[Congressional Record Volume 144, Number 10 (Wednesday, February 11, 1998)]
[Senate]
[Pages S628-S635]
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 U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA
The Senate continued with the consideration of the nomination.
Mr. SANTORUM. Mr. President, I rise to continue the discussion on the
judge of the Eastern District of Pennsylvania, Judge Massiah-Jackson.
Within the past 24 hours, I and Senator Specter have been talking to
the majority leader, to the chairman of the Judiciary Committee, to
those who are in opposition to her nomination in an attempt to resolve
a lot of issues. And what Senator Specter and I have referred to, to
complete this process of consideration in what we believe is the only
fair way to do so, is to have an additional hearing for her to be able
to respond to the information that has been presented so publicly now
to the Congress and the Senate with respect to her nomination.
The majority leader is intending to come down in the next 15, 20
minutes to make a statement, which I fully support, and I know Senator
Specter supports, which will, in a sense, move this nomination aside
for now and have this nominee be given the opportunity to appear before
the Judiciary Committee and answer this new information, or respond to
the questions of members of the Judiciary Committee.
That is all I have been asking for since the leader scheduled this
nomination. I am hopeful that after we go out on recess next week,
there will be scheduled a Judiciary Committee meeting for people who
have provided the information to present that information formally to
the committee, be questioned by committee members, and then for Judge
Massiah-Jackson to have the opportunity to answer the charges that have
been leveled against her.
That will complete, in my mind, the process of fair consideration.
Her nomination will remain here on the floor. It will remain on the
Executive Calendar, and subsequent to the hearing, the majority leader
will call the nomination up for a vote at that time.
That is, again, all I have been requesting from the leader--is to
give this process time to play out, fairness dictating the order of the
day, and then give the Senate the opportunity to pass judgment as to
whether we believe that she should be a judge in the Eastern District
of Pennsylvania.
So I see this as a very favorable resolution of what I have been
asking for in the past 24 hours.
I thank the majority leader for his patience. This has been somewhat
of a difficult ordeal having to juggle all the different sides on this
issue.
I thank the chairman of the Judiciary Committee for his willingness
to hold another hearing. He knows that he has not been formally
requested to do so by the Senate but has volunteered to make the
committee available to further give Judge Massiah-Jackson the
opportunity to respond to this new information that has been provided.
Mr. President, I know the Senator from Missouri has more to say on
this nomination. He is ready to go. So I yield the floor.
Mr. ASHCROFT addressed the Chair.
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. ASHCROFT. Mr. President, I rise to continue to explain the basis
for my opposition to the nomination of Frederica Massiah-Jackson to be
a U.S. district judge for the Eastern District of Pennsylvania.
Although I have already spent time on the floor detailing this
nominee's record, I think it is important and valuable to spend the
time necessary to demonstrate the serious flaws of this
[[Page S629]]
nominee and to also highlight the caliber of the nominees that we are
receiving from the President of the United States.
There are a number of categories into which my objections to this
nomination might fall.
One would be a disrespect for the court and its environment, perhaps
most clearly typified by the willingness of this nominee to use
profanity in the courtroom.
No. 2, a contempt for prosecutors and police officers that is
evidenced in the way she has treated them and handled them as they have
appeared in court and the way in which she has handled evidence
assembled by those officers.
Those are two major problems that I have with this particular
nominee.
No. 3, the concept of leniency in sentencing; the effort made by this
nominee as a judge in the State of Pennsylvania to reduce the sentences
which were given to those who had been convicted of crimes is notable.
It has, as a matter of fact, even caught the attention of the appellate
courts at which time those sentences have been reversed.
These are among the most important factors that lead me to the
conclusion that Judge Massiah-Jackson should not be confirmed as a
United States district court judge.
She should not be considered for a lifetime responsibility in
administering justice in the United States of America; that in the
event that the President refuses to withdraw this nomination, which he
should do, that the Senate of the United States of America should
reject this nomination.
Let me just go through some of these points in order to establish a
factual basis for these conclusions supporting the categories which I
have mentioned.
First is the contempt for prosecutors and police officers that Judge
Massiah-Jackson has evidenced in the conduct of her responsibilities as
a judge in Pennsylvania.
In the case of Commonwealth v. Ruiz, Judge Massiah-Jackson acquitted
a man accused of possessing $400,000 worth of cocaine because she did
not believe the testimony of two undercover police officers, Detective-
Sergeant Daniel Rodriguez and Detective Terrance Jones. It was the
second time she had acquitted alleged drug dealers nabbed by the same
officers. The first time, the two undercover officers testified that
they found two bundles of heroin on a table right next to the
defendant's hand. The judge not only refused to believe this testimony,
she went one step further. As the officers were leaving the courtroom,
the judge reportedly told spectators in the court: ``Take a good look
at these guys [the undercover officers] and be careful out there.''
This identification by the judge was reported in the Philadelphia
Inquirer.
Detective-Sergeant Daniel Rodriguez confirmed this outrageous
courtroom incident in a signed letter to the U.S. Senate. The
detective-sergeant had the following comments regarding the incident,
and I quote:
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 it put us in physical danger.
I really believe that this officer sincerely wrote that letter and
that he intended for the letter to say exactly what it said and that he
felt the sense of physical danger that was occasioned by the special
identification that the judge had made of him and another police
officer.
Detective Terrance Jones, the other undercover officer that was
identified by Judge Massiah-Jackson in open court, according to the
Philadelphia Inquirer, also confirmed the facts in a signed statement
to the committee staff. He stated that the comments ``jeopardized our
lives.'' Detective Jones also notes:
As a law enforcement officer who happens to be 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.
