Leading Democrats Vote Against Clinton's Strident Liberal Nominee

Judge Lee Sarokin's stormy path to, and quick exit from, Third Circuit

[H. Lee Sarokin died on June 20. May his memory be a blessing to his family and friends.

I drafted this post weeks before Sarokin’s death. It draws heavily on various criticisms of his record that I have previously published. Beyond deferring this post for a week, I have concluded that I should not try to muffle my criticisms.]

Picking his fights carefully, my boss Senator Orrin Hatch waged only two battles against lower-court nominees during Bill Clinton’s first two years in office. As with his nomination of Rosemary Barkett to the Eleventh Circuit, Clinton’s pick of Lee Sarokin for a Third Circuit seat provided a very big target.

With the 1994 elections one month away, six Democrats ended up voting against Sarokin. And they weren’t just any six Democrats. They included majority whip Wendell Ford, past Democratic leader Robert Byrd, future Democratic leader Harry Reid, and, perhaps most notably, a three-term senator from Tennessee, Jim Sasser, who envisioned becoming the Senate majority leader in 1995 after winning re-election to a fourth term.

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For a president who had committed to “change the face” of the lower courts by appointing younger and demographically diverse judges, an old white guy was an odd choice for the Third Circuit. Sarokin had been a federal district judge in New Jersey since 1979, and he was already 65 years old. He would become eligible to retire, with an annual pension equal to the full salary for his position, in November 1994.

But Sarokin had one big thing going for him. He wasn’t just an old white guy. He was an old white guy who was a longtime pal of Senator Bill Bradley of New Jersey. As finance chairman of Bradley’s 1978 campaign, Sarokin had helped Bradley get elected to the Senate in the first place. Doing a favor for Bradley is why Carter had appointed Sarokin to the federal bench in 1979, and it’s also why Clinton had decided to promote him to the Third Circuit.

Judge H. Lee Sarokin

As documented more fully in a long memorandum by yours truly that Senator Hatch published in the Congressional Record a month before the floor debate on Sarokin’s nomination, Sarokin in his years as a district judge had earned a reputation as a stridently liberal judicial activist who pursued his own ideological agenda in lieu of applying the law. On a broad range of telltale issues, such as crime, quotas and reverse discrimination, pornography, and minimal standards of decency and behavior in public life, Sarokin sought to impose his own moral vision. In so doing, he ignored, defied, and even stampeded binding precedent and higher authority, and he flaunted his own biases and sentiments on the sleeve of his judicial robe.

In taking the extraordinary step of removing him from a case, the Third Circuit lambasted him 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 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.

In perhaps his most infamous ruling, Sarokin declared that the Morristown (N.J.) 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 library patrons from using certain areas of the library and employees from doing 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. (The Third Circuit reversed Sarokin’s ruling.)

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The floor debate on Sarokin’s nomination on October 4, 1994, held several surprises for me.

Just before the debate began, a colleague and I were at Senator Hatch’s desk on the Senate floor when Senator Bradley approached us. “I just want to thank you,” he said. Puzzled and wondering if he was confused as to who we were, I responded, “Senator, there’s no reason to thank us. We’re with Senator Hatch.” Bradley replied that he knew that but wanted to thank us for the manner in which we had made the case against Judge Sarokin’s nomination. I was grateful for the very gracious words from Bradley, who from his extraordinary career as a college and professional basketball player knew fair play when he saw it.

I was then surprised to learn that Democrats had filed a cloture motion to ensure a prompt final vote on Sarokin’s nomination. As Senator Hatch explained, he had been trying to work out a time agreement to govern debate on the nomination, and he did “not have, and [had] never had, any intention of filibustering the Sarokin nomination.” Hatch further declared:

I will vote in favor of cloture on this nomination, and I urge all of our colleagues on both sides of the floor to do so as well….

I find it unseemly to have filed cloture on a judgeship nomination—where I have made it very clear that I would work to get a time agreement—and make it look like somebody is trying to filibuster a Federal court judgeship.

When the vote on the cloture motion occurred, it was no surprise that it passed overwhelmingly, 85 to 12. But what was jarring was that three of the votes against cloture came from Democrats—majority whip Wendell Ford of Kentucky, Jim Sasser of Tennessee, and Richard Shelby of Alabama. So these Democratic senators were not only going to vote against Sarokin’s confirmation. They were so eager to advertise their opposition to Sarokin that they even voted against cloture. Indeed, I had to suspect that they withheld their consent to a time agreement precisely so that they could vote against the cloture motion.

Sarokin’s nomination was confirmed later that day by a vote of 63-35. Three more Democrats—Richard Bryan and Harry Reid of Nevada, and Robert Byrd of West Virginia—joined Ford, Sasser, and Shelby in voting no. But 14 Republicans voted to confirm Sarokin, at least in part because Bradley had worked them hard. “I know that I shouldn’t have voted for him,” Republican whip Alan Simpson told us, “but Bradley’s a friend and he asked me to.”

