[Congressional Record Volume 144, Number 9 (Tuesday, February 10, 1998)]
[Senate]
[Pages S549-S561]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  NOMINATION OF FREDERICA A. MASSIAH-JACKSON, OF PENNSYLVANIA, TO BE 
 UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA

  The PRESIDING OFFICER. The clerk will report the nomination.
  The legislative clerk read the nomination of Frederica A. Massiah-
Jackson, of Pennsylvania, to be United States District Judge for the 
Eastern District of Pennsylvania.
  Mr. HATCH. Mr. President, I rise today to express my strong concerns 
with respect to President Clinton's nominee to be a U.S. district court 
judge for the Eastern District of Pennsylvania--Judge Frederica 
Massiah-Jackson. I voted for this nominee in committee, but on the 
basis of information that has been presented to the committee since 
Judge Massiah-Jackson's hearing, I now have serious reservations about 
her nomination.
  Judge Massiah-Jackson, who currently serves as a State court trial 
judge in Philadelphia, was nominated by President Clinton on July 31, 
1997, to serve in the Eastern District of Pennsylvania. The Judiciary 
Committee received her completed paperwork on August 15 and began 
processing her nomination around mid-September. The committee began, in 
bipartisan fashion, to review what available information there was on 
her background, her qualifications, and her experience.
  The committee's assessment of that information was directed from the 
outset to serious allegations that were leveled against Judge Massiah-
Jackson. In particular, the committee's bipartisan investigative team 
followed up on allegations that Judge Massiah-Jackson was biased 
against law enforcement, that she was unduly lenient in sentencing 
career criminal offenders, and that she lacks proper judicial 
temperament, as shown with her use of profanity while sitting on the 
bench.
  Despite attempts to investigate seriously these allegations, no one 
was willing to come forward publicly during the initial investigation 
with specific and credible evidence or information showing a general 
bias against law enforcement. In fact, Judge Massiah-Jackson, when 
confronted with this allegation, had denied having such a bias.
  I was particularly troubled by a newspaper account reporting that 
Judge Massiah-Jackson had identified two undercover officers in open 
court and warned the spectators to watch out for them. No one, however, 
came forward to substantiate those charges.
  But the committee's investigation did unearth some very troubling 
information. Judge Massiah-Jackson herself admitted to using profanity 
at least once while sitting as a judge--she admitted to cursing at a 
prosecutor in open court; it was not pleasant, and the profanity was 
not incidental profanity--but she expressed contrition about that 
event. Indeed, she promised the committee that, if confirmed, she would 
act appropriately as a Federal district judge.
  Now, I take charges of intemperance from the bench seriously. Judges, 
by their very position, must remain above the fray. They must, by their 
demeanor and comportment, preside with dignity over their courtrooms 
and set an example for the attorneys and witnesses to follow. 
Nevertheless, as a former litigator, I know that in the rough and 
tumble world of courtroom advocacy that sometimes things can get a bit 
out of hand. That at least places such untoward remarks in some kind of 
context. Judge Massiah-Jackson assured the committee that she would 
conduct herself in an appropriate manner in the future, and that such 
mistakes as had occurred were early in her tenure on the bench and that 
she would never allow that to happen again.

  The committee's investigation also confirmed that Judge Massiah-
Jackson's sentences, while not grossly out of line with those imposed 
by other State judges, were indeed very lenient on average.
  By the time the committee held a hearing on Judge Massiah-Jackson, it 
was clear to me that she had exercised questionable judgment in a 
number of cases, that she was softer on crime than I would wish a 
Federal judge to be, and that there were some serious questions about 
her ability to preside over a courtroom with the level of decorum that 
our citizens have the right to expect.
  It was clear to me, in a word, that Judge Massiah-Jackson would never 
be my nominee to the Federal bench. But the Constitution does not vest 
judicial appointment authority in the Senate. She is President 
Clinton's nominee. I have never viewed my advise-and-consent 
responsibilities as an opportunity to second-guess whoever is the 
President--so long as he sends us nominees who are well qualified to 
serve and whose views, while perhaps not my own, reflect a commitment 
to uphold the Constitution and abide by the rule of law.
  For that reason, I anticipated that the nominee's responses during 
her hearing would be extremely important to my own vote. To my mind, 
those responses would determine whether there was reason to expect that 
Judge Massiah-Jackson could yet be a credit to the Federal bench.
  During her hearing, Judge Massiah-Jackson was questioned extensively 
about her sentencing record in various cases, she was asked about 
charges she was antiprosecution, and she was asked to explain the 
incident in which she had cursed at prosecutors.
  After the hearing, members of the committee posed further questions 
in writing, to which she responded.
  In a nutshell, Judge Massiah-Jackson again apologized for her use of 
profanity in the courtroom and she made every effort to persuade us she 
has the highest respect for law enforcement and for the difficult job 
that police officers have to do in our country.
  Of particular significance to me, Judge Massiah-Jackson expressly 
disputed the published press report that indicated she had used her job 
as a State judge to expose the identities of undercover police 
officers--in open court, I might add--and to warn the spectators 
against them. In response to a written question from Senator Thurmond, 
she flatly denied that such an event had occurred.
  On the faith of those assurances and the assurances of those who knew 
her and know her, and while reviewing the issue very closely, I voted 
with a majority of my colleagues to report her nomination favorably out 
of the committee.

[[Page S550]]

  I am disappointed to say that with the benefit of hindsight, 
information has emerged since the Judiciary Committee held its hearings 
on this particular nominee of President Clinton that strongly suggests 
to me that she was somewhat less than candid with the committee.
  In addition, since the committee's vote, the committee has been 
virtually deluged with letters from prosecutors and law enforcement 
agencies in Pennsylvania that document a disturbing pattern of open 
hostility toward the law enforcement communities. These condemnations 
have been bipartisan and, in some respects, overwhelming. The 
Pennsylvania District Attorney's Association, as well as the 
Philadelphia District Attorney, have come out in opposition to Massiah-
Jackson, as have the Pennsylvania Attorney General, the Fraternal Order 
of Police and the National Association of Police Officers. That is 
pretty extraordinary. I don't know of any other case where that really 
has happened, although there may be one or more, even in my experience, 
but I don't remember any. Moreover, the committee has now received more 
details about particular rulings by Judge Massiah-Jackson that evidence 
an inability to deal with law enforcement issues fairly.
  First, let me address Judge Massiah-Jackson's possible lack of candor 
with the Judiciary Committee. During the committee's bipartisan 
investigation, Judge Massiah-Jackson was questioned about an article 
that appeared in the local Philadelphia newspaper in 1988 which stated 
that she had told spectators in the courtroom to take a good look at 
the undercover officers who are witnesses in the case and to watch 
themselves. She was asked whether the circumstances described in the 
article were true. Judge Massiah-Jackson told committee staff she does 
not recall the incident, but that she did not understand the concern 
about ``outing'' the officers if they had already testified. 
Thereafter, the committee faxed a copy of the article to Judge Massiah-
Jackson and asked her to write a letter and comment about the 
allegations mentioned within the article. Later, the committee received 
a letter from the nominee that failed to make mention of the incident 
with the undercover police officers.
  Later, at her hearing before the committee, Judge Massiah-Jackson was 
questioned again about her alleged comments about the undercover police 
officers. Unfortunately, Judge Massiah-Jackson failed to answer the 
questions directly and instead she indicated that she respected the 
role of law enforcement officers.
  Dissatisfied by her answers both to the written questions and to the 
questions at the hearing, Senator Thurmond sent the nominee a follow-up 
question directly asking her to explain her statement to courtroom 
spectators to ``take a good look at the undercover officers and watch 
yourselves.'' In her written response, the nominee categorically denied 
ever having made the statement. Her written answer back to the 
committee was as follows: ``I have read the 1988 article and it is 
inaccurate. I would not and did not make any such statement to the 
spectators. I have great respect for law enforcement officers who have 
very difficult jobs and work in dangerous situations.''

  In the wake of recent developments, however, committee staff, in a 
bipartisan investigation, was able to interview the two police officers 
who were mentioned in the news article. Those officers provided written 
statements to the committee that refute Judge Massiah-Jackson's 
representations and corroborate the newspaper story. Both Sergeant 
Rodriguez and his partner, Detective Terrace Jones, an African 
American, felt that the judge's statement jeopardized their lives if 
any of the people in the courtroom were friends, family or associates 
of persons with whom they might negotiate drug buys in the course of 
their undercover work.
  Although I was more than willing to credit Judge Massiah-Jackson's 
denial of the newspaper account, in the face of statements by the two 
officers and the newspaper story, her denial now appears to be somewhat 
less credible.
  I would also point out that Judge Massiah-Jackson unequivocally 
informed the committee during her hearing and during questioning by 
Senator Specter she had never been reversed on a sentencing issue. This 
fact was important because of concerns that Judge Massiah-Jackson was 
particularly bent on leniency in sentencing. In fact, nominees are 
routinely asked, if they are presently judges, to provide the committee 
all of the cases on which they were reversed.
  In response to the committee's request, Judge Massiah-Jackson 
identified 14 cases in which she had been reversed. None involved a 
sentencing issue. When asked a second time in writing whether there 
were any other cases in which she was reversed, Judge Massiah-Jackson 
reported one additional case. Once again, this case did not involve a 
sentencing issue.
  Since her hearing, however, the committee itself discovered that 
Judge Massiah-Jackson's statement that she has never been reversed on a 
sentencing issue is inaccurate. In fact, to date, the committee has 
found she has been reversed in at least two sentencing cases: 
Commonwealth v. Easterling and Commonwealth v. Williams. In both cases, 
Judge Massiah-Jackson imposed a sentence found to be too lenient by the 
appellate court.
  In Easterling, the defendant pled guilty to burglary and criminal 
conspiracy. Despite a serious prior criminal history, including nine 
prior adult property convictions and two adult armed robbery 
convictions, Judge Massiah-Jackson sentenced the defendant to 
concurrent terms of 11\1/2\ to 23 months imprisonment. Her sentence was 
3 years below the standard guidelines and 1 year below even the 
mitigated guidelines. The Supreme Court found that the downward 
departure was unreasonable and vacated the sentence.
  In Williams, the defendant pled guilty to robbery and possession of 
an instrument of a crime. The defendant, in attempting to take the 
victim's purse, viciously slashed the victim with a razor. Despite 
having a prior criminal history, Judge Massiah-Jackson again sentenced 
the defendant to only 11\1/2\ to 23 months' imprisonment and then 
immediately paroled him. The superior court again held that this 
sentence was unreasonable--it was substantially below the minimum 
sentencing guidelines which required a minimum of 4 to 7 years' 
imprisonment for robbery with a deadly weapon. In addition to finding 
that Judge Massiah-Jackson had improperly lowered the defendant's 
offense gravity score, the superior court also found her refusal to 
apply a deadly weapon enhancement to the razor was clearly erroneous. 
The court vacated Judge Massiah-Jackson's unreasonable low sentence.
  In addition to these reversals for illegal sentences, I would like to 
provide an example of why I am so concerned about Judge Massiah-
Jackson's ability to weigh the facts fairly. Recently, the committee 
has received numerous cases that were not previously provided by the 
committee. One of these cases, Commonwealth v. Smith, appears to be a 
particularly egregious case, and I want to tell you about it so you may 
assess for yourself why this nominee is perceived as being unalterably 
hostile to crime fighting.
  In the early evening of September 28, 1990, a 13-year-old boy was 
dragged into the bushes on the grounds of a Philadelphia hospital. The 
assailant raped and sodomized the boy, threatening to kill him. Despite 
the fact that his face was slashed with a box cutter, the boy managed 
to escape from his assailant's clutches. Naked and bleeding, he told 
two female hospital employees who were passing by what had just 
happened and that his attacker, a man, was still in the bushes. Shortly 
thereafter, hospital guards arrived and took the boy to the emergency 
room for treatment.