Let me go to another case, the case of Commonwealth v. Hicks. In this
case, 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 it was missing a witness--a police officer who was
scheduled to testify for the defense apparently had not received the
subpoena. The defense requested a continuance to clear up the mixup
concerning the subpoena. The commonwealth stated that it had issued the
subpoena. The defense did not allege any wrongdoing or failure to act
on the part of the commonwealth. Nonetheless, without any evidence or
prompting from defense counsel, Judge Massiah-Jackson decided she
simply did not believe that the commonwealth's attorney subpoenaed the
necessary witness. Judge Massiah-Jackson held the commonwealth liable
for the defense's lack of preparation for its own unpreparedness, and
Judge Massiah-Jackson, on the motion of the court, dismissed the case
without even the suggestion from the defense that the case should be
dismissed. The facts ultimately revealed that the subpoena had been
issued, but the officer was on vacation and had not received it. It was
not the fault of the commonwealth. Judge Massiah-Jackson's decision was
reversed on appeal as an abuse of discretion. The appellate court
concluded that, ``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.''
There is a lot of discussion about whether we need to send this
nomination back for additional information and for hearings before the
Senate Judiciary Committee.
This particular case, for instance, was discussed at the hearing.
When asked by a Senator if she had any comment or explanation of the
situation, Judge Massiah-Jackson just replied, ``No, Senator, I
don't.''
It occurs to me that it is not necessary to reconvene the committee
and to move this matter back from the floor of the Senate asking that
there be opportunities for explanations for cases like that when those
opportunities were available then.
Commonwealth v. Hannibal is a case that is demonstrative of this
particular nominee's lack of judicial temperament.
In court, in response to prosecutor's attempt to be afforded an
opportunity to be heard, the following exchange took place on the
record:
The Court. Please keep quiet, Ms. McDermott.
Ms. McDermott for the Commonwealth: Will I be afforded----
The Court. Ms. McDermott, will you shut your f***ing mouth.
That is from the transcript of June 25, 1985, at page 17.
Judge Massiah-Jackson was formally admonished by the Judicial Inquiry
and Review Board for using intemperate language in the courtroom. This
incident, incidentally, was also discussed by the committee with the
judge, and the conduct was admitted.
In 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. Of course, 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 [expletive deleted].'' This incident was discussed at the
committee hearing, and the conduct was also admitted.
District Attorney Morganelli of Northampton County, PA, has suggested
that the reason there are not more instances of foul language on the
record is that Judge Massiah-Jackson's principal court reporter
routinely ``sanitized the record.''
It does not appear to be a coincidence that both of these profane
outbursts were directed at prosecutors. Instead, Judge Massiah-
Jackson's foul language appears to be part and parcel of her hostility
to law enforcement.
Let me move to the issue of the leniency in sentencing which has been
characteristic, I believe, of this judge's record. In the case of
Commonwealth v. Freeman, the defendant shot and wounded a Mr. Fuller in
the chest because Mr. Fuller had laughed at him. Judge Massiah-Jackson
convicted the defendant of misdemeanor instead of felony aggravated
assault. She sentenced him to do 2 to 23 months and
[[Page S630]]
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, ``The
victim had been drinking before being shot,'' and the defendant ``had
not been involved in any other crime since the incident.''
Here we have an individual who shoots another individual, and this
judge not only makes it a misdemeanor so that the sentence can be
reduced from a minimum of 5 to 10 years to 2 to 23 months, but then
paroles immediately the individual so that no jail time is served after
the conviction. The judge explains this behavior saying that the person
who had been shot had been drinking as if somehow, I guess, if you are
drinking you are eligible to be shot; and that the defendant ``had not
been involved in any other crime since the incident.''
This case was not discussed at the hearing. No appeal was taken from
this case.
In the case of Commonwealth v. 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.
The defendant, Mouin Burgos, was convicted. Judge Massiah-Jackson
sentenced the defendant to only 1 year's probation.
Then District Attorney Ronald 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.''
This case was discussed at the hearing, and Senators and the judge
had an opportunity to explain their positions. No appeal was taken from
this case.
In the case of Commonwealth v. Williams, a first-degree robbery,
unreported sentencing reversal case, I would like to provide just one
more example of Judge Massiah-Jackson's leniency in sentencing, an
example that I think is also relevant to whether we should have another
hearing on this nominee.
In the case of Commonwealth v. Williams, the defendant robbed a 47-
year old woman on the street at the point of a razor. The defendant
used the razor to slash the woman's neck and arms and took her purse.
The defendant had to undergo surgery to repair the slashed tendons in
her hand and was forced to wear a splintering device that pulled her
thumb back to her wrist. The defendant pled guilty to first-degree
robbery. Under the Pennsylvania sentencing guidelines, that offense
carries a range of 4 to 7 years, with a mitigated range of 3\1/4\ to 5
years. Despite these sentencing ranges, Judge Massiah-Jackson sentenced
the defendant to a mere 11\1/2\ to 23 months. In order to do so, Judge
Massiah-Jackson not only had to deviate substantially below the
guidelines range but also had to ignore a mandatory weapons enhancement
that raises the minimum sentence 1 to 2 years. The Commonwealth did
appeal this meager sentence, and Judge Massiah-Jackson was reversed for
her sentencing errors.
Now, this decision is important not only because it demonstrates her
leniency in sentencing but also because of what it says about the
equity of giving Ms. Massiah-Jackson an additional hearing. We have
heard a lot about Judge Massiah-Jackson's right to be heard and have
been given the impression that she has been the victim of sandbagging
by her opponents. It is true that there is information that was not
available at the time of the committee's hearing. This sentencing case,
for example, was not addressed at the hearing. But why wasn't it
addressed at the hearing? That is no one's fault but Judge Massiah-
Jackson.
