Bench Memos

NRO’s home for judicial news and analysis.

Leahy and Judges


A couple thoughts in the wake of the unsurprising news that longstanding nominees William Haynes (Fourth Circuit), Terrence Boyle (Fourth Circuit), and William G. Myers III (Ninth Circuit) have joined Michael Wallace (Fifth Circuit) in asking President Bush not to resubmit their nominations:


1.  In support of their own agenda of liberal judicial activism, Senate Democrats engaged in unprecedented measures of obstruction and distortion against the President’s highly qualified nominees.  It’s highly regrettable that these nominees were so poorly treated, but it’s entirely understandable that they have decided that the best course is to withdraw.  It’s all the more necessary that Senate Democrats handle the replacement nominations fairly and expeditiously.


2.  Chairman Leahy is calling for “consensus candidates”.  Let’s recall the sort of candidates he and his Democratic colleagues consider “excellent”:


On May 5, 1994, President Clinton nominated district judge H. Lee Sarokin to be a judge on the U.S. Court of Appeals for the Third Circuit. As Senator Hatch accurately stated at the time, Sarokin had earned a reputation as a stridently liberal judicial activist. Indeed, Sarokin described himself as a “flaming liberal” as a judge. The Third Circuit had lambasted Sarokin for “judicial usurpation of power,” for ignoring “fundamental concepts of due process,” for destroying the appearance of judicial impartiality, and for “superimpos[ing his] own view of what the law should be in the face of the Supreme Court’s contrary precedent.” The New Jersey Law Journal had reported that Sarokin “may be the most reversed federal judge in New Jersey when it comes to major cases.” A broad range of police and victim’s groups announced their opposition to his nomination.

Here’s a fuller memo on Sarokin’s record that Senator Hatch submitted on the Senate floor. If you read nothing else, be sure to read about Sarokin’s wildly lawless ruling (reversed by the Third Circuit) in Kreimer. There Sarokin ruled that the Morristown public library couldn’t enforce its written policies to expel a homeless man who regularly engaged in offensive and disruptive behavior and whose odor was so offensive that it prevented the library patrons from using certain areas of the library and prohibited library employees from performing their jobs. “[O]ne person’s hay-fever is another person’s ambrosia” was among Sarokin’s justifications for preventing a community from setting even minimal standards.

Senate Democrats regarded Sarokin as an ideal judge. Senator Leahy, for example, called him “a judge of proven competence, temperament, and fairness” and “an excellent choice.” A mere five months after his nomination, Judge Sarokin was confirmed over Republican opposition.


Then there’s Eleventh Circuit judge Rosemary Barkett, whose laughably terrible record at the time of her nomination (and exacerbated since her appointment, from what I hear) defies easy summary, so I refer you to my previous post.


The simple fact is that Leahy and company have amply demonstrated that they do not deserve to be taken seriously as arbiters of the qualifications of judges.


Tags: Whelan


Subscribe to National Review