[Congressional Record Volume 144, Number 9 (Tuesday, February 10, 1998)]
[Senate]
[Pages S564-S566]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The Senate continued with consideration of the nomination.
  Mr. ASHCROFT. Mr. President, I rise to continue my argument and my 
debate in regard to this candidate for Federal judgeship nominated by 
President Clinton.
  Earlier in the day, I had raised several objections to this 
particular nomination, and in response to my objections, a number of 
answers were developed on the part of the Senator from Pennsylvania. I 
want to return to my objections. I think they are well-founded, I think 
they are important, and I think they should be observed and understood 
by the Senate.
  I raised the objection today that the absence of judicial temperament 
on the part of this judicial nominee was an infirmity which should be 
considered by the Senate. In particular, I said that she had used the 
foulest of profanities known to the English language in open court and 
in reference to a prosecutor.
  In explaining that, a proponent of this nomination indicated, ``Well, 
everyone has used profanity at one time or another.'' Let me just point 
out that I think the use of profanity in open court by the judge 
presiding over the court is different than the fellow who hits his 
finger with a nail while fixing the fence in the backyard. As a matter 
of fact, I think it would be important for me to just outline just what 
happened in this instance.
  In the case of Commonwealth v. Hannibal, in response to a 
prosecutor's attempt to be afforded an opportunity to be heard--the 
prosecutor was asking for the judge's attention--the following exchange 
took place on the record:

       The Court [judge]: Please keep quiet, Ms. McDermott.
       Ms. McDermott [for the Commonwealth]: Will I be afforded--
     --
       The Court: Ms. McDermott, will you shut your [blanking] 
     mouth?

  Judge Massiah-Jackson was formally admonished by the Judicial Inquiry 
and Review Board for using intemperate language in the courtroom.
  I realize she has apologized in this respect for having done so, but 
I think it tells us something about the temperament of the individual 
involved. I don't think it is very instructive just to concede that 
other people may have used profanity at some place or on the ball field 
or in the cloakroom. The use of profanity in this Chamber would be a 
serious affront to this Chamber, as would any personal attack or other 
indiscretion or discourtesy in this Chamber. But let me go to a second 
example that relates to the judicial temperament displayed by this 
individual.
  The case of Commonwealth v. Burgos and Commonwealth v. Rivera. During 
a sentencing proceeding, the prosecutor told Judge Massiah-Jackson that 
she had forgotten to inform one of the defendants of the consequences 
of failing to file a timely appeal. Such a failure would prejudice the 
Commonwealth on appeal. Judge Massiah-Jackson responded to this legal 
argument with profanity, stating: ``I don't give a [blank],'' and the 
word is probably imaginable.
  A district attorney, John Morganelli, the Democratic District 
Attorney of Northampton County, Pennsylvania, has suggested that the 
reason there are not more instances of this foul language on the record 
is that Judge Massiah-Jackson's principal court reporter routinely 
``sanitized the record,'' and the instances I have referred to here 
occurred in settings where, according to District Attorney Morganelli, 
there was not the regular court reporter.
  Now, I know that people lose their temper and that people use 
profanity, but I think these incidents reflect the absence of the 
requisite judicial temperament, but I think it reflects more than that. 
When you indicate to officers of the court that you are disparaging 
their character, when you describe someone's mouth with foul language, 
you are not just using foul language, you are attributing a character 
deficit to an officer of the court, a prosecutor. I think that is 
unacceptable.
  Perhaps those would be the kinds of things to be ignored or 
overlooked or to pass by, but I find it disconcerting. I find it 
disconcerting that it would be suggested that, well, since everybody 
uses profanity, it's OK for judges to use profanity in open court.
  I raised the issue earlier today of the contempt for prosecutors and 
police officers on the part of Judge Massiah-Jackson. It was suggested 
that the fact that she revealed two undercover police officers and 
pointed them out to be observed in the courtroom was a way of 
threatening their safety, because drug dealers would have an extra 
chance to look at them and know who they are and to be cognizant of the 
fact that they might be persons from whom a drug buy might be made 
sometime and, be careful, these people would be part of a prosecution 
effort.
  The Senator defending the judicial nominee of the President 
indicated, ``Well, these people had already testified in court, so it 
perhaps didn't matter.'' Well, it may not have. It may have been that 
during the testimony, they were seen by the other people. But let's 
look exactly at what Judge Massiah-Jackson said about these individuals 
and see if it tells us something about whether or not we would want 
this kind of person to be a Federal judge appointed for life, a Federal 
judge endowed with the authority of the United States of America, 
answerable to no one.
  As the officers were leaving the courtroom, the judge told spectators 
in the court:

       Take a good look at these guys and be careful out there.