The committee's standard questionnaire asks every candidate to list
any judicial decisions which were reversed on appeal. Judge Massiah-
Jackson failed to list this case. Indeed, she testified that she had
never been reversed on a sentencing appeal. So if this case wasn't
debated or discussed at the hearing, it wasn't debated or discussed
because at the hearing she had failed to disclose this when the
committee had requested that she disclose it, and when asked
additionally if there were cases like this upon which she had been
reversed she informed the committee that she had not been reversed on
sentencing appeal when in fact this case represented such a reversal.
Now, it seems ironic to me that when we finally find out about the
existence of those things which she said did not exist, she should be
accorded a second hearing now to explain that which she failed to
disclose. I think that is a serious problem. This is not only a
failure-to-disclose problem but this is the disclosure of something
which was specifically denied in the hearing.
I make this point to make clear that this is not just a simple matter
of giving someone a right to confront new allegations. She had the
opportunity to respond to the allegations in this setting by providing
the evidence in the first instance, or the case or the notification
that she had been reversed on appeal, and in the second instance by not
denying that she had ever been reversed on appeal. It strikes me that
we are creating a troubling precedent by affording nominees a second
hearing at least in part to explain materials that were requested prior
to the first hearing.
Let me move on to the case of Commonwealth v. Smith. This is leniency
not just in sentencing but a predisposition on the part of this judge
to suppress evidence and to do so improperly.
Judge Massiah-Jackson has also demonstrated leniency in improperly
suppressing evidence. The case that perhaps most dramatically
illustrates this point is Commonwealth v. Smith, a case discussed by
the chairman of the Judiciary Committee in the Chamber yesterday. It is
a case that I also mentioned.
In this tragic case, the victim, a 13-year-old boy, was raped at
knifepoint in some bushes near a hospital. Eventually, the young boy
managed to run away from his assailant nude and bleeding. Two nurses at
the hospital saw him, and he told them what had happened, pointing out
the bushes where he was attacked. The two nurses called the hospital
security guards. They saw the defendant in the case emerge from the
bushes with his clothing disheveled and then saw him walk quickly away.
The women yelled out for the man to stop, and the police arrived on the
scene and apprehended the defendant.
The defendant denied raping the boy, but the police searched him and
found a knife matching the description of that used in the rape. At
that point the police arrested the defendant. Shockingly, Judge
Massiah-Jackson ruled that the police lacked probable cause to arrest
the defendant and suppressed all evidence, including the identification
of the defendant by the two nurses.
Now, not surprisingly, the appellate court, when confronted with this
dubious judgment, reversed Judge Massiah-Jackson.
So the situation is this, that Massiah-Jackson, lenient in
suppressing evidence, was reversed by the appellate court. It has been
pointed out, and I would thank Senator Specter for having so pointed
out, that after a remand to the trial court the defendant was acquitted
in a new trial before a different judge. But what seems to have
received less attention is that all this occurred after Judge Massiah-
Jackson was reversed by the appellate court. Unlike the second judge
who conducted a full trial, Judge Massiah-Jackson threw out the
evidence on the ground that the police lacked even probable cause to
arrest the defendant despite his proximity to the crime scene and the
victim, and the other facts that are attendant thereto, including the
identification by the individuals who were there at the time of his
arrest. It is, of course, one thing to acquit someone after a trial but
the notion that the police officers did not even have probable cause to
arrest the defendant is just shocking, and the appellate court agreed.
And the litany, incidentally, of illustrations regarding leniency in
sentencing could go on. Last year there were 50 separate cases that
were singled out just as exemplary of this leniency, but that was just
last year. And organizations, law enforcement organizations,
organizations that serve the culture by providing the safety and
security for persons and their property which defines a civilized
culture, have come out saying this individual should not be
[[Page S631]]
confirmed as a U.S. district court judge.
The Philadelphia Lodge of the Fraternal Order of Police announced its
opposition to the confirmation of Massiah-Jackson on January 13 of this
year. And just yesterday I had the privilege of attending a press
conference in which Philadelphia Fraternal Order of Police President
Richard Costello made his opposition to this nominee unmistakably
clear. The National Fraternal Order of Police announced its opposition
on January 20. In coming out against this nominee, here is what the
National President of the Fraternal Order of Police, Gilbert Gallegos,
stated: ``Judge Massiah-Jackson has no business sitting on any bench,
let alone a Federal bench.''
After describing the incident in which Judge Massiah-Jackson pointed
out undercover police officers in open court, Mr. Gallegos stated, ``I
cannot adequately express my outrage.'' The National Fraternal Order of
Police President concluded, ``To confirm Judge Massiah-Jackson would be
an affront to every law enforcement officer and prosecutor in the
Nation, all of whom have a herculean task of fighting crime. We
shouldn't have to have [both] the judges and the criminals against
us.''
I note the presence of the majority leader in the Chamber, Mr.
President, and I would gladly yield to the majority leader with the
understanding that at the conclusion of his remarks my right to speak
in the Chamber be retained.
The PRESIDING OFFICER. Without objection, it is so ordered. The
majority leader.
Mr. LOTT. Mr. President, I have had the opportunity now to discuss
this nomination with Senators on both sides of the aisle and those who
did support her and certainly those who are opposed to this nomination.
I think that we should not go forward to a vote at this time since
there are very serious allegations out there. I am convinced they are
true; I am convinced this nomination should not go forward; and I would
urge at this point the President withdraw this nomination because
clearly this nominee has very serious problems, conduct on the bench
that is certainly inappropriate and a number of concerns about the
nominee's attitude toward prosecutors and toward law enforcement.
