[Congressional Record Volume 144, Number 28 (Monday, March 16, 1998)]
[Senate]
[Pages S1980-S1983]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             NOMINATION OF JUDGE FREDERICA MASSIAH-JACKSON

  Mr. SPECTER. Madam President, I have sought recognition to comment on 
the nomination of Judge Frederica Massiah-Jackson for the U.S. District 
Court for the Eastern District of Pennsylvania, and that nomination 
having been withdrawn this afternoon at the request of Judge Massiah-
Jackson. I appreciate and understand the reasons leading to her 
withdrawal.
  I commend Judge Massiah-Jackson for her tenacity and courage and for 
completing the record on all the new questions which were unexpectedly 
raised at last week's hearing, on Wednesday, March 11. At the outset, I 
want to thank our distinguished majority leader, Senator Lott, for his 
courtesies on this matter and to thank my distinguished colleague, 
Senator Santorum, for his strenuous efforts in seeking the second 
hearing for Judge Massiah-Jackson in an effort to try to do the fair 
thing with Judge Massiah-Jackson.
  I think it is important to future nominations to face up to exactly 
what happened in this matter to prevent a recurrence and to improve the 
system for the future. In my judgment, Judge Massiah-Jackson was 
unfairly treated by her opponents, and in my judgment, Judge Massiah-
Jackson was unfairly treated by the Senate Judiciary Committee.
  I believe it is important to find out about nominees who are 
submitted for the Federal bench because that is a very, very important 
appointment having lifetime tenure. I believe the law is the highest 
calling and that the courts have been established to adjudicate 
disputes between the government and the government's citizens and 
between people and among parties. I have spent my entire adult life as 
a lawyer, and I consider it a high calling. There are many of those 
attributes which are important in the course of working as a U.S. 
Senator, especially on the Judiciary Committee.
  In my judgment, Judge Massiah-Jackson's opponents dealt with her 
unfairly at the outset by seeking to kill her nomination anonymously. 
If anyone had anything to say about Judge Massiah-Jackson, I believe 
they should have come forward and should have come forward at an early 
date. She was nominated for the judgeship on July 31, but it was not 
until almost 6 months later that her opponents came forward, after 
there had been two hearings and after the Senate Judiciary Committee 
had approved her nomination by a vote of 12-6.
  When those anonymous complaints were filed--which led some people to 
say that she was soft on crime, and I thought without any basis to do 
so from those anonymous complaints--Senator Santorum and Senator Biden 
and I held an unusual field hearing in Philadelphia on October 3, and 
we invited people to come forward. We specifically invited some who 
later turned out to be among her most vocal critics. But no one came 
forward at that time. Instead, we had a group of judges who had served 
with her--I believe five in number--who said she was well within the 
mainstream. We had representatives of the distinguished mayor of 
Philadelphia, Edward Rendell, himself a former district attorney. Mayor 
Rendell said publicly and expressed to me privately, ``Stick with the 
public record; Judge Massiah-Jackson was an excellent nominee for the 
district court.'' Mayor Rendell said she had been appealed very little 
with respect to sentencing, that she had a very, very good record. 
While Mayor Rendell could not be present at the October 3

[[Page S1981]]

hearing, his representative was, as were others.
  Then the Judiciary Committee held a hearing in late October, and in 
early November voted Judge Massiah-Jackson out by a vote of 12-6. It 
was not until later--I believe in early January--that opponents began 
to surface. Some of those opponents had previously said directly to 
Judge Massiah-Jackson that her nomination was applauded, that the 
celebration on swearing-in was an event to be looked forward to. When 
these opponents came forward, Senator Santorum and I said that we ought 
to have a full inquiry into what the objections were. Toward that end, 
on January 23, we met with district attorneys in my office in 
Philadelphia and heard complaints of a very generalized nature; very 
few cases were mentioned, with the district attorneys saying that they 
would file their objections within a week so that we would know what 
was on the record and we could make a determination as to what to do, 
because a vote had been scheduled for Judge Massiah-Jackson for January 
28.
  The vote was put off to give the district attorneys an opportunity to 
present their objections. They filed them on February 2, which was a 
Monday, a little late, but OK. Then Judge Massiah-Jackson went to work 
to respond to quite a number of cases which the district attorneys had 
raised. It seemed to me that, notwithstanding the fact that the 
district attorneys were very late in presenting their objections, they 
ought to be heard, there ought not to be a time limit. If they had not 
come forward early, let them come forward later and let us find out 
what their objections were, let us give Judge Massiah-Jackson an 
opportunity to respond, and then let the Senate make a judgment.

