[Congressional Record Volume 142, Number 82 (Thursday, June 6, 1996)]
[Senate]
[Pages S5903-S5904]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   DIFFERENCES IN JUDICIAL PHILOSOPHY

  Mr. HATCH. Mr. President, I want to talk about another matter very 
near and dear to my heart. For some time now, I have been discussing 
the differences in judicial philosophy between the judges selected by 
Republican Presidents and the Presidents from the other side of the 
aisle. These differences can have real and profound consequences for 
the safety of Americans and their neighborhoods, homes, and workplaces. 
These differences, I might add, have serious consequences.
  During these various speeches that I have given, I called attention 
to certain Clinton judges who have long track records of being soft-on-
crime, liberal activists. One of these judges is Judge H. Lee Sarokin, 
a Clinton appointee to the U.S. Court of Appeals for the Third Circuit. 
Judge Sarokin has displayed an undue and excessive sympathy for 
criminals and is too willing to impose his own moral beliefs onto the 
law and onto our communities.
  Judge Sarokin is the judge, this body may recall, who, before he was 
elevated by President Clinton to the third circuit, ruled that a 
homeless man could not be barred from a public library because of his 
body odor even though it was offending everybody in the library.
  Judge Sarokin also issued several other activist decisions as a 
district judge, including some released convicted murderers from jail. 
I opposed his elevation to the third circuit because I believed he 
would continue his own special brand of judicial activism. My 
prediction has been proven true time and time again as Judge Sarokin 
voted to aggressively expand double jeopardy and to overturn several 
murderers' convictions.
  This week Judge Sarokin informed President Clinton that he will 
retire at the end of July after 22 months as a circuit court of appeals 
judge. Judge Sarokin claimed that he was retiring because of the 
criticism that I and others have made against his activist decisions.

[[Page S5904]]

  In his letter he wrote that he and others on the judiciary were being 
``Willy Hortonized.'' He went on to write, ``I regret that there are 
those who are willing to sacrifice my life's work and reputation for 
their own political gain.'' Judge Sarokin also claimed that he ``had 
intended to remain on the court so long as I was fiscally and mentally 
able. But the constant politicization of my tenure has made that 
lifetime dream impossible for me.''
  Give me a break. Mr. President, Judge Sarokin has illustrated once 
again his failure to appreciate the proper role of a judge. As a 
sitting judge he has issued a partisan political screed. But the 
partisanship of Judge Sarokin's letter is also illustrated by what the 
judge fails to mention. As early as March 4, 1996, this year, it was 
reported that Judge Sarokin wished to take senior status and that he 
wanted to move to California so that he could be near his family. Yet 
this fact is not mentioned by the judge in his letter to President 
Clinton. According to a March 4 article in the New Jersey Law Journal 
``Sarokin confirmed through a secretary that he will take senior status 
effective September 1st.'' This article appeared long before my March 
29 floor speech which called attention to Judge Sarokin's activism on 
the third circuit. In fact, in my speech, I mentioned the judge's plan 
to step down because it had already been announced and articulated. 
Essentially, Judge Sarokin had hoped that he could take senior status 
which would have reduced his workload to 25 percent of an active 
judge's caseload and move his chambers to California--In other words, 
from the third circuit on the east coast to California on the west 
coast.
  In other words, Judge Sarokin wanted quasi-retirement in California, 
the State of his choice. Unfortunately for Judge Sarokin, his 
colleagues on the third circuit were not thrilled with his early 
retirement plans, and on the 22d unanimously voted to deny Sarokin's 
request to move his chambers to California.
  I take that out of the Recorder of May 6, 1996.
  As one unnamed colleague on the court told a reporter, ``It took a 
lot of chutzpah for him to leave after only 22 months on the bench.'' 
Boy, do I agree with that statement. Former law clerks and colleagues 
told the press that prior to the third circuit's decision Sarokin had 
already sold his home in New Jersey--in short, prior to his stirring 
announcement Judge Sarokin wanted to reduce his workload and was intent 
on moving to California. Yet, Judge Sarokin failed to make any 
reference to this episode or these matters in his letter to President 
Clinton. In fact, Judge Sarokin had the nerve to say that he ``had 
intended to remain on the court so long as he was physically and 
mentally able.'' Bear in mind his request to take senior status had 
been denied just 6 weeks ago. Perhaps Judge Sarokin thought he could 
escape scrutiny for this obvious lack of forthrightness.
  Judge Sarokin's letter, its assertions as well as its omissions, 
demonstrates how some view Federal judges as philosopher-kings whose 
decisions and prevarications should never be challenged. I personally 
do not hold this view, and I do not think anybody in this body does.
  I have no ill feelings for Judge Sarokin personally, and I wish him 
much happiness in his retirement. But it should be pointed out that he 
served darned little time on the third circuit Court of Appeals, and 
will receive higher retirement because he went from the district court 
to the Third Circuit Court of Appeals. And we went through an awful 
situation as he was elevated to that court. Mr. President, but I do not 
wish him any harm, and I wish him happiness in his retirement. But what 
is far more important at this point is not Judge Sarokin's retirement 
but who will replace him.