Clearly this is the type of nomination that should not be confirmed.
But so that some of these articles, some of the cases, some of the
suggestions that are now in the public arena can be properly looked
into, I thought the best thing to do at this time would be to not go
forward with a vote and allow time for the committee to have a hearing
on the problems that have been identified. I don't think it can be
disposed of in the near future.
Having said that, I understand the chairman of the Judiciary
Committee will be conducting an additional hearing on the nominee
sometime when we return from the recess we are about to go into at the
close of business on Thursday or Friday. So we can see what that
hearing turns up. But I think that no further action can be taken at
this time. I thank all Senators for their consideration and will yield
the floor to the Senator from Missouri. I appreciate him yielding me
this time. And I know that the Senators from Pennsylvania will both
seek recognition so that they can comment on the present status of this
nominee.
Mr. SPECTER addressed the Chair.
The PRESIDING OFFICER. I believe the Senator from Missouri still has
the floor.
Mr. SPECTER. Mr. President, I ask unanimous consent that I be
permitted to speak in response to the majority leader for up to 1
minute.
Mr. ASHCROFT. Mr. President, I believe I have the floor.
The PRESIDING OFFICER. Is there objection?
Mr. ASHCROFT. Mr. President, I believe I have the floor.
The PRESIDING OFFICER. The Senator from Missouri does have the floor.
Does the Senator from Missouri object to the unanimous consent
request?
Mr. ASHCROFT. Mr. President, I observe the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent that further
proceedings under the quorum call be dispensed with.
Mr. ASHCROFT. Objection.
The PRESIDING OFFICER. Objection is heard.
The legislative clerk continued with the call of the roll.
Mr. ASHCROFT. 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. ASHCROFT. Mr. President, I had hoped to offer to the Senator from
Pennsylvania an opportunity to make brief remarks, and that is the
reason I placed the quorum call, for an opportunity to make that offer.
The nomination of Frederica Massiah-Jackson is a nomination which I
think should call us each to a very serious consideration of our
responsibilities here in the U.S. Senate. Judges who are appointed for
life, who really do not answer to the voters, do not answer to the
administration or the executive branch, have a very high degree of
power in the culture and we should be very careful about the
individuals that we endow with the authority of becoming Federal
judges. The National Association of Police Organizations understands
that and the National Association of Police Organizations announced its
opposition on January 22, to this nominee.
Further, there is opposition from the local law enforcement community
in Philadelphia, opposition from individuals that one would not expect
to ordinarily oppose a nominee except in extraordinary situations:
Lynne Abraham, who is the district attorney in the Philadelphia area--a
Democrat, someone you would expect to be aligned with the President and
his nominations--at great political cost, with substantial display of
putting the benefit of the community in Philadelphia above party
loyalty, came out against the nomination of Frederica Massiah-Jackson
in a letter to Senator Specter, at least that is my information, on
January 8. She wrote:
My position on this nominee goes well beyond mere
differences of opinion, or judicial philosophy. Instead, this
nominee's record presents multiple instances of 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.
This nominee's judicial service is replete with instances
of demonstrated leniency towards criminals, an adversarial
attitude towards police and disrespect toward prosecutors
unmatched by any other present or former jurist with whom I
am familiar.
That is a very serious charge from the prosecutor, someone of the
same party as the President who nominates this judge. I quote again:
This nominee's judicial service is replete with [full of]
instances of demonstrated leniency toward criminals, an
adversarial attitude toward police and disrespect toward
prosecutors unmatched by any other present or former jurist
with whom I am familiar.
The words ``full of'' were my amplification. Her text did not include
that.
Other local law enforcement officials who feel that this is a
nomination which should not go forward--the Northampton County District
Attorney, John Morganelli, another Democrat, announced his all-out
opposition to this nomination on January 6, 1998. Mr. Morganelli
provided members of the committee with a letter detailing the numerous
incidents of unprofessional conduct that have marked Judge Massiah-
Jackson's tenure on the State trial bench. The concluding paragraphs of
that letter are worth quoting at length:
[The] record is one of an unusually adversarial attitude
toward the prosecution and police. Much personal animosity
towards prosecutors and police in general. Other portions of
her record indicate a tendency to be lenient with respect to
criminal defendants.
I continue with his letter:
This judge sat as a fact finder in the vast majority of her
cases because criminal defendants almost always felt it
advantageous to waive their right to a jury trial in
order to present their case directly to the judge. * * * In
addition, she has shown a lack of judicial temperament with
respect to vulgar language from the bench on the record and
much of it off the record. Also, as indicated above, Judge
Massiah-Jackson has attempted to meddle with the appellate
process in Pennsylvania by contacting appellate courts and
improperly attempting to influence appellate decisions. Her
comments,
[[Page S632]]
conduct, record and lack of judicial temperament by itself
should call into question her stature to serve as a Federal
Judge.
Numerous District Attorneys and police organizations in the
Commonwealth of Pennsylvania oppose this nomination as a slap
in the face to the law enforcement community.
That is the conclusion of District Attorney Morganelli's letter,
opposing the confirmation of this judge.
In addition, the Executive Committee of the State of Pennsylvania's
District Attorneys Association has unanimously voted to officially
oppose the nomination. On January 8 the Executive Committee of the
Pennsylvania District Attorneys Association, in a unanimous vote,
officially opposed the nomination. The President of the association
wrote a letter on January 26, expressing the association's opposition.