  Then the hearing for Judge Massiah-Jackson was set for last 
Wednesday, March 11. By this time, the district attorneys had created a 
considerable crescendo of public opposition. They had done that on a 
selective citation of cases, illustrative of which was a case involving 
undercover officers who, Judge Massiah-Jackson's critics said, had been 
exposed in open court. But when that matter was pursued, it was 
determined that those officers had testified in open court and their 
identities had been disclosed. So there was hardly anything to be 
disclosed since it had already occurred in open court.
  Another case which was widely publicized was a case where Judge 
Massiah-Jackson had deferred the imposition of sentence on a case 
involving a defendant motorist who had struck a pedestrian. When those 
facts were looked into in some detail, it was determined that the 
victim had asked for the postponement in order that the defendant could 
make restitution, that, in fact, the defendant had made restitution. 
That case was appealed to the Pennsylvania higher courts as to the 
adequacy of Judge Massiah-Jackson's opinions, and the appellate court 
said Judge Massiah-Jackson had acted properly.
  In the totality of cases, Judge Massiah-Jackson handled some 4,000 
cases between 1984 when she was appointed to the bench and 1991 when 
she stopped sitting on criminal cases. There were only four appeals 
taken from her sentences. In one of those appeals she was reversed 
because she had given too long a sentence. The guidelines had been 
exceeded, so said the appellate court. She was too tough. She imposed 
too long a sentence. In the other three cases, she was reversed twice 
and upheld once. But three appeals by the Commonwealth involving many, 
many sentences coming out of some 4,000 cases which had been heard--not 
all resulted in sentences because some were acquittals--is not too bad 
a record, to say it very, very plainly.
  When the district attorneys had submitted, I believe it was 39 cases 
on February 2, not 50 which they said they would submit, in an analysis 
of the representations by the district attorneys to what the 
transcripts showed, there was a wide variance. The district attorneys 
had taken the facts as they represented them in the light according to 
the Commonwealth's witnesses but did not take into account witnesses 
for the defense or the issues of credibility or the other matters in 
which a judge might make a different finding. In the hearing on March 
11, I put a number of those matters into the Record.
  The hearing of March 11 was really a very extraordinary one, in my 
opinion. By the time these selective cases had been disseminated to law 
enforcement agencies, quite understandably, quite a number of law 
enforcement agencies came forward to object to Judge Massiah-Jackson. 
That is not surprising because they did not know the entire record.
  It ought to be pointed out that this confirmation process for Judge 
Massiah-Jackson has come on the heels of a very unusual case captioned 
Commonwealth v. Lambert, a murder case out of Lancaster County, PA, 
where a judge on the U.S. District Court for the Eastern District of 
Pennsylvania--the same court to which Judge Massiah-Jackson had been 
nominated--where a Federal district court judge in Philadelphia had 
found constitutional error, which is not surprising, but it was 
surprising that the judge had ordered that there be no retrial in that 
case involving a conviction for murder. That was an extraordinary 
ruling, and in my legal research, unprecedented. I joined with 
Congressman Pitts and others in introducing legislation to clarify that 
jurisdiction of a district court judge. The finding of constitutional 
error is well within the purview of the court, the suppression of that 
evidence is well within the purview of the court, but it is not within 
the purview of the court to say that the case could not be retried. 
That is a matter for the State court in Lancaster County and for the 
Lancaster County district attorney. The district attorneys who had 
opposed Judge Massiah-Jackson were very explicit in saying that they 
were not going to see another judge sent to the district court like the 
one who had ravaged, they said practically ruined, the district 
attorney of Lancaster County.

