[Congressional Record Volume 144, Number 28 (Monday, March 16, 1998)]
[Senate]
[Pages S1984-S1986]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    WITHDRAWAL OF THE NOMINATION OF JUDGE FREDERICA MASSIAH-JACKSON

  Mr. LEAHY. Mr. President, the President has withdrawn the nomination 
of Frederica Massiah-Jackson to be a United States District Judge for 
the Eastern District of Pennsylvania. Judge Massiah-Jackson continues 
as a respected Judge on the Philadelphia Court of Common Pleas and has 
reiterated her commitment to public service to the city and citizens of 
Philadelphia.

[[Page S1985]]

  This nomination is a casualty of the confirmation process. As she 
described it: ``After being found qualified to serve by the Specter-
Santorum Judicial Selection Commission, the Department of Justice, the 
FBI, the American Bar Association and the Senate Judiciary Committee,'' 
she was subjected to ``an unrelenting campaign of vilification and 
distortion as [she] waited for a vote on [her] nomination by the full 
Senate.'' She recognized that in the ``politicized environment'' in 
which this matter is being played out, she would have little 
opportunity to set the record straight once again. She has already 
devoted the better part of the last several days to that task, but the 
terrain keeps being shifted under her feet.
  Last week the Judiciary Committee held a hearing, ostensibly to allow 
Judge Massiah-Jackson an opportunity to respond to charges leveled 
against her record as a Philadelphia Court of Common Pleas Judge. The 
hearing made a record that cleared up the most troubling allegation 
that had been made against her since her nomination was reported by the 
Judiciary Committee last November. No one who is familiar with the 
facts can continue to accuse her of having unmasked undercover 
narcotics officers sitting in her courtroom. That simply did not 
happen.
  Unfortunately, the hearing veered off into characterizations about 
other cases than those the nominee had been notified raised concerns 
and there was no opportunity for her to prepare to respond to questions 
about those cases at the hearing. Late Friday evening Judge Massiah-
Jackson sent a written response to the Committee on those additional 
matters. In fairness, I encourage anyone concerned about the Richard 
Johnson, Spagna, Kennedy, Nelson, Williams, Thomas, Walker, Parks, 
Hill, Kevin Johnson, Hairston, Evans and Gregory Johnson cases to 
consider her response and review the trial records before accepting 
second-hand characterizations by her critics.
  Over the last several weeks a caricature of this nominee has emerged 
here in Washington rather than a true portrait of the woman who was 
elected to the bench in 1983 and retained by Philadelphia voters in 
1993. No one should forget that the matters about which opponents are 
now complaining all took place before that 1993 retention election. 
Judge Massiah-Jackson's handling of important and complex civil matters 
over the last several years has been commended by the bar and not been 
criticized. The criminal cases from her earliest days on the court were 
concluded before the 1993 retention election and were not a source of 
controversy or criticism then.
  Having been condemned by some on the Senate floor in early February, 
Judge Massiah-Jackson returned to appear before the Judiciary Committee 
last week to correct the record. I said at the outset of that hearing 
that it would be hard for anyone to counteract in a few minutes the 
weeks in which opponents engaged in a whispering campaign and then in a 
blitzkrieg public relations effort to kill her nomination without 
affording her a fair opportunity to be heard. Unfortunately, the 
tactics continued as she was surprised with questions about cases that 
had not been previously been raised.
  I have searched my memory for any precedent for the way in which this 
nomination was attacked, but can think of none. It has too great an 
``Alice in Wonderland'' quality to it. Senators were all too eager to 
accept any and every accusation without exploring its basis, allowing 
the nominee a fair opportunity to respond or reviewing the factual 
record. Like the King in Wonderland, on February 10 and 11, Senators 
had to be restrained from moving to a vote on the basis of accusations. 
The nominee was allowed a hearing on March 11 to respond, only to be 
met with new allegations.
  The Senate was intent on voting down her nomination again last week 
without allowing an opportunity for the nominee to respond to the new 
allegations. I could almost hear the Queen of Hearts objecting that 
there need be no deliberation, just ``Sentence first--verdict 
afterwards.'' I can understand why Judge Massiah-Jackson chose to 
forestall the ``stuff and nonsense" that had come to characterize 
Senate treatment of her nomination. I regret the ordeal that she and 
her family were made to endure.
  I have noted before the respect I have for our colleague from 
Philadelphia and for his experience and judgment both as a prosecutor 
and as a Senator. Senator Specter has been a steadfast supporter of 
Judge Massiah-Jackson. He has done the work to evaluate the criticism 
of her record. He has looked at the trial records and the Philadelphia 
Bar Association report and compared the criticism to the facts. He 
knows the circumstances in Philadelphia that form the backdrop for the 
criticism of this nominee's record from local prosecutors and police. 
My own review of the cases leads me to the same conclusions that he has 
drawn: Prosecutors were disappointed in a number of her rulings but she 
had a basis in the record for the great majority of her orders. She has 
admitted to mistakes and been reversed on occasion, but that handful of 
errors should not have disqualified her from this appointment.
  This nominee has broad ranging support from both Democrats and 
Republicans in Philadelphia, a number of prosecutors and former 
prosecutors, distinguished representatives of the bar, and numerous 
State and local judges. Mayor Rendell, himself the District Attorney in 
Philadelphia for many years, is one of her strongest supporters. The 
Philadelphia Bar's review of the initial accusations about her record 
found many errors in the report of the district attorneys and concluded 
that her nomination continued to merit support.
  The Philadelphia Bar Association's report challenges many of the 
inferences and conclusions draw by the earlier submission of local 
prosecutors provided by the Pennsylvania District Attorneys 
Association. Ironically, using the methodology of the Pennsylvania 
District Attorney's Association indicates that Judge Massiah-Jackson 
had a substantially higher conviction rate--a 25 percent higher 
conviction rate-- than the overall conviction rate for the Philadelphia 
Court of Common Pleas. The Philadelphia Bar also reports that Judge 
Massiah-Jackson actually imposed sentences above the Pennsylvania 
sentencing guidelines more frequently than other Philadelphia judges. 
Indeed, for the more serious offenses--including robbery, aggravated 
assault, rape, and drug felony offenses--by her last year hearing 
criminal cases she was five times more likely than other Philadelphia 
judges to impose tougher sentences than the guidelines required.
  For purposes of the record, let me briefly comment on the allegation 
that Judge Massiah-Jackson purportedly unmasked undercover narcotics 
officers in her courtroom. The story related to the Senate on February 
10 was that Judge Massiah-Jackson ``had ordered undercover policemen to 
stand up and be recognized in court so that any drug dealers that were 
there would recognize them if they saw them on the streets.'' On 
February 11 this alleged incident was recounted to the Senate as 
follows: ``In open court she told these arresting officers, who were 
working undercover, to turn around and told the drug dealers and other 
spectators to `take a good look at the undercover officers and watch 
yourselves.''' She has been condemned for ``making undercover agents 
reveal who they are to the drug-running community.''
  These are serious but unfounded charges and an example of the 
misinformation that has plagued this nomination. Judge Massiah-Jackson 
has consistently denied that she would ever have done anything to put 
police officers in danger and that she would not have publicly 
identified undercover officers who were concealing their identities.
  The Committee obtained brief written statements from the two 
Philadelphia police officers about which the allegations were made. It 
struck me that both officers' written statements noted that on the day 
of the alleged incident school children were brought to the courtroom 
to observe cases. One of the officer's written statements noted that 
during a break between cases the Judge addressed the children and that 
the alleged incident took place ``after a short speech to the 
children.'' The officer wrote: ``I understand what she may have been 
trying to achieve with the kids.''
  I can imagine the Judge making a crime prevention or crime deterrence