I would just comment it is not usual for prosecuting attorneys, or
for district attorneys, or for police organizations to attack judges,
especially judges who are sitting as judges in their jurisdictions, the
same judges they have to go before on a regular basis in seeking to
effect justice in the society, to make sure we have the right law
enforcement, the right prosecution, the right conviction and the right
detention of those who have been deemed guilty of a crime. It is not
comfortable, it is not easy, it is not expected. It is, I think, fair
to describe it as rare, that someone would, as a prosecutor, or that
the association of prosecutors, or that the police, or the associations
of police, would come forward and make statements that say not only is
this the worst judge I have ever seen but this is the worst judge of
which I have any awareness. These are individuals who have a
substantial awareness of the judicial system as a result of their broad
experience in the system.
If my recollection serves me correctly, the district attorney in
Philadelphia, Lynne Abraham, is a former judge herself. She has an
ability to know what the circumstances of the judge's responsibilities
are. And when she comes forward to say that this judge is a judge that
is so out of touch with the balance necessary to accord fairness in the
system by being so predisposed to the defendant's position and
antithetical to the prosecutor's position, and antagonistic to the
position of the Commonwealth as opposed to that of the individual who
is seeking to be declared innocent of the charges, she just indicates
that we can do better. And I think that is really the case that we have
here.
The pool of legal talent in Pennsylvania is not shallow. We have
talked about Philadelphia lawyers all across the country for a long
time, because Philadelphia is known as a center for individuals who
know how to work with the law and to do it effectively, who know what
their responsibilities are and to make sure that those responsibilities
can be carried out in the best interests of their clients. And I
believe that there are those in that community who could well serve
this President as nominees and could well serve this country as
nominees. And I believe it is the responsibility of the U.S. Senate,
when you have a nominee who is not of the caliber and quality that is
appropriate for membership on the Federal bench, for the Senate to
stand up and say so. And I believe that is our responsibility here.
I don't believe that the Founding Fathers of this great country put
the U.S. Senate in the stream that leads to the Federal judiciary so
that it could act in a way which is a rubberstamp, so that it could
say, well, in spite of the fact that this individual is an affront to
the judicial system, disrespects it with profanity, disrespects its
participants by profaning them and their conduct, is so lenient with
criminals that it causes major questions, has to be reversed on
criminal appeals and, when asked about it, denies ever being reversed
until the appeals are found--I don't think we have to have that kind of
person. I don't think we are here to pass that kind of person through
to a lifetime tenure, to a system which will, really, give her great
latitude in imposing upon the people of this country the authority of
the United States in demanding or commanding adherence to the law. I
really think that we can do better. And I think we ought to do better.
It is not hard for us to do that. Surely we have cooperated 90, 95
percent--I don't know--of the time, that these cases go through. Most
of them never even get debated. This case was--they insisted that we
debate. When I was last at a committee meeting I thought we should not
move this case to the floor for debate. There was an outcry, a
substantial, significant outcry, insisting that we move this case to
the floor for debate. Now that we have moved it to the floor for debate
there is a substantial outcry to move it back to the committee.
I think the real fact of the matter is we know, we know enough about
this case to say this is not an individual that we want to welcome into
the lifetime tenure of the Federal judge. It does not mean the
individual cannot have merit, cannot do different things, is banished
from any other responsibilities. It is simply someone who is not suited
to be endowed with the authority of a Federal judge, a serious
responsibility in this society and culture.
I suppose we can let this individual go back for additional committee
hearings or additional deliberations. But in my view that is a mistake.
And, in my view there are times when the Senate should simply act as
the Constitution calls upon it to act, that is to either provide the
advice and consent which is appropriate and constitute the nominee as a
member of the judiciary or deny the advice and consent and move on
because America can and should do better.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I just want to thank the majority
leader, again, for his willingness to cooperate with both Senator
Specter and me in our request that Judge Massiah-Jackson's nomination
not be voted on here in the next few days but that the process be able
to be worked out and worked through, a hearing to be held. I know
Senator Specter, who cannot be here right now, fully supports this
process that we now have begun to get her a hearing in the Judiciary
Committee. And then I hope very promptly to bring her back to the floor
of the U.S. Senate for a vote.
I would not like to see this nomination hang out for a long period of
time after the hearing. I don't think that would be fair, again, to her
or to the process, or to the President who I know, in having
conversations with the White House, they would like to see this matter
be dealt with in an expeditious fashion after the hearing takes place.
A hearing will not be able to take place until the week after next
because we are not in session next week. So I am hopeful we can bring
this judge up for a final vote here in the U.S. Senate within a 3-week
period of time, maybe a 4-week period of time. I think that would be
appropriate for her and I think appropriate for the Senate at some
point to pass judgment on this nominee. I think it is important when
the President puts a nominee up who has had, certainly, the amount of
attention that this nominee has had, that the Senate, all Members, get
an opportunity to express their opinion as to whether this nominee has
the credentials and qualifications and qualities necessary to serve on
the Federal judiciary.
With that, I again thank the majority leader and thank my colleagues
for allowing this procedure. There are things that could have been
done. I talked to several of my colleagues about those things that
could be done. The Senator from Missouri and others would have liked to
vote today. In fact they could force a vote today. It is within the
right of any Senator on this nomination to offer a tabling motion,
which would bring the debate to a stop and cause a vote. They have
agreed to not do that and I appreciate that very much.
They could have derailed this effort. But their indulgence in
allowing what two home State Senators believe is a fair process, their
indulgence in allowing what we believe to be a fair process, in
acquiescing to those desires, is noble indeed and very much
appreciated. So I thank the Senators from Alabama, Missouri, and others
who have expressed a willingness to expedite consideration of this
nominee, for their willingness to withhold and allow the process to
work out just a few more weeks. And then take the nominee back to the
floor.
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There will be no vote in committee. She will not be recommitted to
committee. There will be no action necessary by the committee. Her
nomination will remain on the floor of the U.S. Senate and will be
eligible to be recalled by the leader at his discretion, which is our
understanding, subsequent to the hearing in the Judiciary Committee.