  I submit to you that for a judge to say, take a good look at these 
police officers and basically say, ``Watch out for them, they're the 
guys who might apprehend you in your nefarious activities,'' tells us 
something about the judge.
  I quoted earlier the president of the Philadelphia Fraternal Order of 
Police, who said that the officers involved felt like this was a threat 
to them, that it would expose them additionally to bodily harm.
  It was suggested by a Senator defending the nomination that that was 
unreasonable, and it may not be as big a threat as some might think it 
to be,

[[Page S565]]

but Detective Sergeant Daniel Rodriquez confirmed the outrageous 
courtroom incident in a signed letter to the Senate. The detective 
sergeant had the following comments regarding this incident:

       I thought ``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 put us in physical danger.

  It may well be that there are arguments that could be expressed in 
the Senate a couple hundred miles away that it really didn't put these 
officers in danger. I can't really say whether it would or it wouldn't, 
but I am prepared to take the word of the police officer involved, and 
I am prepared to consider his statement to be honest, and I am prepared 
to understand that he feels restrained now as a police officer in a way 
that he wouldn't have felt restrained previously.
  It appears to me that Judge Massiah-Jackson was willing to make 
statements which would impair the capacity of police officers to 
function. Detective Sergeant Daniel Rodriquez felt strongly enough 
about it to make such a comment in writing.

  Detective Terrance Jones, the other undercover officer that was 
identified and disclosed and about whom the warning was issued to the 
people in the courtroom by Judge Massiah-Jackson, also confirmed the 
facts of the situation in a signed statement to the committee staff. He 
stated that the ``comments jeopardized our lives.''
  It may be that there are those on the floor of the Senate who don't 
take the comments that seriously. I really think that Judge Massiah-
Jackson must not have taken seriously the threat to the integrity of 
these officers; she must not have believed them. Maybe some Senators 
don't believe them either. But Detective Jones said that the comments 
of the judge jeopardized the lives of police officers. Maybe not, but I 
would tend to think if I were an undercover police officer, that kind 
of exposure and identification, even if you had already testified, they 
must have felt that there was something there that was substantially 
threatening.
  He wrote in his letter:

       As a law enforcement officer who happens to be an African-
     American, I am appalled that self-interest groups and the 
     media are trying to make the Massiah-Jackson controversy into 
     a racial issue. This is not about race, this is about the 
     best candidate for the position of Federal judge.

  And it is obvious he doesn't think the best candidate is Judge 
Massiah-Jackson after she, in fact, jeopardized his life, according to 
him.
  Earlier today, I also raised the point about contempt for prosecutors 
and police officers, and that seemed to be construed as some sort of 
inappropriate attack.
  In this case, let me talk about another example, Commonwealth v. 
Hicks. In an action that led to a reversal by the appellate court, 
Judge Massiah-Jackson dismissed charges against the defendant on her 
own motion.
  Although the prosecution was prepared to proceed, the defense was not 
ready because the defense was missing a witness. A police officer who 
was scheduled to testify for the defense apparently had not received 
his subpoena. The defense requested a continuance, saying, ``OK, we'll 
try this later. We'll clear up this mixup concerning the subpoena.'' 
The Commonwealth stated it had issued the subpoena.
  The defense did not allege any wrongdoing or failure to act on the 
part of the Commonwealth. It did not say the Commonwealth failed to 
issue the subpoena, that they fouled this up, that the case was fouled 
up as a result of misdeeds on the part of the State or the 
Commonwealth.
  Nevertheless, without any evidence or prompting from the defense 
counsel, Judge Massiah-Jackson simply did not believe that the 
Commonwealth's attorney subpoenaed the necessary witness. So here you 
have the defense unprepared to go forward, and the judge held the 
Commonwealth liable for the defense's unpreparedness, and on the 
court's own motion dismissed the case.
  Here is a judge that expresses her contempt for the court and the 
prosecutors, profaning the court and profaning the prosecutors. Here is 
a judge who expresses her contempt for police officers by 
inappropriately identifying them and warning the community against 
police officers. You have a judge who is willing to dismiss cases on 
her own motion even when the defense is willing to just take a 
continuance to clear the matter up and to bring the witnesses to court.
  What it turns out to be in the case is that the missing defense 
witness had been on vacation. The subpoena had been issued by the 
Commonwealth. The officer had not received it, but the Commonwealth had 
done everything it possibly could to issue the subpoena to help assist 
the defense in the preparation of the trial by providing the necessary 
witness. And Judge Massiah-Jackson's decision obviously was reversed on 
appeal as an abuse of discretion. But it tells us something. It tells 
us something about this judge and this judge's attitude toward police 
officers and prosecutors.
  The appellate court concluded, having carefully reviewed the record:

       We are unable to determine the basis for the trial court's 
     decision to discharge the defendant. Indeed, the trial court 
     was unable to justify its decision by citation to rule or 
     law.

  When a judge does something and cannot cite any rule or any law to 
support it, the judge is just imposing her own preference, her own 
personal preference in the matter.
  The imposition of judges' personal preferences is one of the real 
challenges we face in this country in a crisis of what I call 
``judicial activism.''
  One of the other issues I raised regarding Judge Massiah-Jackson is 
the issue of leniency in sentencing.
  Here is an example. Commonwealth vs. Nesmith. The defendant had a 
criminal history of 3 prior juvenile arrests and 1 adjudication, 19 
prior adult arrests, 8 convictions, 3 commitments, 3 violations and 2 
revocations. If we were at the right season of the year we could then 
end with ``and a partridge in a pear tree.'' Nineteen prior arrests, 8 
convictions.
  He was tried and convicted of striking a pedestrian with his car, 
leaving her seriously injured--broken legs, pelvis, four bones of the 
back--by the side of the road, fleeing the scene of the crime, and then 
beating into unconsciousness one of the woman's relatives who tried to 
thwart his escape. Judge Massiah-Jackson sentenced him to 2 years' 
probation--probation. This is an individual with eight previous 
convictions. Judge Massiah-Jackson sentenced him to 2 years' probation, 
a sentence that deviated more than 3 years below the lowest point of 
the standard range of the guidelines and more than 2 years below even 
the lowest point of the mitigated range.
  The defendant committed these crimes while on parole, having just 
been released from prison for an assault conviction. Over the 
Commonwealth's strenuous objection, Judge Massiah-Jackson sentenced him 
to 2 years' probation. Judge Massiah-Jackson, however, explained that 
the defendant's actions were ``not really criminal. He had merely been 
involved in a car accident.''

  You wonder about a judge who can look at an individual who hits a 
pedestrian, flees the scene of the crime, beats into unconsciousness 
one of the women's relatives who tried to thwart his escape, and then 
characterizes the activity as merely being the activity of one who has 
been involved in a car accident.
  Here is another instance of leniency in sentencing.
  Commonwealth vs. Freeman. The defendant shot and wounded Mr. Fuller 
in the chest because Mr. Fuller had laughed at him. I don't know how 
you know someone is laughing at you or whether they are laughing 
because they just have a thought of something funny. In any event, the 
defendant shot and wounded Fuller in the chest because Fuller had 
laughed at him.
  Judge Massiah-Jackson convicted the defendant of a misdemeanor 
instead of felony aggravated assault. She sentenced him to 2 to 23 
months--not 2 to 23 years--2 to 23 months, and then immediately paroled 
him so that he did not have to serve jail time. The felony charge would 
have had a mandatory 5- to 10-year prison term. Judge Massiah-Jackson 
explained her decision, stating that ``the victim had been drinking 
before being shot''--the victim had been drinking before he was shot--
``and that (the defendant) had not been involved in any other crime 
since the incident.''

[[Page S566]]

  I think the people of the United States of America deserve a judge 
who will say that an individual who shoots someone, perhaps for smiling 
or laughing, is an individual who deserves a serious sentence.
  Here is yet another example of lenient sentencing, Commonwealth vs. 
Burgos. During a raid on the defendant's house, police seized more than 
2 pounds of cocaine, along with evidence that the house was a 
distribution center--2 pounds of cocaine. The street value of 2 pounds 
of cocaine is astronomical.
  The defendant, Mouin Burgos, was convicted. Judge Massiah-Jackson 
sentenced the defendant only to 1 year's probation. Then-District 
Attorney Ron Castille criticized Judge Massiah-Jackson's sentence as 
``defying logic'' and being ``totally bizarre.'' He commented:

       This judge just sits in her ivory tower . . .. She ought to 
     walk along the streets some night and get a dose of what is 
     really going on out there. She should have sentenced these 
     people to what they deserve.