[[Page S1986]]

statement to a group of school children. It is possible that she told 
the school children not to commit crime, not to do drugs and not to be 
involved with drugs and that if they did they would likely be caught, 
tried and sent to jail. To drive home the deterrence point that they 
should not think that they can get away with anything, I can imagine 
the Judge directing the children's attention toward the officers 
dressed in their street clothes to make the point that officers do not 
always wear their uniforms and badges and that they could be anyone. 
One of the officers had already testified and identified himself as a 
police officer in open court. He was called ``Officer'' by the 
prosecutor. The transcript of that case indicates that the other 
officer was there and had been named in the course of the proceedings. 
The Commonwealth rested its case without formally calling the second 
officer to the stand.
  I also note that neither of the officers' written statements indicate 
that the Judge said anything disparaging. Nowhere is there any basis 
for the contention that she ``ordered undercover police officers to 
stand up and be recognized in court'' or ``make undercover officers 
reveal who they are to the drug-running community.'' Neither of the 
officer's statements indicate that she referred to the men as 
``undercover narcotics officers'' or ``undercover officers.'' Those 
characterizations only surface later in assertions by a prosecutor who 
was seeking to have the Judge recuse herself the next year in a 
different case and in that prosecutor's later comments to a 
Philadelphia Daily News staff writer.
  The officers' written statements indicate that they have little more 
in the way of specific personal recollection of these matters than 
Judge Massiah-Jackson does. The written statements conflict with each 
other and with the subsequent newspaper account. Many of the specifics 
about the proceedings are simply incorrect.
  It seems to this Senator that some have been intent to make this 
alleged incident into something it was not. To the extent Judge 
Massiah-Jackson made any reference to the presence of officers dressed 
in street clothes in the courtroom, it appears to me that it was after 
the officers had identified themselves to those present as officers. 
They do not appear to have been acting as undercover officers in the 
courtroom and were not unmasked. From the testimony offered in the case 
they both had been in contact with both defendants. To the extent the 
Judge made any comments, they were most likely directed at a group of 
school children visiting the courtroom and were made in the course of a 
speech urging those children to stay away from crime and drugs.
  The Judge has long been involved with young people, often spent time 
as a classroom speaker, visited a number of Philadelphia's public and 
parochial schools and invited classes to visit her courtroom. Indeed, 
she visited an impressive array of schools to make presentations every 
year since joining the bench.
  I trust that we will hear no more about the allegation that she 
unmasked undercover officers in her courtroom. I regret that the 
reputation of this Judge has been clouded. I hope that those who want 
to know the truth will consult the record made in connection with the 
March 11 Judiciary Committee hearing and the court records in the cases 
at issue.
  In her letter to the President, Judge Massiah-Jackson noted that 
``our system of justice and the independence of this third branch of 
our government may be the most precious treasure bequeathed to us by 
the Founding Fathers.'' I hope that in the future the Senate will show 
more respect for the independence of the judiciary and a more balanced 
approach in our review of judicial nominations.

                          ____________________