields 
the floor.
  Who seeks recognition?
  Mr. HATCH. Mr. President, I yield 5 minutes to the distinguished 
Senator from Idaho.
  The ACTING PRESIDENT pro tempore. The Senator from Idaho [Mr. Craig] 
is recognized for 5 minutes.
  Mr. CRAIG. Mr. President, there are few duties of the Senate more 
important than its role in the confirmation of the nominees for a 
position on the Federal bench. I do not know of any Senator who takes 
this responsibility lightly. Certainly this Senator does not. The lives 
of all Americans are daily affected by the decisions issuing from the 
judicial branch for a Federal judge's lifetime. For that reason, the 
qualifications of the nominees must be weighed critically and 
deliberately, no matter what level of the court system the nominee is 
supposed to join.
  When I first joined the Senate, I was struck by how closely my 
colleagues scrutinized these appointments. Members on both sides of the 
aisle repeatedly cautioned the Senate not to blindly confirm the 
President's nominees, but to work as a vital partner in reviewing 
nominations.
  I think it was the senior Senator from Illinois who once said ``There 
should be no automatic presumption that the President gets the judges 
he wants.''
  And more recently, the senior Senator from New York said that ``Any 
notion that there is a rebuttable presumption on behalf of a 
nomination--that the Senate ought to be basically pliant in response to 
a nomination--is altogether unconsitutional--even anti-constitutional, 
and speaks to a right of the American people.''
  My decision on a judicial nominee's fitness is based on my evaluation 
of three criteria: character, competence, and judicial philosophy--that 
is, how the nominee views the duty of the court and its scope of 
authority.
  It is my strong belief that the judiciary should hold to its original 
purpose, neither rubberstamping legislative decisions nor overreaching 
to act as substitute legislators. Time and again, I have heard from 
citizens complaining about the harm done by social activists on the 
bench--harm that may only be reversed by an extraordinary action on the 
part of the legislative branch, if at all.
  It is this aspect of the nomination before us that concerns me a 
great deal.
  I have reviewed the background materials on Judge Sarokin provided by 
the administration and others, and I cannot ignore the nominee's 
penchant for imposing his own political vision on the case before him, 
regardless of settled precedent and fundamental principles of due 
process.
  Now, I am not a lawyer. That is why in my own State of Idaho, I have 
worked to establish a Justice Department Nominee Review Commission 
modeled on those of a number of the States, to advise me on Idaho's 
Federal judicial nominees. It is why I have sought the views of other 
members of the legal profession on pending nominations.
  And when it comes to how members of his own profession view Judge 
Sarokin's judicial activism, we have before us the remarkable action 
and opinion of the Third Circuit Court of Appeals in the Haines 
antitobacco case.
  The administration has done its best to put a good face on that 
particular event, but the fact remains that the third circuit vacated 
Judge Sarokin's order and removed him from the case--an action the 
court itself said was an ``extreme'' remedy justified only in 
``exceptional circumstances amounting to a judicial usurpation of 
power.'' That is a pretty strong statement from the court. It 
characterized Judge Sarokin's ruling as being contrary to our `'common 
law tradition,'' that it ignored ``fundamental concepts of due 
process,'' and destroyed any appearance of impartiality.
  I will leave the scholarly debate about Judge Sarokin's ruling to the 
lawyers here in the Senate. But even a rancher from Idaho can 
understand how seriously he departed from accepted judicial standards 
and practices.
  He used his position to launch an unnecessary and inappropriate 
attack on the tobacco industry. Adding insult to injury, after having 
been rebuked and removed from the case by the third circuit, he 
accepted an award from an antismoking interest group for his 
``significant achievement'' on the issue.
  Mr. President, I am not a smoker. I am a reformed smoker. I am almost 
an antismoker. But I speak out on this issue because I think this judge 
went beyond the bounds of his responsibility.
  Mr. President, that is not the kind of fairness, impartiality, and 
prudence Americans rightfully expect to see in those who occupy seats 
on the bench.
  Even if that were the only incident of its kind, it would weigh very 
heavily with me. But Judge Sarokin's record contains a number of other 
troubling episodes. One example that struck me was another reversal by 
the third circuit in the Blum case, in which the court of appeals 
pointed out that Judge Sarokin had ``proceeded in accordance with his 
own views'' in defiance of Supreme Court precedent.
  I know others have additional cases to discuss, so I will move on to 
another troubling aspect of this nominee: his record in criminal 
justice matters.