  The two women then saw a man crawling out of the bushes where the boy 
had told them the attack had occurred. They made eye contact with the 
man from only 2 feet away. The man jumped to his feet and turned to 
walk away from the crowd of security guards and bystanders.
  One of the women informed the guards of the man's appearance. 
Remember, the two women, according to the court of appeals' decision, 
never lost sight of the man until after he was apprehended by police 
just 2 minutes after they spotted him crawling out of the bushes where 
the young boy said he was.

[[Page S551]]

  A Philadelphia police officer arrived on the scene within seconds of 
receiving a police radio call of a ``rape in progress.'' The officer 
stopped the man and told him he was investigating a radio call of a 
rape. The man said that he had not raped anyone. When the security 
guards and witnesses told the officer that the man had just raped a 
young boy, the officer handcuffed him and put him in the back of his 
patrol car.
  Moments later, another officer conducted a safety search of the man 
before placing him in a patrol wagon. He found a box-cutter knife like 
the one used to cut the boy's face and a rag still wet with blood. The 
defendant later confessed. Despite the overwhelming evidence in the 
case, Judge Massiah-Jackson held that the police officer had no 
probable cause to arrest the man. She suppressed the defendant's 
statement, the box-cutting knife, the bloody rag and the out-of-court 
identifications as the fruits of an illegal arrest. I am thankful to 
say her ruling was appealed and reversed, but I am somewhat surprised 
President Clinton would still nominate this judge if he was aware of 
this decision.
  It has been noted that by some that, after the case was reversed, the 
case was assigned to a new judge and the defendant was, I am told, 
acquitted. This is why it would be advisable to consider holding a 
hearing at which the nominee can explain her decision in this case. 
Frankly, notwithstanding the eventual verdict, I fail to see how one 
could conclude that probable cause to arrest the defendant did not 
exist.
  In recent weeks, the Judiciary Committee has received letters from 
virtually every law enforcement office in the State of Pennsylvania and 
several national organizations voicing their opposition to President 
Clinton's nominee. To date, we have received letters from the Attorney 
General of Pennsylvania, the Philadelphia National Fraternal Order of 
Police, the National Association of Police Organizations, the 
Pennsylvania District Attorneys Association, and letters by numerous 
district attorneys around the State, including one from Lynn Abraham, 
district attorney for Philadelphia, who I understand is a Democrat 
herself. All of these letters express opposition to this nominee's 
appointment because of her record of hostility to prosecutors, law 
enforcement and victims of crime.
  Now, although it certainly would have been beneficial to the 
committee if we had this information before Judge Massiah-Jackson's 
hearing, we certainly cannot turn a blind eye to the facts. We ought to 
just make it clear that this committee, in a bipartisan way, takes 
these judgeship nominations very seriously. We continue to investigate 
right up to the time of confirmation. We are not going to fail to look 
at matters when we think there may be some legitimacy to them, as may 
be the case here.
  Make no mistake, I take my floor vote on Judge Massiah-Jackson very 
seriously. When her candidacy was in the committee, I resolved my 
serious misgivings about her nomination in her favor, as I often do, if 
we don't have people who are willing to appear before the committee, 
willing to give statements that are substantiated rather than 
unsubstantiated and if the FBI matters also are unsubstantiated, 
regardless of the accusations. We see in the FBI reports all kinds of 
accusations from everybody, from responsible citizens to crazies, and 
we have to look at those things in a bipartisan, decent, honorable way, 
sift through them, and do the best we can to arrive at the facts and to 
be fair to the nominees.

  While her candidacy was in the committee, like I say, I resolved 
these serious misgivings I had in her favor because we do not--most of 
the accusations, all of the accusations, by and large, were 
unsubstantiated. People were unwilling to come forward and to speak on 
the record. I am not about to oppose a nominee and cast a shadow over 
his or her career when all the Committee has to act on are anonymous 
sources. But now we have people who have been willing to come forward. 
I wish they had done so before. It would have helped the Committee 
straighten out this matter.
  My decision on the committee was based in large measure on the 
representations made by the nominee herself, both in answer to the 
written questions and at her hearing. To the extent that these recent 
developments called the nominee's statements before the committee under 
question--and they do--I am obliged to reconsider my vote. After 
reviewing and considering the information that has recently been 
provided to the committee by law enforcement officers about her conduct 
on the bench, her alleged bias against law enforcement, her flawed 
judicial rulings, and above all, her apparent lack of candor with the 
committee, I can't in good conscience, based on what is available to me 
now, continue to give her the benefit of the doubt.
  I have the highest personal regard for Senator Specter, who has ably 
promoted her candidacy, I believe, with the same understandings that I 
have had up until now, but I have serious questions whether Judge 
Massiah-Jackson is fit for the Federal bench. Senators Specter and 
Santorum have suggested that she be given an opportunity to publicly 
respond to these recent developments. As chairman of the committee, I 
hope that the Senate can accommodate their request. I am not sure that 
we will at this point. But I hope that we will. I hope we can give her 
a hearing. If we decide to have a hearing, I can hold a hearing. And I 
think I would have the cooperation on the part of the minority in doing 
so.

  Having said that, I also believe that some of my colleagues, who will 
speak in opposition to the nominee, have a legitimate argument in 
urging the Senate to vote on this.
  In his State of the Union Address, President Clinton challenged the 
Senate to ``vote on the highly qualified nominees before you, up or 
down.'' Since President Clinton's challenge, the Senate has voted to 
confirm five judicial nominees. One judicial nominee has chosen to 
withdraw. And Judge Massiah-Jackson's nomination is in serious question 
due to concerns from the law enforcement community. Today, some of my 
colleagues are eager to comply with President Clinton's request. And I 
hope that this year we will be a bit more expeditious in bringing 
judges up for votes on the floor. If Senators have objections to them, 
let them raise them here. This is an appropriate place to do it. Above 
all, it is appropriate to raise them during the hearings that we hold 
in the Judiciary Committee. But they can also be raised here, and we 
face those objections if we are for or against these nominees as they 
come up for a vote.
  Mr. President, if I could just have one more sentence, I don't know 
whether we will have another hearing or not. But I am certainly going 
to keep my options open on the subject and work with my colleagues from 
Pennsylvania. I can't believe that all of these people who have 
suddenly come forth as law enforcement people are not telling the 
truth. Yet, I do have some information that Judge Massiah-Jackson may 
have massaged some of the facts herself. And I am very concerned about 
this. Frankly, I am going to look for guidance here on the floor from a 
wide variety of people. And let's just hope that we can do what is 
appropriate here under the circumstances.
  I yield the floor at this time.
  Mr. LEAHY. Mr. President, if the distinguished Senator from Utah will 
stay on the floor for a moment on this, I know there are a number of 
Senators, especially the two distinguished Senators from Pennsylvania, 
and others who wish to speak. I advise Senators that I am only going to 
hold the floor for a moment.
  I would like to underscore something that the distinguished Senator 
from Utah said, which is that if this matter does not come to a vote in 
the next couple of days and stays on the calendar during that time, the 
distinguished chairman of the Judiciary Committee has the authority to 
hold further hearings, if he wishes to, even though the matter is here 
pending on the calendar. It is something that can be done without the 
direction one way or the other from the Senate as a body.
  I would also note that the distinguished chairman and I have a long 
practice of discussing first privately issues of this nature that may 
come up so that we can then report back to the individual Members on 
our side of the aisle where we are going. I know that the distinguished 
Senator from Utah would do that. I mention this only to say that I do 
not want in any way to limit anyone's right to speak, but I will 
reserve any comments that I might make until after the time I have 
discussed this matter privately with

[[Page S552]]

the Senator from Utah. I will certainly listen to the things that are 
said by other Senators on the floor. I want to note an agreement with 
what the Senator from Utah has said, which is, of course, that the 
committee has the right to hold further hearings while this matter is 
pending before the Senate. It is not often done. But certainly it could 
be.
  Mr. President, I am about to suggest the absence of a quorum, and I 
will assure Senators that I will have no objection to having it called 
off in about 1 minute. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. 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. LEAHY. Mr. President, I see other Senators, including the 
distinguished senior Senator from Pennsylvania, on the floor. I yield 
the floor.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I think that there may well be an 
agreement on the basic course in this matter; that is, to have another 
hearing in the Judiciary Committee after we have reviewed all of the 
cases presented by the district attorneys, and after we have given 
Judge Massiah-Jackson an opportunity to reply. Before commenting about 
the background and history of the case and the actions which have been 
taken up until now, I would ask for the attention of our distinguished 
chairman, Senator Hatch.
  The PRESIDING OFFICER. The Senate will please come to order.
  Mr. SPECTER. Senator Hatch has cited the case of Commonwealth v. 
Smith, and noted Judge Massiah-Jackson's judgments in the matter. And I 
just wanted to inquire of my distinguished colleague, if I could have 
Senator Hatch's attention, does my distinguished colleague know that 
when the case came up on retrial before a different judge that the 
defendant Smith was found not guilty?
  Mr. HATCH. I understand this to be the case. As I noted, the record 
as of today is unclear on a number of these issues. The Department of 
Justice is still reviewing some of these cases. But the fact that the 
defendant was eventually acquitted does not excuse the fact that she 
was reversed on appeal, that we only learned of this case last week, 
and that there certainly appeared to be probable cause to arrest him.
  Mr. SPECTER. The Senator from Utah has commented about two cases 
where there were sentences below the guidelines. I ask my colleague 
from Utah if he knew in the case of Commonwealth v. Earnest Smith, 
January term, 1986, 0144-0146 that Judge Massiah-Jackson was reversed 
for handing out a sentence which was too tough or long under the 
sentencing guidelines? I would be interested to know if the Senator 
knew as opposed to the staff knowing, if it please.
  Mr. HATCH. I am aware that she may have handed down some tough 
sentences as well.
  Mr. SPECTER. I raise those two points on specific matters cited by 
the distinguished chairman because there is a great deal which has to 
be analyzed. I am in total agreement with Senator Hatch when he says 
that there has to be review in a bipartisan manner to take a close look 
at Judge Massiah-Jackson's qualifications. I consider myself as a juror 
on the matter to look at the facts and make an impartial, unbiased 
determination. That is the conclusion which I came to in conjunction 
with my distinguished colleague from Pennsylvania, Senator Santorum, 
when we had the district attorneys in my office on January 23rd at the 
invitation of Senator Santorum and myself to hear the specifics of 
their complaints. They said at that time that they had some 50 cases to 
present on Judge Massiah-Jackson's record, and we responded that we 
wanted to hear them to see what they were. We hoped that they could be 
filed within a week, although whatever information they give us at any 
time, including today, is going to be considered.
  This is a very important matter when you have a lifetime Federal 
court appointment. In fact, 49 cases were submitted on Monday, February 
2nd, a week ago yesterday. Those cases are currently under review. I am 
told that some 15 people are reviewing the cases in the Department of 
Justice and at the White House to make an analysis of those cases. 
Judge Massiah-Jackson is now in the process of reviewing those matters 
to present her views as to why she did what she did in those cases. 
Once that is concluded, I think that we would have to make an analysis. 
And the probabilities are high that another hearing will be required, 
although even that cannot be determined until we take a look at the 
cases to see what those cases say.

