[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.
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