So that is the state of play, if you will, of this nomination, and it
is one I find wholly acceptable at this point. I know my colleague,
Senator Specter, does also.
Mr. THURMOND. Mr. President, I rise today to express my opposition to
the nomination of Frederica Massiah-Jackson for the United States
District Court for the Eastern District of Pennsylvania. I opposed this
nominee in Committee, and nothing has changed in the interim to make me
any more likely to support her.
I believe that the President is entitled to some deference in his
choice of judges for the Federal Bench, and I try to give his nominees
the benefit of the doubt. However, because of Judge Massiah-Jackson's
judicial temperament and record of leniency toward criminal defendants,
I cannot support her nomination.
Judicial temperament is an essential quality for judges. They must be
professional, civil, and fair. To earn esteem and honor, they must
exhibit dignity and be respectful of those who appear before them.
Unfortunately, Judge Massiah-Jackson has shown a lack of judicial
temperament while serving on the Pennsylvania trial court. She has used
profane language from the Bench, which I will not repeat here. There is
simply no excuse for a judge to use profanity in court.
Also, we have received numerous letters from bipartisan professionals
to the effect that she is hostile and unfair toward prosecutors and
police officers. The Pennsylvania District Attorneys Association, which
unanimously voted to oppose her nomination, wrote that she has ``an
anti-police, anti-prosecution bias'' and that her actions as a trial
judge ``at times . . . have bordered on the outrageous.'' The Attorney
General of Pennsylvania, Michael Fisher, has weighed in against her.
The National Fraternal Order of Police wrote that she ``has made a
career of dismissing out of hand testimony by police officers, treating
them as second-class citizens.'' The Philadelphia FOP echoed this
criticism, saying that her actions ``make it appear she is on a crusade
against public safety.'' The Philadelphia District Attorney, Lynne
Abraham, whose office prosecutes criminal cases within Philadelphia
where Judge Massiah-Jackson has served as a judge, was resolute. She
wrote that the ``nominee's record represents multiple instances of a
deeply ingrained and pervasive bias against prosecutors and law
enforcement officers, and by extension, an insensitivity to victims of
crime. The nominee's judicial demeanor and courtroom conduct . . .
undermine respect for the rule of law and . . . tend to bring the law
into disrepute.'' She then compared this judge to others stating,
``This nominee's judicial service is replete with instances of
demonstrated leniency toward criminals, an adversarial attitude towards
police, and disrespect and a hostile attitude towards prosecutors
unmatched by any other present or former jurist with whom I am
familiar.''
An example of the judge's hostility toward police that has created
much attention is an incident where she pointed out two undercover
narcotics agents and told those in her courtroom to take a good look at
the officers and, quote, ``watch yourselves.'' This story was published
in a Pennsylvania newspaper, and I asked her about it in writing during
the hearing process, which gave her plenty of time to reflect on the
matter. She responded, ``I have read the 1988 article and it is
inaccurate. I would not and did not make any such statement to the
spectators.'' However, the two undercover agents that the article
referred to later signed statements saying she had singled them out and
referred to them in this manner.
She has also made public comments about crime that warrant concern.
Although she informed me in response to a written question that she is
not opposed to imposing the death penalty, she was very critical of the
death penalty in a 1994 speech. Quoting Justice Harry Blackman, she
said, ``the death penalty experiment has failed.'' She added, ``It is
not a deterrent to criminal behavior.'' Later in the speech she said,
``Locking folks up is a belated and expensive response to a social
crisis.''
It is very unusual for us to receive opposition to a nominee for the
Federal Court from prosecutors and professionals as we have here. I
commend the prosecutors and police who have taken this bold stand. They
have brought a great deal of attention to a nominee who is simply not
fit to serve on the Federal court.
The public opposition to this nominee from prosecutors and police, in
addition to the information we had at the time she was considered in
Committee, should be more than enough for Senators to oppose her. It
should not even be necessary to consider cases and statistics that have
been brought to our attention in the past few weeks.
Let me close by referring again to the letter from the Fraternal
Order of Police. I quote, ``To confirm Judge Messiah-Jackson would be
an affront to every law enforcement officer and prosecutor in the
Nation. . . . We shouldn't have to have the judges and the criminals
against us.''
Mr. President, I agree. I will stand with prosecutors and police on
this nomination.
At this time, I ask unanimous consent to have printed in the Record a
copy of the letters that I quoted in my statement.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
Pennsylvania District
Attorneys Association,
Harrisburg, PA, January 26, 1998.
Sen. Orin Hatch,
Chairman, U.S. Senate Judiciary Committee, Dirksen Office
Building, Washington, DC.
Dear Members of the U.S. Senate Judiciary Committee: As
President of the Pennsylvania District Attorneys Association,
I am writing to express the Association's opposition to the
nomination of Judge Frederica Massiah-Jackson for a position
as a Federal Judge in the Eastern District of Pennsylvania.
As you may know, recently the Executive Board of the
Pennsylvania District Attorneys Association which speaks on
behalf of all 67 elected District Attorneys in Pennsylvania
voted unanimously to oppose the aforesaid nomination. We
recently met with Senator Arlen Specter and Senator Rick
Santorum of Pennsylvania in person to convey the sentiment of
District Attorneys in Pennsylvania.