  The administration's background information on this nominee stresses 
that he is supported by the law enforcement community. While some may 
support him, Mr. President, there are others in both the law 
enforcement and victim's rights communities that oppose this nominee, 
(for example: the Fraternal Order of Police, Law Enforcement Alliance 
of America, New Jersey State Police Survivors of the Triangle, 
Organized Victims of Violent Crime, Citizens for Law and Order, Voices 
for Victims Inc.
  They oppose him because of his peculiar views in the area of criminal 
justice--views which are at odds with the kind of tough crime stance 
that this Senate has adopted and this administration claims to support. 
For example, in an article he wrote for the West Virginia Law Review, 
Judge Sarokin opposed preconviction detention of criminal defendants 
and opposed mandatory and uniform sentencing.
  And if there has been one Senator, there have been a multitude of 
Senators that have spoken out in behalf of mandatory sentences for 
certain types of crimes and preconviction detention
  I know the administration must make the best case possible for its 
nominees, but they cannot expect this Senate, or this Senator, to 
ignore ``the rest of the story.'' Judge Sarokin's record reflects a 
pattern of disdain for settled legal precedent and principles of 
judicial decisionmaking, an eagerness to use his authority to 
accomplish social change, and a readiness to impose his own moral views 
on the case before him. In sum, I believe it would be a mistake to 
advance Judge Sarokin to the third circuit, and I will vote against 
cloture and against confirmation.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. BIDEN. Mr. President, I yield myself 5 minutes.
  The ACTING PRESIDENT pro tempore. The Chair recognizes the Senator 
from Delaware.
  Mr. BIDEN. Mr. President, there are a lot of--as we used to say in 
law school--``red herrings'' that have been raised about this nominee, 
as have been raised about others over the past months, years, and 
decades. It is part of the process. I think part of it has to do--I say 
this respectfully--with occasionally a lack of understanding of 
constitutionally guaranteed processes that are built into the 
Constitution and the State constitutions that on its face make things 
look relatively difficult. It is easy to overwhelmingly paint an 
overwhelmingly inaccurate picture of someone's record in the law 
because it is very difficult to in many cases in a matter of a sentence 
or two or paragraph or a book justify certain things that are stated.
  For example, as I have said on this floor, I wonder how many people 
would voted if the vote were taken today in this body on having a fifth 
amendment, assuming we did not have a fifth amendment. We all pay 
homage. We just paid homage to the 200th anniversary of the Bill of 
Rights. I wonder how many people would vote in here if we would factor 
our constituents and, say: By the way, we want to have an amendment 
which says when some bad guy is accused of doing something wrong that 
bad guy under oath can stand there and say, ``I am takin' the fifth. I 
ain't saying nuttin'.''
  People may say, ``That is ridiculous. Isn't that an awful thing?''
  Obviously, these are bad guys. These are Mafia, or Colombian drug 
cartel people.
  It is easy to say, ``How could you possibly have a fifth amendment? 
Who would vote for a fifth amendment?''
  Well, the point I am trying to make is a broad point, which is that 
if you take any one case of any one judge, particularly if you are not 
a trained lawyer or an academician, and you look at it, you can 
easily--with positive intentions, not attempting to misrepresent 
anything--come up with a very skewed picture.
  Let us talk about this one case everybody talks about--James Landano, 
a bad guy, convicted in 1978 of shooting a police officer. I was riding 
through New York City yesterday on the way to visit my son, who is 
going to school up in New Haven and going through the Bronx. There was 
a great big billboard of a very eye-catching thing. It gives a number 
of such-and-such cop, and there is a splash of blood across the 
billboard, and it says there is a reward of x thousand dollars for 
anybody reporting someone who has shot a police officer. And if it 
results in an arrest and conviction, which is a good thing, I am all 
for that.
  The point is, the one thing you do not want to do--and there is good 
reason for it--is ever shoot a cop. And I am one who has written laws 
and voted for laws to strengthen the penalties for anybody who shoots 
at a cop, kills a cop, or maims a cop. I am one of the people who has 
increased the funding the families get for police officers killed in 
the line of duty. I do not think there are, well, there are as many as 
sympathetic but nobody more sympathetic than me. I see red when I hear 
someone has shot a cop or has been accused of shooting a cop. This guy, 
Landano, who is not someone, I suspect, you would want your daughter to 
go out with, and not somebody, I suspect, you would invite home for 
dinner, gets accused of shooting a cop. And if Landano committed that 
crime, the son-of-a-gun should fry, in my view. I support the death 
penalty. I think he should be put to death.