  When Senator Hatch outlined the history of this matter, he pointed 
out that the President submitted the nomination of Judge Massiah-
Jackson to the Senate on July 31st of 1997, and that the papers were 
sent over on August 15th of 1997.
  I think it is worth noting, Mr. President, that an arrangement which 
has been worked out between Senator Santorum and myself as the Senators 
from Pennsylvania and the White House has been that for every three 
nominees submitted by the President's party, Senator Santorum and I 
would be able to make recommendations as to one judge from the 
Republican Party. Pennsylvania is the only State which has that 
arrangement, with the exception of New York which has had that 
arrangement going back to the 1970's when Senator Javits was the 
Senator from New York. Our recommendation was for the Eastern District 
and for former Pennsylvania State Supreme Court Justice Bruce Kauffman 
and that was our suggestion. There was no connection with any other 
nominee. But that arrangement has been carried out, and we expect it to 
be carried out in the Western District and the Middle District as well.
  As Senator Hatch pointed out, when we sought to have information 
about Judge Massiah-Jackson, none was forthcoming, and there was a 
reluctance on the part of the Judiciary Committee until further 
investigation was done.
  So Senator Santorum and I convened a hearing which was attended by 
Senator Biden, former chairman of the Judiciary Committee, in 
Philadelphia in early October. We asked all parties to come forward at 
that time, if they had any information adverse to Judge Massiah-
Jackson. Among the witnesses who testified that day, one was a 
representative of the mayor. And Mayor Rendell has been very forceful 
in his support of Judge Massiah-Jackson. Mayor Rendell told me that 
Judge Massiah-Jackson had only one appeal taken and had been sustained 
on that. Senator Hatch pointed out that apparently is not the case with 
two other cases having been reviewed here. Mayor Rendell had been 
District Attorney in Philadelphia, and had subsequently been the Mayor 
of Philadelphia, been the interim District Attorney until 1985, and 
then elected Mayor in 1991. So he had some substantial familiarity with 
Judge Massiah-Jackson's record and was very forceful in his support of 
Judge Massiah-Jackson.
  In any event, after the hearing in Philadelphia in early October, the 
Judiciary Committee hearing was scheduled in late October. And at that 
time there was a review of Judge Massiah-Jackson's record at that time. 
Senator Kyl presided. Senator Sessions was present, and I was present. 
Others were present when we went into her record. Subsequent to that 
hearing, information has come forward from the Pennsylvania District 
Attorneys Association challenging Judge Massiah-Jackson on a variety of 
grounds.
  When I heard about that, I asked them to come in. January 19 was an 
inconvenient date, but we did meet on January 23 and then the sequence 
followed with their having presented their cases which we have in hand 
as of a week ago yesterday, February 2.
  It seems to me that what we need to do is to take a look at those 
cases. There have been citations against Judge Massiah-Jackson in some 
cases--and I am not going to go into them at this time--where Judge 
Massiah-Jackson's judgments were later upheld by the appellate court. 
The information which has been provided to me is that in 95 cases which 
were taken on appeal from Judge Massiah-Jackson, she was reversed in 14 
cases. Some of those cases were civil as well as criminal.

[[Page S553]]

 And I think it important to note that Judge Massiah-Jackson has not 
sat in criminal cases since 1991.
  I think there is agreement by all people who have taken a look at 
this nomination that a lifetime appointment is a matter of great 
concern, and I might add that there is a special concern among the 
district attorneys which has been expressed to me as the result of the 
decision by Judge Dalzell of the same court, the United States District 
Court for the Eastern District of Pennsylvania, in a case of 
Commonwealth v. Lambert in Lancaster County, a very serious homicide 
matter where Judge Dalzell suppressed evidence and said there could not 
be a retrial. Judge Dalzell has since been reversed by the Court of 
Appeals for the Third Circuit because the defendant did not exhaust 
State remedies, and Congressman Pitts and Congressman Gekas and I have 
filed legislation which would deny jurisdiction to a Federal judge to 
order no retrial. Federal judges have the authority to suppress 
evidence, but I do not think they have the authority to deny retrial. 
That is a matter for the District Attorney of Lancaster County, 
something I have some familiarity with, having been DA for 8 years and 
Assistant District Attorney for 4 years before that. But I think a 
retrial is a matter for the local District Attorney and the local 
court. But there is quite a concern among the District Attorneys of 
Pennsylvania about that action by a Federal judge and a concern as to 
this nomination, and as citizens, as District Attorneys, they obviously 
have every right to provide information to the Judiciary Committee on 
this nominee. I think we have to consider what they have to say. I 
think we have to consider Judge Massiah-Jackson's responses and then 
make a determination of the judgment as to whether she should be 
confirmed or not.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SANTORUM. Mr. President, I rise to support what seems to be a 
growing notion on the floor that we not vote on this nominee today, 
that we take an opportunity for the sake of fairness to give Judge 
Massiah-Jackson the opportunity to respond to the new information 
provided by the district attorneys association.
  I had to leave the floor for the past few minutes, and I missed most 
of the remarks of my colleague from Pennsylvania. There were some folks 
from Core State who wanted to talk about the Core State-First Union 
merger which is a very important issue in my state. I have been 
informed that Senator Specter went through some of the history of how 
this nomination came to this point, and I think it serves us well to 
understand that this information has come out late, that the 
opportunity was made available to anyone to not only testify in 
Philadelphia--Senator Specter and myself and Senator Biden held a 
hearing in Philadelphia to seek information, as well as the Judiciary 
Committee held its hearing. Information could have been provided.
  I must admit that for a period of several months prior to the nominee 
coming up before the committee I was provided a whole bunch of 
information slid under the door, thrown over the transom, but not 
information that was in fact stood behind by anybody willing to come 
forward and say this is what the record indicates and go on the record. 
It led me to have some very serious concerns about the nominee, but, as 
Senator Hatch said, I am not going to make a decision on a judge based 
on information that someone is not willing to stand up in the public 
light and testify to. Senator Specter and I have a joint committee that 
reviews nominees to be district court judges in Pennsylvania. We both 
have an equal number of representations--a bipartisan committee. They 
review the qualifications of a judge, basically resume and other kinds 
of information. In fact, we ask several questions of the judge, but the 
judge provides us with the information, and we make a decision based on 
that information we receive. Judge Massiah-Jackson was approved by that 
commission. As a result, my policy is to support anybody who gets 
approved by the commission and then subsequently nominated by the 
President, to support that nominee's right to come out of committee and 
come to the floor of the Senate. I have on occasion not too long ago 
actually held judges and objected to judges being considered by the 
committee and coming to the floor of the Senate from the State of 
Pennsylvania because the commission that Senator Specter and I have did 
not find that individual to be qualified. They did find Judge Massiah-
Jackson to be qualified. Therefore, I agreed to support her through 
this process until it reached the floor.

  I always left open the opportunity, and still do, to judge as to 
whether I believe that person should be finally approved by the Senate. 
In the case of Judge Massiah-Jackson I have very serious concerns that 
she is in fact going to be a good judge on the Eastern District in 
Pennsylvania. The charges that have been put forward by the district 
attorneys association and others I think are very serious. The cases 
you have heard from Senator Hatch and I know others will be talking 
about today raise very serious concerns about her respect for law 
enforcement and her treatment of criminals on both her record as far as 
a finder of fact in nonjury trials as well as her sentencing as a 
result of being the finder of fact.
  So those things I have very grave concerns about, but having said all 
that I don't think it is fair for the Senate to move forward and vote 
on a nominee who has not had the opportunity to respond. I just think 
that would be unprecedented. These allegations, unfortunately, came in 
at the last minute, came in almost after the last minute. Judge 
Massiah-Jackson actually almost was approved before we left at the end 
of last year but an objection was raised by two Senators for that 
approval. Otherwise, she would have been approved by unanimous consent 
here. Two Senators objected to that approval. It was only after that--
in fact not immediately after that because that happened in November. 
It was 2 months later that this information came out--not 2 months but 
almost 2 months later that this information came out in a letter from 
the district attorney of Philadelphia and the neighborhood who voiced 
her concern and her opposition and obviously the district attorneys 
association followed suit, or I guess about the same time came forward 
and said they objected. Subsequently, the fraternal order of police in 
Philadelphia objected, then the State and then the national. So we had 
this sort of drip, drip, drip of opposition come out, and I am not 
questioning whether it is legitimate or not.
  These are, obviously, very important substantive issues, but I must 
admit I am a bit concerned and bothered by the fact it came out at such 
a late time and in such a, I think, unprofessional fashion. We needed 
to have this information before the committee when the committee 
brought her nomination up for confirmation. It was only fair to the 
judge to do that. And I think these allegations coming out at the time 
they are have not been fair to her, so I think for the Senate to move 
forward at this point would be an additional unfairness to this 
candidate. And so I would encourage my colleague, the Senator from 
Utah, as well as the Senator from Vermont, Senator Leahy, to 
coordinate, whether we have to do it by some formal action in the 
Senate or preferably by some informal action, that we delay this 
nominee today, give her the opportunity to come before the Judiciary 
Committee and have an opportunity to be heard and to respond to these 
allegations, and they are serious, but I frankly think the more serious 
the more I feel compelled to give her the opportunity to respond. If 
they were not so serious, then I would say, well, let's just move 
forward. But the fact they are serious I think fairness requires her to 
come before the committee and give her accounting of these fact 
situations.