  The American people will decide this fall who will be our President, 
and along with that choice comes the choice of the President's judges. 
The choice this fall will be between judges who will be tough on crime 
and judges who are softer on crime, judges who will apply the law and 
not legislate from the bench, or judges like Lee Sarokin who have been 
activists from the day they got on the bench.
  Mr. President, I just want to mention one other thing. This week 
there was the very important argument in the Supreme Court by the 
President's Solicitor----
  I ask that we have order. This is very important.
  The PRESIDING OFFICER. The Senate will be in order.
  The Senator from Utah.
  Mr. HATCH. This argument before the Supreme Court was made by the 
President's Solicitor General, who I know was pushed into this position 
by others who apparently have enough power in the Solicitor General's 
Office beneath him to force him into this untenable situation.
  No sooner--in a little over a month--after enacting the antiterrorism 
bill, with clearly the most part of that bill being habeas corpus 
reform, the Solicitor General walks into the Supreme Court and 
undermines that very reform, with an argument that would create a 
tremendous loophole, by hoping to convince the Supreme Court that they 
can ignore Marbury versus Madison and grant themselves jurisdiction 
that the Constitution does not grant and neither does the Congress. 
And, frankly, I could not believe it when I heard the Solicitor General 
make the argument that he did. I feel badly that I did not argue for 
our side in Court but I just did not want to have it look like I was 
grandstanding, or something like that.
  The fact of the matter is that, if the Solicitor General's position 
is accepted, there will be a direct appeal to the Supreme Court 
mentioned nowhere in the Constitution, nowhere in statutory law because 
we are not allowed under Marbury versus Madison to expand the 
jurisdiction of the Supreme Court, or to detract from it. I will 
surprised if the Supreme Court grants that. But there was not an 
effective argument in my opinion against that position in the Supreme 
Court even though the law is pretty clear. The Constitution is clear. 
That Marbury versus Madison, the all-time most important, or at least 
one of the most important, Supreme Court cases is pretty clear. The 
result and the effect of that argument by the Solicitor General was 
that the Solicitor General sided with the convicted murderer in that 
case, who is now 13 years in prison after he was condemned to death but 
through multiple habeas corpus appeals to the Court, and there is 
basically no reason to believe that he is not the murderer, has avoided 
his sentence. Naturally, every one of these murderers claim--not every 
one, but a great many of them claim--they never did it. But the facts 
bespeak otherwise.
  It was really something to watch the Solicitor General in there 
arguing on behalf of the convicted murderer who has 13 years on death 
row and multiple appeals. This is precisely what the President told me 
he wanted to end, and I did end it while still protecting their 
constitutional rights and giving them a direct appeal all the way up to 
through the State courts, a collateral habeas corpus appeal all the way 
up through the States courts, both of them all the way to the Supreme 
Court, and then a full right to take a separate Federal habeas corpus 
appeal all the way up to the Supreme Court, and then a protective right 
by a three-judge circuit court of appeals panel, if they have newly 
discovered evidence that could not otherwise have been recently 
uncovered, or there is some retroactive opinion of the court that 
applies. That is what bothers me.
  So who picks these judges and who picks these Solicitor Generals? Who 
picks leadership in anticrime in this next Presidential race is 
extremely important. I do not think you need a better example than Lee 
Sarokin in this country today to show the importance of that particular 
choice to all Americans, nor do I think you need a better prime example 
than the Supreme Court argument of this administration and this 
Solicitor General before the Supreme Court this last week.
  Mr. President, I yield the floor.
  Mr. LOTT addressed the Chair.
  The PRESIDING OFFICER. The Senator from Mississippi.

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