  So against that recent backdrop, it was not surprising that when law 
enforcement agencies saw a limited part of the record without knowing 
all of the facts, that they would be opposed to Judge Massiah-Jackson.
  It is not irrelevant to point out that I was district attorney in 
Philadelphia for 8 years, from 1966 to 1974, and before that an 
assistant district attorney for 4 years and, obviously, have had 
considerable experience in the criminal courts of Philadelphia. The 
decisions which Judge Massiah-Jackson made were well within the keeping 
of the Philadelphia criminal courts. I take second place to no one in 
battling with the judges on the issues of sentencing. When I was 
district attorney of Philadelphia, I made it a practice to petition for 
reconsideration of a sentence when I thought the sentence was 
inadequate. I went right before the court, and on one occasion was so 
tenacious that I was held in contempt of court when I protested a 
lenient sentence imposed on someone convicted of selling drugs, 6 
ounces of pure, uncut heroin. I was so insistent on battling the judges 
on the issue of sentencing that procedure was taken away from the 
district attorneys by a superior court opinion, saying it was double 
jeopardy and the courts of Pennsylvania had noted my opposition to 
sentencing. So that was gone.
  I also took a common law appeal to try to appeal sentences when I was 
district attorney from 1966 to 1974. The D.A. did not have a right of 
appeal, and I drafted legislation to give the district attorney the 
right of appeal, and ultimately that statute came into existence. But 
when I was district attorney, I found three very egregious cases and 
decided to take an appeal to the Pennsylvania Supreme Court to argue a 
common law right of appeal.
  One of the cases, as I recollect, was a motorist who had been 
convicted of drunken driving and was driving on a revoked license and 
killed two people and had gotten probation. I thought that was 
horrendous and thought there ought to be a right of appeal. Another 
case involved, as I recollect it, the deputy commissioner of licensing 
inspections, convicted of 40 counts of corrupt practices, and got 
probation. Another case which I considered an outlandish sentence and 
thought there ought to be a right of the district attorney to appeal 
involved a defendant named Arnold Marks. I have referred to the 6 
ounces of pure, uncut heroin worth $280,000, as I recollect it, and 
6\1/2\ months in jail. The Supreme Court of Pennsylvania disagreed with 
me, fairly unceremoniously, and said I did not have a right of appeal 
and dismissed

[[Page S1982]]

my effort. As I say, the district attorney's right to file an appeal 
was later upheld by statute, so if anybody today disagrees with the 
judge's sentence or anybody disagreed with Judge Massiah-Jackson's 
sentences, they could take it to appeal. As I say, it only happened 
three times by the district attorney's office in the handling of some 
4,000 cases. There were occasions when I challenged the judges on the 
findings of the fact. In those days the Commonwealth district attorney 
had a right to demand a jury trial. We did not have a right of appeal, 
but we did have a right to demand a jury trial as party to the 
proceedings. And it was with some frequency that I exercised that right 
to demand a jury trial--so often that the supreme court changed the 
rule, and said the district attorney no longer had the right to demand 
a jury trial.