A review of Judge Massiah-Jackson's record during her
tenure as a Criminal Court Judge clearly shows that she has
exhibited an anti-police, anti-prosecution bias as a Criminal
Court Judge. At times, her actions as a Common Pleas Judge in
Philadelphia have bordered on the outrageous. She has used
profanity in her courtroom, embarrassed and exposed police
officers in her courtroom and has even interfered in the
appellate process by attempting to ``recommend'' to an
appellate court that a Commonwealth appeal of one of her
decisions be quashed. Given the prevalence of federal habeas
corpus appellate practice, especially as it related to
capital convictions obtained from state courts, the prospect
of seating a member to the Federal Judiciary with a record
like Ms. Massiah-Jackson's should give those involved in the
confirmation process pause and concern.
Therefore, I strongly urge all members of the Senate
Judiciary Committee and all members of the United States
Senate to oppose this particular nomination.
Very truly yours,
Michael D. Marino,
President.
____
Commonwealth of Pennsylvania,
Office of Attorney General,
Harrisburg, Pa, January 29, 1998.
Hon. Arlen Specter,
U.S. Senator, Washington, DC.
RE: Judge Frederica Massiah-Jackson.
Dear Senator Specter: I wish to express my opposition to
President Clinton's nomination of Judge Frederica Massiah-
Jackson to serve on the United States District Court for the
Eastern District of Pennsylvania.
I am writing on Judge Massiah-Jackson's nomination after
spending considerable time reviewing her record on the Court
of Common Pleas of Philadelphia County. Due to the importance
of this nomination and because of the seriousness of the
allegations raised with respect to Judge Massiah-Jackson's
record, I have delayed taking a public position until I had
the opportunity to review all available data. This review has
also included discussions with members of my staff and other
prosecutors who have personally appeared before Judge
Massiah-Jackson. To a person, these prosecutors have
expressed concern about the Judge's demeanor, her temperament
and the manner in which she disposes of cases. I have also
reviewed sentencing statistics and discussed Judge
[[Page S634]]
Massiah-Jackson's sentencing practices with these
prosecutors. This review and these discussions have revealed
a record of leniency in sentencing criminal defendants, a
bias against police and prosecutors and an insensitivity to
the plight of victims.
The major criticisms about Judge Massiah-Jackson come from
the period of time she was assigned to the Court's Criminal
Division. In recent years, she has been assigned to the Civil
Division. U.S. District Court judges have a civil and
criminal court caseload. The Office of Attorney General and I
represent the Commonwealth in the U.S. District Court in
civil and criminal cases.
As Attorney General, I supervise a large office which
includes 180 lawyers and 266 criminal agents. My prosecutors
and agents are often cross-designated in federal court and
also work jointly with police officers, agents and
prosecutors from other federal, state and local agencies. My
Office's cases are sometimes prosecuted in federal court,
notably when they are developed in conjunction with a federal
task force. A federal judiciary that properly safeguards
individual rights and liberties while respecting the
dedication and commitment of the law enforcement community is
essential to our efforts on behalf of the people of the
Commonwealth.
Based on my review of Judge Massiah-Jackson's criminal
court record and the antipathy she has displayed toward
police, prosecutors and victims, I must respectfully ask you
to oppose her nomination when it is voted on by the United
States Senate and to ask your colleagues to do likewise.
My hope would be that the President will quickly nominate
someone who will bring the needed diversity to the United
States District Court for the Eastern District of
Pennsylvania, but a person with a record that shows a more
balanced perspective than this nominee.
Thank you for your consideration of my position.
Very truly yours,
D. Michael Fisher,
Attorney General.
____
Fraternal Order of Police,
National Legislative Program,
Washington, DC, 27 January 1998.
Hon. Arlen Specter,
U.S. Senate, Washington, DC.
Dear Senator Specter: I am writing on behalf of the more
than 270,000 members of the Fraternal Order of Police to urge
that you withdraw your support for the nomination of Judge
Frederica Massiah-Jackson to the Federal judiciary.
Senator Specter, Judge Massiah-Jackson has no business
sitting on any bench, let alone a Federal bench. Frankly, I
have difficulty reconciling why you would offer her
nomination any of your support. She routinely demonstrates
that she lacks any sense of judicial propriety and
temperament. Her manners and language in the court room are
ugly. Her record of sympathy and leniency toward criminals,
even violent criminals, is extreme. Most objectionably, Judge
Massiah-Jackson consistently parades her anti-police bias by
using her power and authority as a judge to belittle, harass,
and threaten the law enforcement officers who appear in her
court. Her contempt for prosecutors appearing before her is
so rancorous, that a broad grassroots effort has been led by
members of her own political party to oppose her elevation to
the Federal judiciary.
In 1994, a man appeared before Judge Massiah-Jackson
charged with numerous offenses. He had struck a pedestrian
with his car, left her lying in the gutter, and then pummeled
into unconsciousness a relative of the victim who attempted
to prevent his fleeing the scene. She described the behavior
of this man, who had a prior record of 19 arrests and eight
convictions, as ``Not really criminal. He had merely been
involved in a car accident.'' The man was sentenced to two
years probation.
To add insult to injury, a few years earlier this same man,
who then was out on bail for another offense, appeared before
Judge Massiah-Jackson. His counsel asserted that a particular
police officer was harassing him with ``unnecessary'' traffic
stops. Despite the lack on any evidence, Judge Massiah-
Jackson offered to have the court file a complaint against
the officer on the defendant's behalf! She concluded, without
any discernable reason other than her contempt for law
enforcement officers, that this officer was masterminding a
plot to threaten and harass the man and his family! Senator
Specter, she threatened in open court to appear as a fact
witness against this officer in the event the defendant, his
family, or friends came to any harm. What kind of a judge is
this?
On one occasion, Senator, Judge Massiah-Jackson acquitted a
criminal of drug possession by simply refusing to believe the
testimony of undercover narcotics investigators. After
dismissing the charges, she urged spectators in her court to
``take a good look at the undercover officers and watch
yourselves.'' I cannot adequately express my outrage, sir.
