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“WITHDRAWAL OF THE NOMINATION OF JUDGE FREDERICA MASSIAH-JACKSON” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S1984-S1986 on March 16, 1998.
The publication is reproduced in full below:
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 President, the President has withdrawn the nomination of Frederica Massiah-Jackson to be a United States District Judge for the Eastern District of Pennsylvania.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.
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 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.
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