  So I take second place to no one, Madam President, in terms of 
battling on findings of fact in criminal cases and battling on the 
issue of sentencing. And I take second place to no one since coming to 
the Senate, having been elected in 1980, and having authored the armed 
career criminal bill. This is a very strong statute dealing with 15-
years-to-life sentences for career criminals who have three major 
convictions--not larceny of cookies, I might add, but robbery or 
burglary or sale of major drugs, and later found in possession of a 
firearm--to get a life sentence; 15 years to life--15 years is the 
equivalent of a life sentence in the Federal prisons.
  There is legislation which I worked on for the better part of a 
decade, which abbreviates the amount of time there can be on appeal in 
the Federal courts from a State conviction with the death penalty from 
about 15 years, which the cases have taken 2 1/2 years; I have also 
been in the lead on getting adequate funding for the Federal Bureau of 
Investigation for a variety of State action and as well as for Bureau 
of Alcohol, Tobacco, and Firearms.
  The March 11 hearing, Madam President, I thought was atrocious, to 
use a fairly mild word, because Judge Massiah-Jackson was confronted on 
that morning at 9:30, when the hearing started, with new batches of 
cases which the district attorneys had submitted by letter dated March 
6, which was the Friday before. However, my staff did not get these 
until 10:40 p.m. on March 10, long after I had retired. I saw these 
cases at 9 o'clock when I came to my office. I did not have any time to 
review them, and Judge Massiah-Jackson did not see them at all.
  Now, the most fundamental aspect of due process is notice and an 
opportunity to be heard and then a hearing. But the quintessential 
point about due process is notice. How can Judge Massiah-Jackson be 
called upon to respond to cases which she has not seen for a decade, or 
for 15 years? One of the cases involved a 1994 trial. Other cases 
involved 1988 and 1989 trials. It was said--and I think appropriately--
that for Judge Massiah-Jackson to salvage her nomination last Wednesday 
she would have to hit a home run and the bases would have to be loaded. 
She was facing a very steep, uphill climb. But the reality was that she 
had no chance to do that because she was confronted with cases which 
were a decade old, or more. And when she said, ``I do not recall,'' it 
was taken that she should have recalled.
  It may not be a matter that is realized by Senators who are used to 
attending hearings, but when a witness appears before a hearing in the 
U.S. Senate, there is a certain amount of trepidation, especially when 
a judicial nominee appears in a Judiciary Committee hearing. There is a 
substantial amount of trepidation because that person's appointment to 
the Federal bench is on the line.
  I have seen many highly experienced trial lawyers with 30 years of 
practice at the bar, nominees who come from Pennsylvania whom I know 
very well, of great stature, of great aplomb, of great presence, come 
before the Judiciary Committee frightened like children in school, 
apprehensive, very, very nervous as to what is happening. And that is 
when they appeared before just a single Senator who is presiding at the 
hearing, or perhaps someone chairing the hearing and a ranking member 
from the minority party. Judge Massiah-Jackson walked into the hearing 
last Wednesday. The panel was loaded with people who were opposed to 
her, people who were asking her about cases which she had not had any 
notice of for a decade or for 15 years.
  Then, in an even more astonishing development, some of the Senators 
had transcripts which had been provided, according to the fax notes--
you could see it on the transcripts--the night before at 5 o'clock in 
the evening. One transcript bore the note of ``Philadelphia District 