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Senate Democrats held a 56-to-44 margin in the Senate, so I never expected that we would defeat the Sarokin nomination. Our goal instead was to make Clinton and Senate Democrats pay a political price for supporting him. The fact that six Democrats—including the Democratic whip and the former Democratic leader—voted against the Sarokin nomination was the first clear sign that we had succeeded.

But perhaps nothing was more revealing than Tennessee senator Jim Sasser’s votes against cloture and confirmation. Sasser was a liberal, especially compared to other southern Democrats. He had voted against the Supreme Court nominations of Robert Bork and Clarence Thomas. On a scale of 1 to 100, he had an American Conservative Union rating of 9 and a U.S. Chamber of Commerce rating of 17 (1990 data).

After beating incumbent Bill Brock by more than five percentage points in 1976, Sasser had breezed to re-election in 1982 by 24 points and in 1988 by 30 points. With Senate majority leader George Mitchell set to retire, Sasser was a leading candidate to succeed him. But he had to win re-election first, and he had discovered that Clinton’s deep unpopularity presented him a real challenge in defeating his Republican opponent, political novice and heart surgeon Bill Frist.

Frist made Sasser’s support of bad judges a prominent part of his campaign. He faulted Sasser for recommending Jimmy Carter’s appointment of a federal district judge in Nashville, John T. Nixon, who Frist said had “repeatedly hamstrung the courts by delaying action in death penalty cases,” and he charged that Sasser’s vote for Rosemary Barkett’s nomination showed that “he still hasn’t learned his lesson.”

Frist called on Sasser to vote against Sarokin. Sasser determined that he couldn’t afford to vote for Sarokin and, indeed, that he had to do his best to pretend that he was vehemently against Sarokin.

It didn’t work. In a huge upset, Frist defeated Sasser by more than 14 points.

***

As it happens, Sarokin didn’t remain on the Third Circuit for very long. In early 1996, not much more than a year after he joined the Third Circuit, Sarokin decided to take senior status and sought permission to move his chambers from Newark all the way across the country to San Diego. In what Third Circuit chief judge Dolores Sloviter (a Carter appointee) revealed was a unanimous vote, the 11-member council of the Third Circuit denied Sarokin’s request. A court administrator told the New York Times that Sarokin’s request was “highly unusual.”

Some six weeks later, Sarokin sent a letter to President Clinton stating that he would retire from the Third Circuit (rather than take senior status) on July 31, 1996. Running for president that year, Bob Dole had ridiculed Sarokin’s library ruling and enrolled Sarokin in Bill Clinton’s “judicial hall of shame.” In his letter to Clinton, Sarokin grandiosely claimed that he had been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and stated his concern that his decisions would be used against Clinton in the upcoming presidential campaign. So rather than ignore the criticism and do his job, he decided to retire, lest his opinions hurt Clinton’s re-election prospects. So even his stated reason for retiring was intensely political.

In a house editorial, the New York Times chastised Sarokin for his retirement: “Federal judges granted the protection of lifetime tenure by the Constitution should be made of sterner stuff.” It also questioned his “candor,” as it observed that some of his colleagues suspected that the real reason for his retirement was the Third Circuit’s rejection of his “nervy request” to transfer his chambers to San Diego.

Al Kamen of the Washington Post noted that White House officials were blaming Bradley for his “neat idea” of “promoting a 65-year-old liberal” to the Third Circuit. Criticizing Sarokin’s decision to retire, Kamen pointed out that the Constitution “gives judges lifetime tenure to insulate them from politics, though maybe not from winters in New Jersey.”

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Sarokin’s short tenure on the Third Circuit worked out far better for him than it did for his admirers. On his retirement, Sarokin moved to San Diego and lived there until his recent death at age 94. Because he retired as a federal appellate judge, his annual pension was more than $8,000 higher than it would have been as a federal district judge. Over the 27 years since Sarokin’s retirement, the cumulative difference made for quite a generous bonus for less than two years of service on the Third Circuit.

Had Sarokin not sought the Third Circuit seat, whoever Clinton nominated instead would surely have been confirmed by the Democrat-controlled Senate in 1994. But Republican control of the Senate over Clinton’s last six years meant that Clinton was unable to get his preferred successor to Sarokin confirmed. After the Senate returned his nomination of Robert Raymar in 1998, Clinton struck a deal with Republicans and appointed Maryanne Trump Barry—yes, Donald Trump’s sister—to the seat. Ronald Reagan had appointed Barry as a federal district judge in 1983.

So Sarokin could take direct credit for getting one Trump into higher office. And two decades later the liberal judicial activism that he exercised well past the point of caricature may well have given a critical boost to another Trump.