She deliberately jeopardized the lives of these officers. Is
this the type of judge we want sitting on the Federal bench?
This is surely the most offensive and egregious example of
her conduct, but hardly an uncommon one for Judge Massiah-
Jackson, who has made a career of dismissing out of hand
testimony by police officers, treating them as second-class
citizens barely worthy of even her contempt. Frankly, I am
amazed she has served on any bench at all.
I urge you to ensure that all judicial nominees are
properly screened, so that the likes of Judge Massiah-Jackson
do not find their way to the Senate floor again. And I
strongly urge you to withdraw your support of her nomination
and cast your vote against her confirmation on 28 January. To
confirm Judge Massiah-Jackson would be an affront to every
law enforcement officer and prosecutor in the nation, all of
whom have the herculean task of fighting crime. We shouldn't
have to have the judges and the criminals against us.
Sincerely,
Gilbert G. Gallegos,
National President.
____
Fraternal Order of Police,
Philadelphia Lodge No. 5,
Philadelphia, PA, January 13, 1998.
Hon. Richard (Rick) Santorum,
U.S. Senator, Philadelphia, PA.
Dear Senator Santorum: The Fraternal Order of Police, in an
effort to protect and properly serve its members, has a keen
interest in all Jurists whose appointment could affect the
safety and welfare of its Police.
To this end, the Fraternal Order of Police is opposed to
the nomination of Judge Frederica Massiah Jackson to the
United States District Court for the Eastern District of
Pennsylvania.
The reasons for this determination by the F.O.P. is that
Judge Jackson has an established record of being extremely
lenient on 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.
The Police have a hard enough time dealing with the felons
on the street. They don't need to be worrying about the
people in positions of authority placing them in more danger.
Yet, that is exactly what Judge Jackson did to several
Narcotic Officers in open Court.
It is an insult to the entire Judicial System and the
community it services when a Jurist of this caliber would
even be considered for an appointment to a position that
could negatively affect public safety.
Must one be reminded that--Crime is out of control.
Innocent people are being attacked and slaughtered on our
streets. Drugs are in every neighborhood. Our citizens are
fleeing the City in great numbers. Our residents are living
in fear everyday. Our City is in decay.
We must stop the violence; we must stop the insanity!
The appointment of Judge Massiah Jackson to the U.S. Court
would be directly counter-productive to this effort. We need
a Federal Judge who has proven to be tough on crime. One who
is a highly regarded professional in the field of law. We
must have a Judge who can help bring new hope to those in
despair.
In closing, Philadelphia has many Judges who can fill the
requirements needed for this position. Unfortunately, Judge
Massiah Jackson is not one of them.
Respectfully submitted,
Richard B. Costello,
President.
Michael G. Lutz,
Past President.
____
District Attorney's Office,
Philadelphia, PA, January 8, 1998.
Hon. Arlen Specter,
U.S. Senate,
Washington, DC.
Dear Senator Specter: On December 9, 1997, you phoned my
office seeking my position on the nomination of Judge
Frederica Massiah-Jackson as a Judge for the United States
District Court for the Eastern District of Pennsylvania. When
we spoke, I told you that, in my thirty years of public
service, including almost sixteen years as a Judge and over
six years as Philadelphia's District Attorney, never before
had my United States Senator solicited my position on any of
the many prior Federal District or Circuit Court nominees who
had sought confirmation. I further related that it had been
my general policy to refrain from speaking out on Federal
judicial nominations.
Immediately after our brief phone conversation, you wrote
and faxed me a letter seeking my written concurrence in a
quoted paragraph regarding my general policy. I have
deliberately deferred responding because, instead of offering
a perfunctory response, I thought it prudent, under the
present circumstances, to re-evaluate my general policy, to
see if there were compelling reasons to deviate from it. I
have concluded that this nomination presents such reasons.
Between the time of our conversation and today, I have
carefully reviewed sentencing statistics, verdicts, courtroom
testimony, newspaper and other print media reports, together
with a number of other pieces of anecdotal evidence,
including office memoranda. After having done so, I have
concluded that I must stand opposed to this nomination.
This decision is a difficult one because I campaigned with
and served on the bench at the same time as Judge Massiah-
Jackson. I firmly believe in the rule of law and the
independence of the judiciary, and I would never oppose a
nomination merely because of a personal disagreement with
some decisions or remarks that a judge might make in the heat
of courtroom arguments.
My position on this nomination goes well beyond mere
differences of opinion, or judicial philosophy. Instead, this
nominee's
[[Page S635]]
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.
This nominee's judicial service is replete with instances
of demonstrated leniency towards criminals, an adversarial
attitude towards police, and disrespect and a hostile
attitude towards prosecutors unmatched by any other present
or former jurist with whom I am familiar.
I must, however, make this point perfectly clear: I believe
firmly that the next member of the Eastern District judiciary
should be an African-American woman. The under-representation
of minorities on our federal bench has been permitted to
exist for far too long. Fortunately, the Philadelphia area is
blessed with many eminently well-qualified African-American
women lawyers, in academia, public service, private practice,
and on the bench. Had any one of these been selected, she
would already be presiding on our Federal District Court
bench.
I trust that this letter satisfies your inquiry.
Sincerely,
Lynne Abraham,
District Attorney.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Ms. Collins). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DOMENICI. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DOMENICI. Parliamentary inquiry. Is there time set aside for
morning business now?
The PRESIDING OFFICER. There is not. However, the Senator may, by
unanimous consent, request permission to proceed.
Mr. DOMENICI. Madam President, I ask unanimous consent for 15 minutes
to speak as in morning business.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
____________________