  And what are they? Well, 50 cases have been brought to our attention 
here in the last few weeks, 50 cases that have been delivered to us for 
the last year in which she was a judge. I believe she was a criminal 
court judge about 7 years. I could be wrong by a half year or so. The 
last year they went through her records and of 400 some cases, they 
pulled 50 to show what they believe is conduct that shows a disrespect 
for the rule of law and a very soft approach on crime.
  I must admit I have read the summaries of all 50 of those cases and I 
am troubled by not all of them but certainly most of them. I also 
understand that is the synopsis of the district attorneys association 
as to what the

[[Page S554]]

facts were in the cases, and I would think it is only fair that we hear 
what the judge's perspective is as to what the facts at least alleged 
in these summaries are before we make the decision in the Senate.
  And so again I think on that count the judge deserves an opportunity. 
Other information has been brought forward as to her sentencing record. 
Again, that was somewhat reviewed by the committee. They are taking a 
little different angle. But these are nuances that I think are 
important, when it comes to sentencing, she have an opportunity to 
provide at least some light on the subject.
  There is the issue of her acquittal rate. According to the district 
attorneys association, her acquittal rate is much higher than the 
average judge. When I say acquittal rate, acquittal when she sits as 
finder of fact in a nonjury trial--that her rate of acquittal is higher 
than the average rate of acquittal, on all charges I might add, on all 
charges of the average judge in Philadelphia. In fact, in the last 4 
years it is three times the rate of the average judge in Philadelphia. 
Again, I am not an expert in the way the court system functions in 
Philadelphia. I don't know what division of the court she was sitting 
in. I don't know what that means. Is it maybe as the result of the kind 
of cases she was hearing? I think those are important questions we have 
to ask her and, frankly, ask the district attorneys association or the 
district attorney of Philadelphia at a hearing so we can understand in 
a little broader picture what the facts are with respect to her 
acquittal rate.
  So those are just some of the things that while on the face of it I 
must admit are troubling and may continue to be troubling if the 
response, Judge Massiah-Jackson's responses are not satisfactory, I 
think the opportunity to respond is imperative.
  So I rise to support what hopefully will be the order of the day here 
which is to give everyone an opportunity to be heard but hopefully then 
give Judge Massiah-Jackson the opportunity to be heard.
  I thank the Chair.
  Mr. ASHCROFT. Mr. President, I rise today to speak out in opposition 
to the nomination of Judge Frederica Massiah-Jackson to be United 
States District Judge for the Eastern District of Pennsylvania.
  We have heard in recent weeks about the so-called vacancy crisis in 
Federal courts and that the Senate needs to move more quickly in 
putting the Clinton nominees on the bench.
  Well, I for one am more concerned about the quality of nominees than 
I am about the quantity of nominees. And I am quite sure that we should 
not respond to a perceived vacancy crisis by giving a lifetime 
appointment to Frederica Massiah-Jackson.
  Before putting this nomination into the context of judges in 
Washington, and the battles over judges, it is worth emphasizing the 
remarkably strong and unified opposition of local law enforcement to 
this nomination. I have not had a long history of appointments and 
confirmations here in the Senate--3 years. We have confirmed scores of 
judges over the course of 3 years. When I was Governor, I had the 
opportunity to appoint a couple of hundred judges. I appointed all 
seven members of the supreme court of the State of Missouri. It was a 
privilege for which I was deeply grateful and I took it very seriously. 
I thought it very important that we appoint individuals of high 
quality.
  Never in my experience with judicial appointees here in the U.S. 
Senate or in my time as a Governor, when I appointed several hundred 
judges in my home State, did I ever see a community of prosecutors step 
forward and say, ``Don't do this.'' Never before have officers of the 
court--and prosecutors are officers of the court--felt the necessity to 
stand up and say, whatever you do, don't confirm this one. Don't 
appoint this individual.
  At noon today I participated in a press conference with national and 
local law enforcement officials. Other participants included John 
Morganelli, the district attorney from Northampton County in 
Pennsylvania, and Ralph Germak, the district attorney in Juniata County 
of Pennsylvania, and Richard Costello, the president of the 
Philadelphia Fraternal Order of Police.
  I thank them for their willingness to come forward. They came to the 
news conference to express their opposition to Judge Massiah-Jackson. 
Interestingly enough, these are not individuals that you would normally 
expect to publicly express their opposition. District Attorney 
Morganelli is a Democrat. The nomination of this Democrat judge from 
Philadelphia was made by a Democrat President. It takes courage to put 
one's country and the judicial system above one's party. But District 
Attorney Morganelli chose to do so.
  Not only did District Attorney Morganelli come forward, but he also 
made us aware of District Attorney Lynne Abraham, a Democrat district 
attorney for Philadelphia. At great political cost to her, Ms. Abraham 
said this nominee is simply unacceptable. She wrote in a letter 
addressed to Senator Arlen Specter on January 8 of this year, referring 
to Judge Massiah-Jackson:

       This nominee's judicial service is replete with instances 
     of demonstrated leniency toward criminals, an adversarial 
     attitude toward police, and a disrespect toward prosecutors 
     unmatched by any other present or former jurist with whom I 
     am familiar.

  The severity of that statement is matched only by its candor and its 
courage. It is not easy for a district attorney who has the 
responsibility of sending prosecutors into that courtroom to come 
forward with that kind of testimony about a nominee. Most of us would 
not want to tell the truth about a judge that we were going to have to 
face over and over and over again. When District Attorney Morganelli 
and District Attorney Lynne Abraham come forward, speaking at great 
personal risk, I do not take that lightly.
  When Richard Costello spoke, as the president of the Philadelphia 
Fraternal Order of Police, he mentioned casually a fact that sent a 
chill down my spine. He said, ``I have been shot twice.'' And then he 
related the story of how Judge Massiah-Jackson had ordered undercover 
policemen to stand up and be recognized in court so that any drug 
dealers that were there would recognize them if they saw them on the 
streets. You can imagine what happens to an undercover policeman who is 
trying to make a drug buy in a case and the drug dealer recognizes the 
policeman. It could well be that that individual's life would not be 
worth that much.
  I think these individuals who have come forward have a unique blend 
of personal experience and an unparalleled amount of courage to provide 
this important information to the U.S. Senate. Nomination fights are 
difficult. I wish we didn't have all these fights stacked at once. But 
there is a level of quality that we must expect from individuals who 
are appointed for life to the Federal bench. If that level of quality 
does not exist, we must find it elsewhere.

  I do not believe that the talent pool of individuals available to be 
Federal judges in America is shallow. I do not believe that we cannot 
find moral people who are decent, who have an ability to stay in the 
middle of a controversy instead of joining one side or the other. I do 
not believe that the number of trained, skilled lawyers in the 
Philadelphia, PA community is so low that we have to accept individuals 
who, according to the district attorney, have an adversarial attitude 
toward police and disrespect prosecutors. The prosecutors are a part of 
the court and judicial system. They are entitled to respect. But this 
nominee is so far below the minimum quality we should expect from a 
Federal judge that it is tragic. The local law enforcement community is 
horrified. They are about to be saddled with a judge that they say is 
the worst.
  There is a principle, I think they call it ``the Peter Principle,'' 
where they kick people upstairs. They keep promoting them because they 
want to get rid of them. These officials who came forward in this case 
are not even willing to do that. They understand that this would be a 
mistake of unparalleled proportions. Washington may seem willing to 
rubberstamp nominees no matter how unqualified, but these courageous 
individuals from Philadelphia--and, I might add, the prosecutors 
association from the State of Pennsylvania, which voted unanimously 
against this nominee--are not.
  I began a minute ago to address the idea of the talent pool, the idea 
that there are people talented enough and capable enough, and who have 
the requisite integrity to do a good job. I am

[[Page S555]]

firmly convinced of that. What really troubles me is that the Senate 
here, now, is talking about maybe we can try and allow this individual 
to have another hearing, in spite of the fact that the written 
responses were inadequate, in spite of the fact that the oral responses 
of this judge, when heard previously, were inadequate, that somehow we 
could explain away everything. It is as if there is no other option.
  I do not think we should try to find a way to make the worst nominee 
that these folks have ever seen somehow marginally acceptable. We 
should not be seeking the lowest quality possible in the Federal 
judiciary. We should be seeking the highest quality possible.
  Let me go through some of the objections that the local officials 
outlined. These happen to be the basis for my own opposition. They are 
fourfold.
  This nominee has shown disrespect for the court by using the English 
language's most offensive profanity in open court. This is not a 
subject of debate. This is the subject of court records. You see, there 
were certain times when this judge's personal court reporter wasn't 
there to take down the testimony and so a reporter unaccustomed to the 
language of this judge just filed the report with the offensive 
language in it, instead of scrubbing the report.
  I think for us to say that a judge who uses the crudest profanity 
that we know in America in a way that demeans the prosecutor in a 
courtroom is someone that we should not reward by elevating to a 
lifetime appointment as a Federal judge. It is just that simple. There 
are some who said there have been apologies and it did not happen very 
often. I know that there are several cases in court records which show 
the kind of language that was used. They don't happen to occur in 
records that were kept by the regular reporter. But, in my judgment, 
when we have a deep talent pool, why should we say to those who are 
both in the system and hoping someday to be made Federal judges, or 
otherwise, that ``it doesn't matter what kind of language you use. You 
just can come up and say you are not going to do it anymore and next 
time make sure that the reporter scrubs it out of the record.'' We 
really need to make a statement that people who disrespect the 
participants in the judicial system do not belong as Federal judges 
with lifetime appointments, accountable to no one.
  Second, I already mentioned the eloquent testimony of 
Richard Costello, the president of the Philadelphia Fraternal Order of 
Police, and how this judge so favoring dope dealers asked undercover 
police officers to stand up and be identified in court. You know any 
dope dealer in the court wouldn't have been identified to the police 
officers, only the police officers to the dope dealers. Here is a judge 
who recklessly and without regard to the lives of police officials, 
puts those lives at risk. Officer Costello indicated that he attended 
the funerals of seven police officers who had been killed in the line 
of duty, and he didn't appreciate in the least a judge jeopardizing his 
fellow officers and his own ability to survive.