  So on the face of it, you start off with this guy who is not the most 
appealing guy in the world, and he appeals to a judge after having been 
convicted of shooting a cop. Now you have a judge who has a 
Constitution, and he sits in front of him and he says this bad guy is 
sitting there, and it is not whether he committed the crime or not, 
although he has been convicted, but a guy who is not appealing. Landano 
comes along and says: Look, I am innocent, and the reason I am innocent 
is that they got a conviction based on false testimony. Somebody who 
testified lied. So Landano says: By the way, not only did this guy lie 
who caused my conviction, but the cops withheld evidence and the 
prosecutor withheld evidence that can prove that I am innocent.
  He presented this evidence to Judge Sarokin, and the judge considered 
it carefully and rejected the petition. The first time out, he said, 
``I do not think you have shown me enough to generate any change in 
outcome here.'' So Landano came back a second time, and this time he 
came back with more proof. This time he did persuade Judge Sarokin that 
the trial he had was unfair because there was false testimony and 
because the prosecution withheld exculpatory evidence, which is a fancy 
way of saying they had facts which they were required to tell the court 
about that would have shed light on the possibility of innocence as 
opposed to the possibility of guilt.
  But what you hear up here in the Senate--not from my friend from 
Utah, because he knows the law much too well--you would think after the 
judge saying: OK, I think you have presented sufficient evidence and, 
by the way, here is the key to your cell; unlock yourself, let yourself 
go, you are free. He did not say that. He said: Stay in jail; you are 
not going anywhere, you are still under arrest. We are going to give 
you a new trial, though. In this new trial you have a chance to bring 
up this additional evidence.
  So he simply ordered a new trial. Far from being an outrageous 
decision, his ruling was fully vindicated by the New Jersey State 
courts. They looked at the same new evidence and looked at it 
independently. The guy is convicted now, remember. I want to make this 
as basic as I can. This guy, who you would not invite home to dinner, 
is convicted of killing a cop. After that, he says: I have proof, 
judge, that the guy who gave testimony against me lied and, second, 
that the prosecution had other evidence which would have sustained my 
case, and they did not let it come into court.
  So the New Jersey State court, separate and apart from Judge Sarokin, 
a Federal court judge, reached the same conclusion. Now, I want to tell 
you something. If you want to make sure you are getting something 
straight, try to get a State court to overrule a conviction of a guy 
who is not the sweetest guy in the world for killing a New Jersey cop. 
The reason they did it is they are required to do that. They are 
required to do that.
  So independently and separately from this Federal judge, who is one 
of the most respected minds, most respected intellects, most respected 
judges in the entire Federal court system, a New Jersey State court 
reaches the same conclusion. And it ruled that Landano was entitled to 
a new trial. Judge Sarokin's courageous act did not free a cop killer. 
Judge Sarokin found a fundamental flaw in a highly charged trial, and 
he sent it back so it could be retried. That is what Federal judges are 
supposed to do. It is not popular to do that. No one is going to be 
happy with that--I will end with this--and I guess we are going to get 
a lot of chances to debate this afterward, unfortunately, once we get 
cloture. Any of you that saw that movie about the military called ``A 
Few Good Men,'' there is a young guy preparing for trial and he is the 
prosecutor. He is assigned to defend these military guys, and Jack 
Nicholson is the bad guy in the movie. He stands up there and he is 
going through this with the young prosecutors and young defendant, 
going through his preparation with the young people in his unit, and 
one says: ``We can prove they did not do it.'' He turns and says, ``It 
is not enough to prove our client did not do it. A good defense 
attorney not only has to prove that; he also has to prove who might 
have done it, or at least give the jury an answer as to who might have 
done it.''
  The reason everybody gets upset when you overturn a jury trial is 
because the jury wants to know ``who done it.'' The public wants to 
know ``who done it.'' When you say this guy did not do it and we do not 
know who did it, it leaves people uneasy.
  The judge did what he should have done, what he had to do, and it was 
independently arrived at. It was the same conclusion by the other State 
court judges. It is not popular, but it is the right thing. We want 
judges to do the right thing.
  The ACTING PRESIDENT pro tempore. The Senator from Utah controls 
10\1/2\ minutes, and the Senator from Delaware controls 1\1/2\ minutes.