  Well, earlier this afternoon I had the privilege of relating the fact 
that virtually the entire law enforcement community of Pennsylvania has 
noticed this predisposition to be antagonistic to law enforcement.
  The Executive Committee of the Pennsylvania District Attorneys' 
Association voted unanimously to voice their objection to the 
appointment of this individual to the Federal bench. The Fraternal 
Order of Police, both locally and nationally, has expressed its 
opposition to this nominee. And frankly, the Democrat district attorney 
in Philadelphia sent a letter saying this is the worst judge that she 
had ever seen. The letter also states her opinion that whoever is 
appointed to the Federal district court for that district should be a 
black woman--that they need to have a black woman on the bench there--
but also stating that Judge Massiah-Jackson cannot be the one.
  It takes real courage for a district attorney to say that about a 
judge who will stay in her current role if the Senate heeds the warning 
of the district attorney. And the district attorney will have to 
continue to send prosecutors into that court and be involved in that 
legal environment. But not only did District Attorney Abraham from 
Philadelphia, who is a Democrat, make such a contention, District 
Attorney Morganelli also made the same kind of statements, saying that 
we really have no business confirming an individual whose record is so 
replete with this kind of abuse.
  These points are points that I believe are easily understood. It 
takes a substantial amount of effort to obscure these points. But these 
points are understood--and they are painfully understood by those who 
are closest to this situation and involved in the courts on a daily 
basis: the police officers and prosecutors. Obviously, we would not 
expect defense attorneys to be here objecting to this nominee.
  This nominee lacks the fundamental commitment to the judicial system, 
to respect it, and to respect the participants of it. She has 
demonstrated that on many occasions. And profanity in the courtroom is 
important. It reflects a disregard for the court. But when it is 
profanity directed to officers of the court, it is a disregard for the 
system itself. And I do not think it is appropriate to minimize that. 
It makes a difference to me. I think it makes a difference to the 
American people whether or not we have judges who respect the 
institution over which they preside.
  I raise the issues about the antagonism to the police. It is pretty 
clear that when you warn the community to be careful of the police, to 
``watch out,'' that you reveal a disrespect for this system that we do 
not need to institutionalize on the Federal bench. And when you use 
virtually every contrivance that you could possibly imagine, and even 
then when the appellate court says there is no basis in law, no basis 
in rule that would support the kind of leniency that you find in some 
of these cases, I think it is pretty clear that we have an individual 
whose predisposition is so favorable to the violators of the law that 
those who would enforce the law and the need for the culture to enforce 
the law are at a serious disadvantage in a courtroom like that.
  It is clear to me--very clear to me--that this is a nominee whose 
resume does not merit reward, whose recommendation by the President 
should be withdrawn rather than confirmed.
  During the closing hours of the session last year, prior to the break 
for the year-end recess, the Judiciary Committee was meeting. There was 
a debate over whether to send this nominee to the floor. And among 
those who are now saying that we have to have more meetings and more 
time in the committee were those who carried me to one of the anterooms 
off the committee room, and begged me, ``Let's send this to the floor 
so it can be debated on the floor.'' I said, ``I don't think this is 
appropriate to send to the floor.'' And they said, ``You don't have to 
support her on the floor, but do not stop the committee from acting to 
send her to the floor at this time.''
  Frankly, the rules of the committee would have made it possible for 
me at that time to have stopped this individual from coming to the 
floor. It just strikes me as ironic that those who prevailed on me to 
send this nominee to the floor, and to allow her to come to the floor, 
are now arguing that somehow those of us who want to vote on this 
candidate on the floor or a withdrawal by the President are doing an 
injustice--that somehow by accommodating them and providing a basis 
which would allow the candidate to make it to the floor, that we were 
now wanting to act on that candidate and somehow wanting to act 
inappropriately.
  I think all of that is just so much process--whether you had the 
committee hearings, and how many you had. The key to this whole 
situation is, what kind of information do you have? And do you have the 
capacity to make a good judgment about whether or not to confirm a 
nominee of the President of the United States?
  This nominee who disrespects the system, disrespects the 
participants, disrespects law enforcement, this nominee who has done 
virtually everything within her power to make it easy on those who have 
violated the law and tough on those who would enforce the law, does not 
merit our confirmation. The President ought to withdraw her nomination, 
and, absent that, the Senate should vote to reject this nomination for 
the Federal bench.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to depart from 
the regular order and enter a period of morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I ask to be recognized to speak in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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