  Third, this judge demonstrated hostility to prosecutors by 
suppressing evidence and dismissing charges against criminals. I think 
the statement by the chairman of the committee with regard to the young 
man who was raped and the assailant who was captured, identified 
crawling out of the bushes, was eloquent and powerful. We need judges 
who will be fair and impartial.
  Last but not least, this judge has shown leniency to criminals in 
sentencing violent criminals to probation only, even when they have 
been involved in violent crimes on a repeated basis. The judge has used 
a technique to get to a place for lower sentences. When a person would 
be charged with a crime and the evidence would come in and show 
unequivocally that they are guilty of the crime, the judge would find 
guilt of a lesser included offense so that she could avoid having to 
impose the minimum sentence and could give a lesser sentence.
  There has been a great deal of talk about how there have not been 
very many appeals. Some have asked, ``How many times has she been 
reversed on appeals?'' Let me say this, if you are a criminal you are 
not going to appeal when the judge turns you loose. You are not going 
to appeal when the sentence is low. It's very difficult for the 
prosecutor to appeal.
  The Senate cannot confirm this nominee in the face of the strong 
opposition of the local law enforcement community and on the basis of 
these four fundamental facts, which are established clearly in the 
record and which require no additional committee meetings to examine. 
This judge has been a profane judge, disrespecting prosecutors in the 
courtroom by referring to them with the lowest level of profanity known 
in the English language. This judge has recklessly risked the lives of 
law enforcement officers by making undercover agents reveal who they 
are to the drug-running community. This judge has demonstrated a 
hostility toward prosecutors by suppressing evidence unnecessarily and 
improperly on a repeated basis. And this judge has shown leniency 
toward criminals by sentencing violent criminals only to probation when 
the record clearly shows that not only are they violent criminals, but 
they are violent repeat offenders.
  For us to confirm this nominee of this President would be to betray 
our oath of office to provide advice and consent. For us to confirm 
this nominee would be the height of arrogance and another example of 
``Washington knows best,'' when the folks at the local level know what 
is right and they have come forward with great courage and inordinate 
candor to share with the Senate their sentiments about this nominee.
  As I mentioned earlier, never in my experiences with the appointment 
of hundreds of judges have I ever heard from prosecutors like we have 
in this matter. I've never seen so many stand up, be willing to call a 
news conference and say, ``This kind of candidate is totally 
unacceptable.''
  We have heard a great deal in recent weeks about the vacancy crisis 
in the Federal courts, and we heard it said that Republicans are 
delaying for the sake of delay. In the case of Massiah-Jackson, I have 
asked that we debate this issue for the sake of the country and for its 
courts.
  I must confess that this issue is here in the U.S. Senate because of 
me, because at the close of the last session, I was contacted by no 
less than a half a dozen different Senators who urged me to let this 
nomination go through in the dark of night as a matter of unanimous 
consent. They said, ``Let's get it over with; let's just get this 
done.''
  Well, that would have been an unfortunate mistake. It would not have 
allowed these prosecutors and local officials to assemble their briefs. 
It would not have allowed us to hear the evidence. It would not have 
allowed us to make good decisions as Members of the U.S. Senate. I 
resisted those efforts because I felt the nomination raised serious 
questions, it had serious defects that needed to be examined in the 
light of day.
  When the President comes and asks us to work hard to make sure we do 
a good job on nominees, I think that is a sincere request, but we 
should take him at face value. I think these nominees are important 
enough for us to debate, I think they are important enough for us to 
decide, and I think we should debate them and decide them in the light 
of day. There is no need for us to rush this particular item back into 
a committee room somewhere so something can be done absent the light of 
day and the scrutiny of the public. It is time for the U.S. Senate to 
stand up and to say that there are times when the President simply 
sends us individuals who are unacceptable.
  I placed a hold on this nomination and refused to lift it, despite 
the insistence of a number of Senators, including Senator Specter. Some 
would point to this as unnecessary delay, but we will create an actual 
crisis, not an imagined one, if we send individuals of this caliber 
into America's courtrooms.
  The Senate has a constitutional obligation to give its advice to the 
President with respect to judicial nominees, and, in this case, I think 
we should withhold our consent. I think that the President should have 
withdrawn this nominee. I can't imagine the President understands the 
character and nature of this nominee's conduct and wants the Senate to 
ratify that conduct by sending this nominee into a lifetime 
appointment. Surely the President is familiar with the litany of 
disrespect assembled by this nominee in her prior service.

[[Page S556]]

  One has to wonder about the vetting process that raises no objections 
to a nominee like this one. You wonder what kind of job the American 
Bar Association did. They purport to be the ``Good Housekeeping Seal of 
Approval.'' I maybe ought to apologize to Good Housekeeping for saying 
that, because never has a product with the ``Good Housekeeping Seal of 
Approval'' fallen so short of its advertised billing.
  The truth of the matter is this: The Constitution does not give the 
American Bar Association or the Justice Department or the White House 
counsel's office the screening responsibility for Federal judges. The 
responsibility to screen Federal judges is resident in the U.S. Senate.
  Some have said, ``Well, we ought to have another committee hearing; 
we ought to have this; we ought to have that.'' The U.S. Senate acts as 
a committee of the whole. When the nomination comes, we are each 
eligible to evaluate the evidence. We are each charged with the 
responsibility, duty and opportunity to help make sure that the 
judicial branch of this country is properly staffed.
  The President should withdraw this nomination. The American people 
deserve better. This nomination sends the wrong message to criminals, 
suggesting that you can find a friendly judge whose predisposition is 
adversarial to the prosecutors. That is not my conclusion, that is the 
conclusion of the prosecution community in Pennsylvania. It sends the 
wrong message to young people that it doesn't matter what kind of 
language or respect you accord to the judicial system, you can still be 
moving up the ladder. Finally, this nomination sends the wrong message 
to law enforcement that the U.S. Senate doesn't mind promoting someone 
who puts the lives of law enforcement officials in jeopardy.
  I call on the President to withdraw this nomination. If the President 
refuses to withdraw this nominee, the Senate should vote to reject the 
nominee now. There is no need for additional proceedings. The President 
himself says we should have up-or-down votes. He says that there is a 
backlog. Well, if there is a backlog, why slow the system down with a 
reexamination of an individual who is unqualified to serve, who will 
not take this responsibility of the American judiciary to its highest 
and best, but who, unfortunately, will be found as reinforcing it at 
its lowest and least?
  Nothing will be gained by further delay or sending the nominee back 
to committee. We know more than enough now, and we know more than 
enough about the talent pool of lawyers in Philadelphia, PA, to know at 
least there are some lawyers there that could have a far superior 
propensity for public service than this nominee who has already soiled 
a reputation while serving in a public position of responsibility.
  We are constantly being told that if there are problems with 
nominees, we should bring them up and vote them down. Now is the time 
to dispose of this nomination. Now is the time to say America deserves 
better. We deserve better than someone who would profanely abuse the 
courtroom and the participants in the judicial system.
  We deserve someone who would do better than to jeopardize the lives 
of law enforcement officials.
  We deserve a judge who would be fairer than to arbitrarily dismiss 
evidence so that criminals could go loose unjustifiably.
  We deserve someone who knows better than to avoid tough sentences 
when there are repeat violent offenders against the people of our 
cities and States.
  I believe we have the votes, and after a debate in which people can 
see the kind of nominees that the President is sending to the Senate, 
we should vote this nominee down.
  I thank the Chair.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER (Mr. Hutchinson). The Senator from 
Pennsylvania.
  Mr. SPECTER. Mr. President, let me take strong offense to what the 
Senator from Missouri has said in a number of particulars, if I could 
have his attention. If I could have the attention of the Senator from 
Missouri. When he makes a comment about betraying the oath of office, I 
consider that insulting. I have been in this body a little longer than 
the Senator from Missouri has, and I know what my oath of office is. If 
the Senator from Missouri thinks that he knows enough, that can be his 
conclusion. He may be willing to make a judgment without hearing from 
Judge Massiah-Jackson, but I don't think that is the fair or the 
appropriate thing to do.
  When he talks about why send it back to the Committee, let's debate 
and decide this in the light of day, he is not only insulting this 
Senator, he is insulting the Committee--why send it back to the 
Committee without the scrutiny of the public? If the matter goes back 
to the Committee, there will be an open hearing, and the Senator from 
Missouri is on the Committee, although he wasn't present when Judge 
Massiah-Jackson's hearing came up. The Senator from Missouri has made a 
good political speech, but I don't think a speech becoming of the 
United States Senate's decision to hear both sides of the case.

  When the Senator from Missouri says that there has been offensive 
language, that is true, and that was taken up with the Committee and 
the Committee voted 12 to 6 to report Judge Massiah-Jackson out, 
notwithstanding that language which was, in fact, offensive, and she 
apologized for it. I don't know of any Senator on this floor or in this 
body--maybe there is one, the Senator from Missouri--who has never made 
offensive comments. But I don't think you would find people in many 
offices, if any, who would be disqualified from office because they 
made two offensive comments.
  Mr. ASHCROFT. Will the Senator yield?
  Mr. SPECTER. No, I won't. When I finish--no, go ahead, I will yield.
  Mr. ASHCROFT. I wondered if the Senator had a question of me. You 
asked that I stay, and I wonder if you had a question. If you do, I 
will be pleased to answer it.
  Mr. SPECTER. No, I do not have a question of you. I would like you to 
listen to this. If you don't want to listen to Judge Massiah-Jackson, I 
hope you will listen to a colleague who has something to say about what 
you just said.
  Mr. ASHCROFT. I have thoroughly reviewed the record of Judge Massiah-
Jackson.
  Mr. SPECTER. Are you aware that the case you referred to involving 
the rape of a young man was sent back to another judge for trial and 
that defendant was acquitted?
  Mr. ASHCROFT. I have thoroughly reviewed the record of Judge Massiah-
Jackson.
  Mr. SPECTER. Well, that's an interesting answer to some other 
question, but the question I just posed to you, are you aware of the 
fact that defendant was acquitted when he went back for another trial--
you talked about the defendant being guilty, are you aware of the fact 
that he was acquitted?
  Mr. ASHCROFT. I am aware of the record of Judge Massiah-Jackson. It 
was clearly stated by the chairman of the committee.
  Mr. SPECTER. Well, then I would suggest----
  Mr. ASHCROFT. Mr. President,----
  Mr. SPECTER. Mr. President, regular order. I have the floor.
  Mr. ASHCROFT. I have the floor.
  Mr. SPECTER. I have the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania has the floor.
  Mr. SPECTER. Mr. President, when I make that comment about the 
Senator from Missouri saying that he knows the facts, knows the case, 
he raises four points, and one of them is the rape of this young man, a 
victim, but he doesn't know that the defendant was acquitted. That does 
have some bearing. If the scrutiny and the thoroughness of the Senator 
from Missouri on the balance of the record is as thorough as it was on 
this case, some may question the basis for his judgments, wanting to 
come to a vote without having heard the other side of the case.
  When the Senator from Missouri comments about endangering police 
officers, I wonder if the Senator from Missouri knows that those 
officers were identified because they testified in open court?
  And when the Senator from Missouri talks about attending the funerals 
of seven police officers, this Senator has attended the funerals of a 
lot more police officers than seven in 4 years as an Assistant District 
Attorney and 8 years as District Attorney of Philadelphia. It