  Mr. HATCH. Mr. President, one of the games that is being played 
around here is that whenever the majority leader wants to move 
something along, he files cloture, whether or not anybody has decided 
to use extended debate. I have heard the majority leader --who is a 
person I have great regard and respect for--say how beset we are with 
filibusters in this body.
  Naturally, in the last week or so of a session, there is going to be 
the threat of some filibusters. It is one of the few tools that the 
minority has to protect itself and those the minority represents. But 
this is not a filibuster. I find it unseemly to have filed cloture on a 
judgeship nomination--where I have made it very clear that I would work 
to get a time agreement--and make it look like somebody is trying to 
filibuster a Federal court judgeship.
  I think it is wrong, and I think it is wrong to suggest in the media 
that this is a filibuster situation, because it is not.
  I personally do not want to filibuster Federal judges. The President 
won the election. He ought to have the right to appoint the judges he 
wants to.
  On the other hand, when his appointed judicial activist judges ignore 
the law and substitute their own policy preferences for that of the 
law, then it is incumbent upon the Members of the U.S. Senate to stand 
up and say, ``Hey, that is wrong,'' because if judges will not abide by 
the law, why should anyone else?
  What are judges for other than to implement the laws, to abide by 
them, to interpret them, not to make them. They are not elected. This 
man, Judge Sarokin, was appointed for life as a district court judge. 
Nobody can take that away from him. The reason we appoint Federal court 
judges for life is because we know they will have awesome power to 
interpret the laws made by people like you, Mr. President, and myself, 
and others, who are duly elected and must stand for election on their 
ideas to make the laws.
  It is our job to make the laws, not Judge Sarokin, and yet time after 
time after time, this judge, who I admit is a very bright man, who I 
admit is a nice man--I liked him personally, so this is it not a 
personal attack--time after time this judge has ignored the law which 
was clear on its face and has substituted his own policy preferences 
for that of the law.
  If we ever allow that to occur on a broad-based basis, this country 
will no longer be a country that is ruled by law. Judges have 
extraordinary power. Federal judges have even more extraordinary power 
than State judges. They are interpreters of the laws, not makers of the 
laws. They should not act as judicial legislators in black robes.
  That would indeed scare anybody, because Federal judges are 
unaccountable to the voting population. And that is why we believe the 
legislative branch at the Federal level should be especially vigilant, 
whereas in many States the voters directly elect judges who run for 
office just like any other common politician.
  In the Federal courts we nominate these people, and we confirm them 
for their lives. We give them full salary when they retire. These are 
some of the most important positions in our society.
  And here we have a judge who lacks the support of some of the most 
important organizations in New Jersey, Pennsylvania, Delaware, and 
other areas of this country because he has been a judicial activist who 
ignores what the law is.
  Now, we will have to fully debate this matter after cloture is 
invoked, and I am recommending to all Members of our side to vote for 
cloture because we should never have had a cloture vote on this 
judgeship. We should have worked it out and had a reasonable debate. We 
now have to have postcloture debate because of this ridiculous use of 
the cloture rule and allow Senators an opportunity to stand up and say 
pro or con what they want to about this particular nomination.
  But nobody should misconstrue this. These nominations are extremely 
important. This is one of the most important obligations the Senate 
has, and under the Constitution we are the only ones who have this 
obligation of confirming Federal court judges.
  As to the basic arguments that Judge Sarokin's supporters have 
offered on behalf of this nomination, if I can define them, I would 
define them as three. The first argument is rooted in the fact that the 
White House and Judge Sarokin's other supporters have successfully 
solicited letters of support for Judge Sarokin from a number of judges 
and lawyers. If these people support Judge Sarokin, the argument goes, 
he cannot be all that bad.
  Nevertheless, this ad homen argument is no substitute for the careful 
detailed analysis of Judge Sarokin's troubling record. A number of 
Judge Sarokin's supporters used misleading claims like the claim that 
Judge Sarokin has been reversed or vacated in less than 3 percent of 
his opinions, since a large but undisclosed number of Judge Sarokin's 
opinions were not even appealable. Since another presumably even larger 
a number of opinions were not even appealed, the 3 percent of Judge 
Sarokin's supporters cite is virtually meaningless. A far more relevant 
figure is what percentage of appeals from his decisions are successful. 
Judge Sarokin's supporters are strikingly silent on this matter.
  Even more relevant is what Judge Sarokin's does in these major cases. 
