Bench Memos

Putting Judicial Nominees in Perspective, Part II

Time for a bit more perspective on judicial nominees (on top of this post on Rosemary Barkett).

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.

Of the eight current Democrat Senators on the Senate Judiciary Committee, six (Leahy, Kennedy, Biden, Kohl, Feinstein, and Feingold) served in the Senate at the time of the nominations of Barkett and Sarokin, and all six strongly supported their nominations. (Sen. Kennedy missed the vote on Sarokin.) It is, I think, obvious from their performance that the two new members, Schumer and Durbin, would have done so as well. These Senators simply do not deserve to be taken seriously as arbiters of the qualifications of judges. And their reckless attacks on President Bush’s outstanding nominees are doubly shameful in light of their support for nominees like Barkett and Sarokin.

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