[[Page S557]]

may be in that capacity that I have some greater knowledge of criminal 
procedure in that city and what goes on in the courtroom and what 
happens and whether somebody is entitled to make a reply. Not only 
attended the funerals of seven police officers, but prosecuted on many 
occasions their murderers.
  When the Senator from Missouri makes a comment about lower sentences, 
lesser included offenses, he may have a point on that, but that 
requires an analysis of what was in the case.
  I agree with the Senator from Missouri when he talks about the need 
for a quality evaluation of judges, and I do not believe that we ought 
to appoint judges for the Federal courts for lifetime appointments 
without very thorough scrutiny, but I do not think that it advances the 
cause to vilify or joke about the American Bar Association and the 
``Good Housekeeping Seal of Approval.'' The Philadelphia Bar 
Association is making an analysis and stands behind Judge Massiah-
Jackson as her advocate.
  When the Senator from Missouri says that Arlen Specter is the 
sponsoring Senator, again, he doesn't know what he is talking about. 
This is a nominee by the President. This is a nominee by the President, 
and I have said that Judge Massiah-Jackson is entitled to a fair 
hearing and to have her side of the matter presented. That is, as a 
member of the Judiciary Committee, as a United States Senator and as a 
juror, who has to make a decision.
  I am well aware of my oath of office. And I am well aware of my 
responsibilities to make an impartial judgment in this case. I said to 
the district attorneys who came to my office on January 23--and I 
repeated it earlier today--that I was interested in hearing what they 
had to say, but I will not make a judgment until I hear the reply of 
Judge Massiah-Jackson as a matter of basic fundamental fairness.
  I yield the floor.
  Mr. SESSIONS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, the process of advise and consent in the 
U.S. Senate for judicial nominees is indeed an important one. We have 
had some tremendous debate already this afternoon. And we have had it 
on other nominees. The Senators that have spoken earlier today are 
outstanding Senators who deeply care about their work. And I respect 
them all.
  I think it unfortunate that we may have crossed over into some 
personal matters that would not be normally displayed on this floor. 
But I think it is important what we are doing. I think it is 
commendable that people speak with passion about what they believe in.
  A Federal judicial lifetime appointment is an important office. I 
served as an assistant U.S. attorney, a Federal prosecutor, for 2\1/2\ 
years. I served as a U.S. attorney, a Federal prosecutor, for almost 12 
years. I practiced every day, full time, before Federal judges.
  I respect and believe in Federal judges with great passion. I believe 
we ought to have the finest quality of people we can possibly have on 
the federal bench. I have tried, as I have participated in the Senate 
Judiciary Committee, as a member, to conduct myself in that committee 
with the highest levels of professionalism.
  When this nominee came up, I had some concerns as a professional 
prosecutor. I had a feeling, an intuition, that there was something 
unhealthy about this nominee, that there was perhaps an unstated bias 
against prosecutors and law enforcement. We had a number of matters 
that indicated such a bias.
  She testified well and gave some explanations. I concluded that we 
ought to vote no on the nominee. A number of other people, a majority, 
did not oppose the nominee. Her nomination came to the floor.
  I think it is true, as Senator Ashcroft has suggested, had he not put 
a hold on that nominee, she would be a Federal judge today. That was 
the direction we were heading. The vote was coming up. The committee 
had voted 2 to 1 in favor of that nominee.
  The President has asked that his judges be voted on. I think he has a 
right to ask that, as it is a fair thing for the President to ask. But 
I think the President also recognizes that sometimes giving a little 
insight into it is important; otherwise we become nothing more than a 
rubber stamp or a potted plant. And I do not intend to do that. I have 
a responsibility. I serve on that committee. I care about the Federal 
judiciary, and I want good quality judges on the bench.
  So that is where we are. I think one thing is important and 
instructive out of this entire process. Senator Specter and Senator 
Santorum and Senator Biden had a hearing in Philadelphia. They sought 
out comments. They did not receive any substantial negative comments. 
In defense of Senator Specter, at the hearing he volunteered to allow 
me to continue my questioning of Judge Massiah-Jackson beyond the 
normal time limit that I would have been given. I do not think there 
has been an attempt to suppress the truth.
  What happens in situations like this, however, is that people hate to 
speak out against a person who has been nominated for a high position. 
They just do not like to do it. There is no fun in it. There is no 
pleasure to it. It is not a nice thing to have to do.
  So what really happened was, after the hearing in which I questioned 
Ms. Massiah-Jackson, as did Senator Specter and Senator Kyl and others, 
it was reported in the Philadelphia papers, apparently, that law 
enforcement officers, line prosecutors, who had been in the courtroom 
day after day in Philadelphia, the Philadelphia district attorney and 
others began to think about this, the prospect of this nominee being a 
full time, lifetime appointed Federal judge.
  As a result of that, they made some decisions. They decided to come 
forward and express their true beliefs. Those opinions ought to be 
respected. I would say, in accord with Senator Ashcroft, in my 
experience I have never seen the kind of unanimity of opinion in 
opposition to a nominee by a group of professional people who have 
associated with that nominee on a daily basis as I have seen in the 
case of this nominee.
  The objections are bipartisan--Republicans and Democrats. The 
district attorney in Philadelphia is a democrat and is nationally 
known, Lynne Abraham. She is a true professional, a leader in a number 
of different activities for law enforcement, and has substantial 
credibility.
  She wrote the Judiciary Committee, after our hearing, this letter. I 
will quote from it. You can listen because it is very carefully 
explained. She chooses her words very carefully. It is a significant 
opinion by a prosecutor in Philadelphia whose assistants practiced 
under this judge on a regular basis, who personally served as a judge 
with her on the bench at another point in time, a fellow colleague with 
her.
  This is what she said. She first said she had never taken a position 
on a judge. She did not want to take a position on a judge, but she 
felt she had to. She said:

       My position on this nomination goes well beyond mere 
     differences of opinion or judicial philosophy. Instead, this 
     nominee's record presents multiple instances of a deeply 
     ingrained and pervasive bias against prosecutors and law 
     enforcement officers and, by extension, an insensitivity to 
     victims of crime. Moreover, the nominee's judicial demeanor 
     and courtroom conduct, in my judgment, undermines respect for 
     the rule of law and, instead, tends to bring the law into 
     disrepute.

  Ms. Abraham, a Democratic district attorney in Philadelphia, goes on 
to write:

       This nominee's judicial service is replete with instances 
     of demonstrated leniency toward criminals, an adversarial 
     attitude toward police, and disrespect and a hostile attitude 
     toward prosecutors unmatched by any other present or former 
     jurist with whom I am familiar.

  I say, Mr. President, that is a serious comment by a serious person 
about a nominee that they felt very deeply about. It was important that 
we hear it. Had that nominee not been held up over Christmas, and had 
it not been they had an opportunity to discuss it, we would not have 
heard that.
  I submit this, too, that I have been a prosecutor that supervised a 
staff of attorneys. They talk about judges. You know who the judges are 
that are just a terror to work before. You know who the ones are that 
are always looking to undermine the case, to rule for the defendant.
  A prosecutor, see, does not get to appeal most rulings on evidence. A 
motion of judgment of acquittal on a case is a final judgment. The 
prosecutor has no right to appeal. But a judge can rule

[[Page S558]]

against the defendant, and the defendant has the right to appeal. So if 
a judge is not willing to give the prosecutor a fair trial, there are 
many times there is no recourse. A granting, for example, of a judgment 
of acquittal by a judge is an unreviewable order. They can take a case 
from the jury, declare there is not enough evidence there, and it is 
the same as if a jury had acquitted them. Double jeopardy applies and 
that sort of thing. So this is a problem. It is particularly a problem 
with a lifetime Federal appointment.
  Other law enforcement officials share Ms. Abraham's concern. District 
Attorney John Morganelli of Northhampton County, PA, also opposes the 
nomination of Judge Massiah-Jackson. Mr. Morganelli, who is also a 
Democrat, wrote last month that Judge Jackson's conduct is 
``unjudicial, improper, and illustrates a disdain for police and 
prosecutors.'' Those are his words, not mine.

  Another district attorney from Pennsylvania, Bob Buehner of Montour 
County, also opposes the nomination. He wrote that Judge Jackson's 
``actions as a common pleas judge in Philadelphia have, at times, 
bordered on the outrageous. She has used profanity in her courtroom. 
What is even worse is her consistent, demonstrated exceedingly adverse 
attitude toward prosecutors and members of the law enforcement 
community.
  That is what troubled me to begin with about this matter when it came 
up before the committee. We had the circumstance in which Judge Jackson 
in the courtroom, on the record, said to a female assistant U.S. 
district attorney: ``Shut your `F'-ing mouth.''
  Well, some may say people slip. They say things they ought not to 
say. But from what was said about that, it troubled me, from some of 
the other circumstances involved, that it indicates a lack of respect 
for the prosecutor, a lack of understanding that the prosecutor is a 
litigant, too, who represents the people of Pennsylvania and is 
entitled to the same protections of the law as is the defendant. That 
is what concerned me about it.
  Now we have these letters from these professional law enforcement 
people in Philadelphia. They have seen this judge handle hundreds of 
cases, thousands of cases perhaps. Their assistants have been 
prosecuting there on a daily basis. They talk about what it is like to 
be in that courtroom. That is where we are today.
  Let me say this. These are not just isolated comments of one or two 
prosecutors. In fact, on January 8 of this year, the Pennsylvania 
District Attorneys' Association officially and unanimously voted to 
oppose the confirmation of Judge Massiah-Jackson. The association found 
that Judge Jackson's record ``indicates an attitude which is unusually 
adversarial toward police and prosecutors. Her record also indicates a 
tendency to be lenient with respect to criminal defendants.''
  In addition to the prosecutors, many police officers oppose the 
nomination of Judge Jackson. For example, the Philadelphia lodge of the 
Fraternal Order of Police announced their opposition to Judge Jackson 
last month. The Philadelphia lodge of the Fraternal Order of Police 
stated that:

       Judge Jackson has an established record of being extremely 
     lenient to criminals; insensitive to the victims of crime; 
     and has posed a direct threat against police. Judge Jackson's 
     bizarre rulings, coupled with her challenging and adversarial 
     attitude toward police and prosecutors, make it appear she is 
     on a crusade against public safety.