Here the single most telling report is from the New Jersey Law Journal 
which says that Judge Sarokin's--and let me give a direct quote--``may 
be the most reversed Federal judge in New Jersey when it comes to major 
cases.''
  Judges hear a plethora of cases that are not major, innumerable cases 
that really do not mean all that much in the overall constitutional 
makeup of the country. But in major cases, the New Jersey Law Journal 
said he may be the most reversed Federal judge in New Jersey.
  Third, Judge Sarokin's supporters sweep over his actual opinions and 
instead make unsubstantiated claims on his overall record. I believe 
the careful attention to Judge Sarokin's willful defiance of precedents 
in particular cases and the activist pursuit of ideological agenda is 
the best measure of what type of judge he really is. We find him 
wanting. We find him an activist judge who substitutes his own policy 
preferences, his own visceral preferences, for that of what the law 
really is.
  Mr. President, I suggest the absence of a quorum and ask unanimous 
consent that the time be divided equally.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The time is divided equally.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The Chair recognizes the Senator from New Jersey.
  Mr. BRADLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. BRADLEY. Mr. President, since the debate has begun, the 
distinguished Senator from Utah has quoted the New Jersey Law Journal 
twice.
  I will ask at this time to have printed in the Record the strong 
endorsement of this nomination by the New Jersey Law Journal in which 
the final sentence is ``Lee Sarokin is a fine district judge who has 
served with distinction for a decade and a half. He would be a great 
judge for the Third Circuit.''
  I ask unanimous consent that this endorsement of Judge Sarokin's 
nomination be printed in the Record so that when we hear references to 
that quote from the New Jersey Law Journal, remember the New Jersey Law 
Journal has endorsed the candidacy for this nomination.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

            [From the New Jersey Law Journal, Aug. 1, 1994]

                         The Sarokin Nomination

       President Bill Clinton, on the recommendation of Sen. Bill 
     Bradley, has nominated United States District Court Judge H. 
     Lee Sarokin in the Court of Appeals for the Third Circuit. 
     The Senate Judiciary Committee will tomorrow hold a hearing 
     on this nomination. We support confirmation.
       As a federal judge, Sarokin has written more than 2,000 
     opinions, 250 of which have been published, and has presided 
     over jury and nonjury trials, both civil and criminal. Judge 
     Sarokin was twice chosen to chair the Third Circuit Judicial 
     Conference. Recently he was named the national chair of the 
     conference of the Federal Judge's Association. Chief Justice 
     William Rehnquist has named Sarokin to two committees on 
     judicial administration. As chair of the * * * management 
     subcommittee, Sarokin was charged with implementation of the 
     Civil Justice Reform Act.
       While this litany impressed, the judgment of his peers 
     impresses more. Judge Sarokin received a unanimous ``well-
     qualified'' rating from the American Bar Association, the 
     highest rating possible. His nomination has been endorsed by 
     Judges Ruggero J. Aldicers, John Gibbons, Joseph Weis, Jr., 
     Leon Higginbotham and Leonard Garth, all the living former 
     chief judges of our circuit.

       Lee Sarokin is a fine district judge who has served with 
     distinction for a decade and a half. He would be a great 
     judge for the Third Circuit.
  The ACTING PRESIDENT pro tempore. The Chair recognizes the Senator 
from Utah.
  Mr. HATCH. Mr. President, one comment. The facts count here, not 
endorsements. The facts are the law journal found he has been reversed 
in major cases basically because he decided them wrongly. Those are the 
facts.
  It does not make any difference what they say otherwise. This is a 
bright man. This is a nice man. But do we want another judicial 
activist who ignores what the law is on the bench? And that is what is 
involved here. In this case, this man is an extreme judicial activist, 
I think a judicial activist in the worst sense of that term.
  The ACTING PRESIDENT pro tempore. The Chair announces that the 
Senator from Utah controls 2 additional minutes, and the Senator from 
Delaware controls 30 seconds.
  Mr. HATCH. I am happy to yield my colleague time if he wants it.
  The ACTING PRESIDENT pro tempore. The Senator from Delaware.
  Mr. BIDEN. Mr. President, it is my expectation that we will get 
cloture on this. I imagine we are going to have some discussion after 
cloture so I will reserve any remarks I have until then.
  I am prepared to yield back the remaining 5 seconds I probably have.
  The ACTING PRESIDENT pro tempore. The Senator from Delaware yields 
back his time.
  Is the Senator from Utah willing to yield back time?
  Mr. HATCH. I am happy to yield back my time.

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