Attorney's Office,'' and another transcript bore the note 
``Philadelphia DA's Law Division.'' So they had at least two fax 
machines, and both were busy turning out these faxes going to selected 
members of the Judiciary Committee--not to Arlen Specter, not to the 
chairman of the Judiciary Committee, but going to certain members, and 
not to Judge Massiah-Jackson, who was then asked questions about them.
  It was true that the Senator said, ``Well, now, you may not recollect 
this, and I know you have not seen these cases''--which were submitted 
with transmittal letters, as I said, on March 6, and as I previously 
said, which I had not seen until the morning of March 11 and Judge 
Massiah-Jackson had not seen at all --``but let's see if you could 
respond to the questions.'' Well, when she says she doesn't remember, 
it doesn't look too good for her. When she is confronted with 
transcripts where the Senator's then say, ``Well, maybe this will 
refresh your recollection,'' and the transcript is read to her, and she 
does not remember, she doesn't look too good.
  So when she walked out of the hearing and the comments were she 
didn't do very well, she didn't remember the cases--how could she 
remember the cases? How could she do very well? What the district 
attorneys had done was water torture--drip, drip, drip, drip, drip. It 
started early on when the materials came in anonymously, drip, drip, 
drip, leading one member of the Judiciary Committee to say, without any 
foundation, ``Looks like she is soft on crime''--drip, drip, drip. Then 
a hearing with Senator Santorum, Senator Biden, and myself in 
Philadelphia--nobody comes forward. Nobody has the courage to step 
forward and say, ``I am opposed to this nominee,'' as she had every 
right to expect, put her on fair notice, and give the Judiciary 
Committee a chance to evaluate their testimony. Then more anonymous 
materials--drip, drip, drip. In late October the Judiciary Committee 
has its hearings; and then drip, drip, drip. And it is true, they 
alerted some Members, who by last-minute holds deprived the Senate of 
having a vote at a time when the Senators were absent. Last week the 
majority leader did not schedule any votes, but materials came in in 
this matter.
  There is an inevitable chilling effect, Madam President, on what has 
happened, and its repercussions go far beyond Judge Massiah-Jackson.
  I said at the hearings that I thought it very unfortunate that Judge 
Massiah-Jackson should be called upon to answer questions put to her by 
district attorneys because there are so many State court judges in 
America who would like to be Federal court judges. I hardly know of any 
in Pennsylvania who do not want to be Federal court judges. The 
distinguished Presiding Officer came to see me last week with a member 
of the Supreme Court of Maine who wanted to be a judge on the First 
Circuit. That is the aspiration of so many lawyers and so many judges. 
If trial judges know that when they displease the district attorney who 
is trying a case before them that their records are likely to be sent 
anonymously and surreptitiously to the Judiciary Committee, what kind 
of an effect does that have on the administration of justice? How does 
a State court judge feel about ruling against a district attorney, or 
an assistant district attorney, in the context where Judge Massiah-
Jackson was the victim of this water torture with people proceeding 
anonymously and then poisoning the waters in a way in which it was 
realistically impossible for her to answer?
  There was no way that Judge Massiah-Jackson could appear last 
Wednesday and talk about the cases which the district attorneys had 
submitted on February 2 when at every question she was confronted with 
cases, some 15 years old, where she had no notice. There is no way she 
could respond intelligently. And it was impossible for her to respond 
in a way which