  That is the Fraternal Order of Police there.
  Now, even in a great city the size of Philadelphia, judges have 
reputations. Police officers know them. They know what kind of 
experience it is to appear before them. They know how a hostile judge 
can leave them hanging out to dry--and it can be a very tough day 
indeed--and what it is like to be before a fair and objective judge. I 
do not think that is a flippant comment. I think that represents a 
considered opinion of the police department, the police officers, the 
line police officers in Philadelphia.
  Judge Jackson's nomination is so controversial that even the National 
Fraternal Order of Police has taken a stand and formally opposed her 
confirmation.
  I would like to share with my fellow Senators some examples that 
demonstrate why these law enforcement people oppose Judge Jackson's 
nomination. While these are just a few of her decisions--many of which 
I firmly disagree with--I think they indicate some of the reasons why 
they would reach these conclusions and why she should not be confirmed 
as a judge.
  In Commonwealth v. Ruiz, Judge Jackson acquitted a man accused of 
possessing $400,000 worth of cocaine because she did not believe the 
testimony of the two undercover officers. In this case, Judge Jackson 
pointed out in the courtroom the two undercover officers, telling the 
onlookers ``to take a good look at the undercover officers and watch 
yourself.''
  Well, some say, ``Well, you know, maybe they shouldn't have been 
testifying. Maybe they would have been identified anyway. What harm did 
that do?''
  I will tell you what troubled me about it, in addition to just the 
plain fact that it may have jeopardized the lives of line police 
officers. What went through my mind was, what would make her do that? 
Why would she do that? What kind of hostility or bias against police 
and law enforcement would cause her to go out of her way to identify 
police officers and tell others to watch out because they might come 
out to arrest you or catch you. That is what concerned me from the 
beginning about this case.
  Detective-Sergeant Daniel Rodriguez, one of the undercover officers 
exposed by Judge Jackson, had this to say: ``I hope I don't ever have 
to make buys from anyone in this courtroom. They would know me but I 
wouldn't know them. What the judge said jeopardized our ability to make 
buys. And it put us in physical danger.''
  Now, the reason that is significant is in every sizable police 
department there are a number of police officers who, for a period of 
time, work in an undercover capacity. It is the best way to make a drug 
case because the one guy who sells drugs today is going to sell them 
tomorrow. You simply send somebody out pretending to be a drug dealer 
and put a tape recorder under his coat. He goes out to buy drugs from 
him and records it so it is not one person's word against another one. 
It is actually the drug dealer's recorded word and you can play that in 
court and the jury who hears it can feel like they are right there, 
know whether or not there was any entrapment. They will know everything 
that was said and they can make a decision whether this was a person 
who committed a crime.
  These officers were undercover police officers. This was their 
responsibility--to go out on a regular basis to make cases. I don't 
know, maybe they are witnesses in other courtrooms there. Maybe there 
were other drug defendants there, maybe families of drug dealers who 
also dealt in drugs, who may have been of a violent nature. It made the 
police officer unhappy and it also made him afraid. He knew that if he 
ever tried to make an undercover buy from any of those individuals they 
would not deal with him and may even harm him.
  Again, why would she do that? Why? What would make a judge do that--
something I have never seen in my entire lifetime or practice of law as 
a prosecutor. By the way, we did ask about this matter and some of the 
others at the hearing, and she did have a chance to answer to them.
  In addition, Judge Jackson made some very offensive comments to 
prosecutors in court. In Commonwealth v. Willie Hannibal she told an 
assistant United States attorney, as I said, ``Will you shut your `f-
ing' mouth.'' When asked about this comment by the Philadelphia 
Inquirer, Jackson said, ``Maybe I would suggest it offended [Ms. 
McDermott], but I can't imagine the defendant was offended.''
  Now, later, when the Judicial Inquiry Commission, the disciplinary 
commission of the Pennsylvania judicial system, disciplined her in some 
fashion she said she was sorry and she shouldn't have done it and she 
said that before our committee. But to the newspaper, her comments 
didn't reflect remorse to me, and in fact she said it may have made the 
prosecutor mad but it made the defendant happy.
  It is the kind of odd approach to judging that I think is unhealthy. 
I believe it shows an insight into her attitude about law enforcement 
and criminal law that is very instructive.

[[Page S559]]

  She is also on record as using profanity in another instance in the 
courtroom.
  Now, you would expect, perhaps, if my intuition is correct, that this 
is an anti-law enforcement judge, a person who is more concerned about 
the rights of criminals than about the rights of the victims, that it 
would show up in the sentencing tendencies of the judge. In this case 
it really does. In Commonwealth v. Norman Nesmith, the defendant was 
convicted of striking a pedestrian with his car, leaving her seriously 
injured in a gutter, fleeing the scene of the crime and beating into 
unconsciousness one of the woman's relatives who tried to thwart his 
escape. As usual, the defendant waived a trial.

  You have a right to waive a trial by jury and be tried by the judge. 
Apparently, many people waive their jury trial early on in the system 
in Philadelphia and they don't know what judge is actually going to 
hear it and they are tried before a judge and not before a jury. They 
have a right to be tried by a jury if they demand it.
  At any rate, this individual waived a trial by jury and asked to be 
tried by the judge herself. She sentenced him to 2 years probation for 
all seven convictions. The defendant had a long prior record for that 
offense.
  In Commonwealth v. Jerome Gray, the defendant severely beat his 
girlfriend. The victim had cracked ribs, a collapsed lung, a ruptured 
spleen that had to be removed. After being released from the hospital 
the defendant threatened to kill her.
  As usual, the defendant waived jury trial and was tried by Judge 
Jackson. He was found guilty of recklessly endangering another person, 
aggravated assault, second-degree and simple assault, and was sentenced 
to only 24 months probation.
  In Commonwealth v. Freeman, the defendant shot and wounded another 
man in the chest because the defendant laughed at him. Judge Jackson 
convicted the defendant of a misdemeanor instead of a felony offense 
and sentenced him to 23 months, but then immediately paroled him so he 
did not have to serve any prison time.
  In Commonwealth v. Jenkins, the police arrived at the scene of an 
armed robbery within minutes. They were given detailed descriptions of 
the robbers and told that the suspects had run north along the street. 
The descriptions were broadcast over the radio. Soon thereafter, other 
police officers arrested an individual matching the description 1\1/2\ 
blocks from the crime scene. When approached by the police, the suspect 
took a roll of cash from his pocket and threw it on the ground.
  Amazingly, the judge ruled that probable cause did not exist to make 
the arrest or stop, and suppressed the stolen cash. She also suppressed 
the in-court and out-of-court identifications.
  Now, police have a responsibility and a duty to be on the streets to 
try to protect us from crime. The Supreme Court is clear, in my 
opinion, that these kind of stops by police officers when they have 
this kind of probable cause are constitutional. Here, the police saw 
the defendant throwing down a roll of money, he meets the description 
of a defendant, he is running a block and a half away--that is the kind 
of basis to make a stop. If we eliminate the ability of police to make 
that kind of good, heads-up police work because some judge says it 
violates the search and seizure law, we are in real trouble. The law 
does not say that is illegal. In fact, the Supreme Court of the United 
States, and I am sure the Supreme Court of Pennsylvania, holds 
regularly that those kind of searches with probable cause are 
legitimate and constitutional
  In Commonwealth v. Hicks, the defendant was charged with robbery, 
theft, receiving stolen property, aggravated assault and simple 
assault. The defense made a motion for continuance because a police 
officer that the defense had called did not show up to testify, even 
though he had been subpoenaed. Judge Jackson ruled that the officer was 
under the State's control and forced the prosecution to dismiss or 
nolle pros the case. When the prosecution refused to nolle pros the 
case, she dismissed the charges.
  Judge Jackson's order dismissing that case was reversed by the 
appellate court and the charges were reinstated. The appellate court 
noted that the prosecution was ready to try the case, the prosecutor 
was ready to try the case. What wrong had he or she done? The only 
motion before the court was a defense request to continue the case 
until he got his witness there. Judge Jackson could simply have granted 
the motion by the defendant to continue the case instead of dismissing 
the charges.
  Prosecutors don't like to resist judges. They have to practice before 
them on a regular basis. It is something that they have to do. I say, 
from my reading of those facts, that that prosecutor was probably a 
young person not long out of law school, hustling to handle a whole 
bunch of cases, and just would not knuckle under. He was not going to 
nolle pros that case because there was no basis for it. Why would she 
dismiss it and cause the State to go to the incredible expense of 
appeal is not rational to me. It does not suggest that we have an 
evenhanded justice in Judge Jackson's courtroom. In fact, just the 
opposite.
  Mr. President, there are a number of other things that we could say 
about this with regard to sentences. I asked Judge Jackson about this 
at the Judiciary Committee hearing. The State of Pennsylvania has some 
sentencing guidelines. They are pretty broad. They are not as strong 
and not as tight as the Federal guidelines but they are significant. 
You carry a gun during the commission of a crime, you have another 5 
years you have to serve. It has to be 5 years for that gun, regardless. 
If you are convicted of aggravated assault, felony-one, then you are 
looking at 10 to 20 years in jail.
  Under the sentencing guidelines, according to her own numbers 
presented by Judge Jackson, she departed from the sentencing guidelines 
twice as much as other judges in Philadelphia. What I don't think those 
numbers show and what would make them even more dramatic, they don't 
show the instances that appear to be so regular in which she convicted 
the defendant of a lesser offense than which he was charged.
  The District Attorney's Association have provided some 50 cases that 
show, time and time and time again, that this judge convicted the 
defendant on a lesser offense than what they were charged when it would 
seem it was almost impossible for the defendant not to be convicted on 
a higher and more serious offense.
  For example, Commonwealth v. Sprewall, the defendant ordered a friend 
to shoot the victim but the friend refused. The defendant took the gun 
from the other defendant's hand. The defendant's brother then tried to 
stop the defendant, but he pushed away his brother and fired over five 
shots at the fleeing victim, hitting him in the stomach, thigh, 
buttocks and leg. The victim slipped in and out of consciousness when 
he was admitted to the hospital where he spent 3 weeks. One of his toes 
had to be amputated and he had to use a colostomy bag for 10 months 
following surgery. Despite this plain evidence of serious bodily 
injury, in Philadelphia if you commit an aggravated assault that causes 
or attempts to cause serious bodily injury then you have been convicted 
of felony 1, 10 to 20 years.
  An injury is defined as serious if it causes the protracted 
impairment or loss of a bodily member, organ, serious or permanent 
disfigurement, or a substantial risk of injury. The classic example of 
aggravated assault in a first-degree felony is the shooting of a gun at 
a person. You don't even have to hit him. If you were trying to then 
you are attempting to cause serious bodily injury. This person was hit 
a number of times.
  Despite this plain evidence of serious bodily injury, the judge 
convicted the defendant of only felony 2, aggravated assault, causing 
nonserious injury, on the dubious theory that there might have been 
more than one shooter and that the defendant's intent to cause serious 
injury was somehow in doubt. Thus, the court aborted having to impose 
the 5-year mandatory minimum sentence for felony 1 aggravated assault. 
The judge then sentenced the defendant from 15 to 30 months, one-
quarter of the minimum required sentence that he would have faced had 
he been convicted under the more serious offense.
  According to the report, it goes on to say that had this defendant 
been sentenced to the mandatory minimum of 5

[[Page S560]]

years imprisonment, using a gun, that he would still have been serving 
his sentence in 1993 when he was at that time arrested again for 
gunpoint robbery, and he would have been in jail in 1994 when he was, 
again, on two occasions, arrested for gunpoint robbery.
  In another case, the defendant shot the victim, hitting him in the 
chest and back. The victim had to undergo emergency surgery and spent 
2\1/2\ weeks in the hospital with the first 3 days in intensive care. 
Despite this clear evidence of a felony-one aggravated assault, the 
court found the defendant guilty of only second-degree aggravated 
assault. The defendant was then sentenced to 2\1/2\ to 5 years instead 
of at least the minimum sentence of 5 to 10 years.
  I think I misspoke. I believe the minimum sentence under a felony-one 
sentence would be 5 to 10 years, instead of 10 to 20.
  I will not continue to discuss those cases, but there are many of 
them. There are some 50. They are replete with just these kinds of 
circumstances in which serious cases are reduced and the defendant is 
found guilty on a lesser charge. For the most part, a judge's decision 
to do this is unreviewable; that is, there is no way the prosecutor can 
appeal because the failure to convict on the more serious charge is an 
acquittal on that charge. And the judge being the finder of fact, 
jeopardy attaches. That is a final judgment.
  Under the double jeopardy clause of the United States Constitution, 
and I am sure the Pennsylvania Constitution, criminal defendants can't 
be tried again for that same offense. So it is over. That is a final 
decision. So the judge has this unreviewable power. Some people do not 
realize what the power of a judge has. They have this unreviewable 
power to make certain findings of fact that can never be reviewed. And 
the prosecutor and the victims in separate and subsequent offenses have 
to live with that. There is nothing they can do. You can't sue a judge. 
They have immunity. Judge Learned Hand said this about Federal judges: 
``There is nothing they can do to us. They can't fire us, and they 
can't even dock our pay.''
  So we are considering this nominee who has a lot of good friends and 
has been actively involved in her community. I am not saying anything 
about that. I am just saying that I am confident, based upon my review 
of this record, that this nominee has an unhealthy bias against law 
enforcement. It is the kind of bias that I must say is disqualifying. 
It suggests that she ought not to be confirmed to a lifetime 
appointment. At least in Philadelphia she has to come up for election 
or review and can be removed from office if she continues to act in a 
way that is arbitrary and capricious and unjustified. But when we 
appoint somebody as a Federal judge, then they have it for life.
  Let me say this: It is a difficult task. It is an honor to be 
nominated. I know this is not a pleasant thing for Judge Massiah-
Jackson to go through. She is still a State judge, and will be able to 
continue as that. And perhaps this will cause her to reevaluate whether 
or not she has been objective in this process of handling criminal 
cases. If so, then some good will come out of that.
  I respect the Senators from Pennsylvania. This is not their nominee. 
This is the President's nominees. He chose this nominee. He had 
background checks done on this nominee. He is the one that submitted 
this name to the U.S. Senate. He asked us to vote on it. I am ready to 
vote. If people feel like we need another hearing to talk some more 
about it, so be it. I am ready to vote. The President asked us to vote. 
I am prepared to vote, and I am prepared to vote no.
  Thank you, Mr. President.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, let me congratulate the Senator from 
Alabama for his professional discussion of today, and I think that the 
Senator from Alabama has raised questions which require an answer. I 
think that we will give Judge Massiah-Jackson an opportunity to respond 
to the questions which the distinguished Senator from Alabama has 
raised.

  Mr. SESSIONS. Mr. President, will the Senator yield?
  Mr. SPECTER. I do.
  Mr. SESSIONS. I would like to say that whereas I concluded at the 
hearings that this nominee had these kind of tendencies based on what I 
saw, a majority of the committee did not agree with that, and we did 
not have the overwhelming amount of evidence that we have now. I say 
that in all due respect to the Senator from Pennsylvania. He had a 
hearing in Pennsylvania. These things did not come up at that time. I 
understand. I don't criticize the district attorneys and the police. 
They don't like to be involved in this. But I think they had to. They 
felt they had to come forward, and they did. I think it is time now for 
us to do our job. I wanted to say that in respect to the Senator from 
Pennsylvania.
  Mr. SPECTER. Mr. President, I understand that the Senator from 
Alabama voted against Judge Massiah-Jackson at the committee level and 
had raised questions about Judge Massiah-Jackson so that he felt those 
questions were sufficient at that time for him to make his judgment. I 
respect his judgment. He has raised quite a number of additional 
questions today. And when he cites these cases about making a finding 
of a lesser included offense, he accurately states the law that those 
matters are not reviewable, that is the conclusion of the case.
  On a number of other matters which he has raised, those matters are 
reviewable; that where Judge Massiah-Jackson has made the decision to 
suppress evidence, that is a reviewable matter. So when she makes that 
judgment, her decision can be overturned. And where she made the 
judgment to order a nolle pros of a case, that was subject to review as 
well.
  When the Senator from Alabama was present at the hearing, we 
discussed a number of those cases. We have both been prosecutors. We 
know the evidentiary rules, and some matters may be reviewed. Judge 
Massiah-Jackson made quite a number of judgments which were subject to 
review, and on a good many of them she was upheld.
  When the Senator from Alabama raises questions about what the police 
community has stated, I understand that and respect that.
  We received one letter from the Grand Lodge of the Fraternal Order of 
Police citing a case where Judge Massiah-Jackson did some things that 
they write to disagree with. On that particular case, it went for 
appellate review, and the Appellate Court of Pennsylvania upheld Judge 
Massiah-Jackson. So the issue would be that these police officers and 
police officials will have an opportunity to testify about the 
specifics as to their judgment or whether their judgment might differ 
if they knew what had happened on appeal in the case.
  When the Senator from Alabama talks about ``why will the judge 
identify police officers in court,'' that is the case referred to by 
Senator Hatch earlier where those officers have already testified in 
court.
  In raising questions about why Judge Massiah-Jackson would take 
action in a variety of contexts, I think those are fair and appropriate 
questions. I think those questions are appropriate for Judge Massiah-
Jackson to have an opportunity in which to respond. To the credit of 
the Senator from Alabama, when we had the hearing, he was there and he 
was asking those questions.
  I think it is not irrelevant to comment that there have been a number 
of convictions of police officers in the Federal court in Philadelphia 
recently for falsifying evidence in drug cases. Several hundred cases 
have been dismissed by the District Attorney of Philadelphia. The city 
of Philadelphia has paid out some $11 million in damages where you deal 
in a certain context and certain sections of a big city like 
Philadelphia. It may differ from some other communities. I came to 
Philadelphia from Russell, KS, and the differences were absolutely 
gigantic.
  When I was District Attorney in Philadelphia for 8 years after being 
assistant DA for some 4 years, I had many very strong disagreements 
with the judges. In one case, I was held in contempt of court in my 
battle on a sentence on a narcotics case, Commonwealth v. Arnold Marks. 
I still remember it. It only happened 28 years ago--4 ounces of pure, 
uncut heroin. And I thought the sentence was insufficient. I battled 
with the judge.
  The judges in Philadelphia when I became DA used to come to court 
late and leave early. I sent my detectives

[[Page S561]]

into court to write down the time they arrived and the time they left 
for lunch and the time they got back and the time they quit. Very 
frequently, court was supposed to run 10 to 12:30 and 2 to 4--4\1/2\ 
hours on the bench, not a straining schedule. But they had jobs to do 
in chambers. But the common practice was to arrive a few minutes before 
11, work to about 12:10, come back at 2:50 and leave about 3:20. So I 
sent detectives in to court to write down the times.
  Soon thereafter, one of my detectives was held in contempt. I went 
down to the court. I said to the judge, ``You can't hold him in 
contempt. I did the order.'' I was the District Attorney. ``If you are 
going to hold anybody in contempt, you have to hold me in contempt. You 
can't hold me in contempt because anybody can come in open court and 
write down the times you come and go.''
  Later, I got the Chief Justice of Pennsylvania to issue an order that 
judges had to sit from 9:30 to 5. We petitioned for reconsideration of 
sentences.
  This business about battling with the judge is something a District 
Attorney has to do. That is the appropriate role of a public 
prosecutor. When the District Attorneys have raised questions, I think 
that is within their rights. The police officers have raised questions. 
I think that is within their rights.
  But let's hear what Judge Massiah-Jackson has to say. The Senator 
from Alabama raised a number of questions. He can't understand why a 
judge would do that. And it is a little different milieu. Let us hear 
what she has to say. When we have all the facts, I consider myself, as 
I said earlier, a juror. I have taken an oath as a U.S. Senator and as 
a juror. I am prepared to hear both sides and to make a judgment. I 
think the hearings will be held in the light of day. There will be full 
disclosure. There is ample opportunity for public scrutiny, as there 
should be, and we will make the determination on the facts and on the 
merits as to whether this nominee should or should not be confirmed.
  I thank the Chair.
  I yield the floor.
  Mr. SANTORUM addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I want to associate myself with the 
remarks of my colleague from Pennsylvania. I too feel that we here in 
the Senate, when it comes to justice, really should be jurors, and that 
we should get all the information. The information shared, I think, as 
correctly stated by my colleague from Pennsylvania and by the Senator 
from Alabama, was well presented. But that is information that we 
received from the District Attorneys Association opposed to her 
nomination, without any rebuttal or explanation from Judge Massiah-
Jackson. I will admit that some of those cases I find it hard to find 
out what a good explanation would be. But that is not for me to 
prejudge, nor as a juror should you prejudge those things.
  So I am willing to listen. I think she needs to be given an 
opportunity.
  The leader has not been on the floor since we brought up this 
nomination. I am not too sure that we are going to get a resolution 
today as to how to proceed with her nomination. But I am hopeful that 
either this evening or sometime tomorrow we will be able to come up 
with a plan on how we are going to proceed with her nomination and have 
her nomination received in a fair fashion.
  Again, I respect her. I think Senator Hatch and Senator Leahy 
mentioned that a hearing by the Judiciary Committee would accord the 
judge an opportunity to face this new information and respond to it, 
and give the police and the prosecutorial community an opportunity to 
present such evidence and such testimony to the committee that they 
believe is important for us to consider.
  So I hope that a full committee hearing goes through, if necessary. I 
am not on the committee. So I can charge them with whatever I please 
because I don't have to sit through it; but at least take a number of 
these cases as a representative sampling of these cases and go through 
them one by one and make a determination as to the justification that 
Judge Massiah-Jackson had in making these decisions.
  So I am hopeful that that is the next order of business, that somehow 
or other we can come to some accommodation with the leader, who I know 
wants to vote on this nominee as quickly as possible in response to the 
President's urgings of up-or-down votes on his judges. I know that many 
here, as you heard, would like to vote on this judge today. We are not 
going to vote on this judge today. Senator Specter and I don't want to 
vote on this judge today, and I believe there are many Members on the 
other side of the aisle who don't want to vote on this judge today. But 
we would like the judge to be given a chance and then to have a vote. 
Let's let the string run out, if you will, give her an opportunity to 
respond, have a vote somewhat promptly thereafter, and then let the 
Senate act as the jury, which we know it is very good at doing.
  Mr. President, with that I will yield the floor and suggest the 
absence of a quorum.
  The PRESIDING OFFICER (Mr. Smith of Oregon). The clerk will call the 
roll.
  The bill clerk proceeded to call the roll.
  Mr. KENNEDY. 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. KENNEDY. Mr. President, I ask unanimous consent to proceed as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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