[[Page S1983]]

could convince fairminded people as to what the facts were.

  I talked to Members of the Senate who saw only the headlines, who saw 
only the comments, who saw only two statements which she had made which 
she shouldn't have made. But if someone is to be disqualified for 
making two intemperate statements, I don't believe there would be 
anyone in the U.S. Senate--not just the 100 of us who are here now, but 
anybody. If somebody is disqualified for a job for two intemperate 
statements, nobody could hold a job anywhere.
  So when you take a look at this record in its totality, what I have 
sought to do from the outset is to see that Judge Massiah-Jackson 
receives a fair hearing. It has been said that she is my nominee, which 
is not true. She is obviously the President's nominee. But she is not 
somebody who came from the Republican ranks. There is an arrangement 
which Pennsylvania has with the White House, with the President, that 
we will have the opportunity to name one Federal district court judge 
in Pennsylvania--Senator Santorum, and I--for every three nominees 
submitted from the Democratic Party. Pennsylvania is the only State, 
except for New York, which has had this arrangement, going back to the 
days of Senator Javits in the late 1970s. I am not obligated to back 
anybody whom the White House puts up. In fact, one of the nominees from 
Pittsburgh was rejected and withdrew earlier.
  So when people say I have made a deal, it is not true. Judge Bruce 
Kauffman was sworn in on January 20. He was the nominee submitted by 
Senator Santorum and myself. I have not promoted the nomination of 
Judge Massiah-Jackson. I did not know her before she was nominated by 
the President to this position. But it seems to me, know her or not, 
she was entitled to fairness, and, if there were objections against 
her, I wanted to hear of them.
  I have not begun to detail, Madam President, the lengths to which I 
went to find out what those objections were. When I heard comments 
through the grapevine, I called, or had my staff call, everybody who 
had a comment to make. When people wouldn't come forward, we asked them 
for the facts, and we proceeded with the objection. I personally made 
telephone calls to people and returned telephone calls to people to 
find out exactly what they had in mind, because if she was 
disqualified, let the chips fall where they may.
  But the procedures which have occurred here and really culminated in 
the hearing on March 11, I think, represent an occurrence which is not 
the Judiciary Committee's finest hour. I believe that questions should 
not have been put to her. She should not have been called upon to 
answer questions on matters that she had not heard about until that 
morning, matters which are 10 or 15 years old.
  There is ample precedent in the committees to exclude inappropriate 
lines of questions. One which received a great deal of notoriety was 
the Supreme Court nomination hearing for Justice Clarence Thomas. When 
someone had asked Justice Thomas about his video selections, the 
chairman of the Judiciary Committee, a Democrat, overruled his 
colleagues on that side of the aisle and said those questions were out 
of line. They may have had some relevancy, some tenuous relevancy. I 
don't think so, but some might have argued some attenuated relevancy to 
the issue before the Judiciary Committee at that time.
  But certainly they were vastly prejudicial compared to any value 
which they may have had, and a courageous chairman of the Judiciary 
Committee excluded that line of questioning. At the hearing I did not 
mince any words, but the first time I had an opportunity to speak, I 
referred to these new cases which had just been dropped on me that 
morning, which Judge Massiah-Jackson had not seen, and made the point 
that they ought not to be the subject for questioning. And when others 
on the Judiciary Committee had those transcripts which bore the facts 
from the Philadelphia district attorney's office the night before, I 
strenuously questioned the propriety of that and interrupted the 
chairman to express my views in no uncertain terms.
  Madam President, this case will not go away so easily. I agree with 
those who have said in the Chamber today that there has to be an 
adequate venting process and we have to find out about judicial 
nominees. I believe that the people who had objections to Judge 
Massiah-Jackson should have come forward many, many months ago. They 
had an opportunity to do so. There were inquiries by the FBI; there 
were inquiries by the American Bar Association; there were inquiries by 
the commission which Senator Santorum and I have established. They had 
an opportunity to raise those objections at a very early stage. But I 
do not deny them an opportunity to present adverse matters, however 
late they may come in, because a Federal judgeship is so important. But 
I do not believe that a nominee ought to be asked those questions 
without any notice and without any opportunity to review those cases. 
As we speak, there are units within the judicial conference and units 
within the bar association that are taking a very close look at what 
happened to Judge Massiah-Jackson.
  In concluding, I compliment and congratulate Mark Aronchick and John 
Morris of the Philadelphia Bar Association for their pro bono work in 
analyzing the cases which were submitted by the district attorneys, the 
first batch submitted on February 2, and for their very strenuous 
efforts in an analysis to find out what the facts were. They supported 
Judge Massiah-Jackson because she had scored very well on the 
plebiscites where the members of the Philadelphia Bar Association had 
been questioned. I would also like to thank Charles Bowser, Esquire, 
who counseled Judge Massiah-Jackson.
  I do appreciate and understand the reasons leading to Judge Massiah-
Jackson's withdrawal. When she appeared in the hearings, she showed 
tenacity and courage, and she completed the record last week. But this 
is a time when the Senate Judiciary Committee has had better days, not 
a shining example for our Judiciary Committee, and the practices and 
procedures which were employed in this case need a thorough review so 
they will not be repeated.
  In the presence of no other Senator, I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. THURMOND. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from South Carolina is recognized.
  Mr. THURMOND. I thank the Chair.
  (The remarks of Mr. Thurmond pertaining to the introduction of S. 
1764 are located in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  Mr. THURMOND. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SANTORUM. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________