Arlen Specter

Mr. SPECTER

Mr. SPECTER. If the distinguished majority leader would yield to me, there have been discussions about a time. There are 4 hours. I was just discussing with our distinguished colleague from Missouri--I see he has left the floor so I will say nothing further. I hoped we might set that vote for 2:30, but I will let it ride.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that further proceedings under the quorum call be dispensed with.

Mr. SPECTER

Mr. SPECTER. Mr. President, let me congratulate the Senator from Alabama for his professional discussion of today, and I think that the Senator from Alabama has raised questions which require an answer. I think that we will give Judge Massiah-Jackson an opportunity to respond to the questions which the distinguished Senator from Alabama has raised.

Mr. SPECTER. Are you aware that the case you referred to involving the rape of a young man was sent back to another judge for trial and that defendant was acquitted?

Mr. SPECTER. Mr. President, I understand that the Senator from Alabama voted against Judge Massiah-Jackson at the committee level and had raised questions about Judge Massiah-Jackson so that he felt those questions were sufficient at that time for him to make his judgment. I respect his judgment. He has raised quite a number of additional questions today. And when he cites these cases about making a finding of a lesser included offense, he accurately states the law that those matters are not reviewable, that is the conclusion of the case. On a number of other matters which he has raised, those matters are reviewable; that where Judge Massiah-Jackson has made the decision to suppress evidence, that is a reviewable matter. So when she makes that judgment, her decision can be overturned. And where she made the judgment to order a nolle pros of a case, that was subject to review as well. When the Senator from Alabama was present at the hearing, we discussed a number of those cases. We have both been prosecutors. We know the evidentiary rules, and some matters may be reviewed. Judge Massiah-Jackson made quite a number of judgments which were subject to review, and on a good many of them she was upheld. When the Senator from Alabama raises questions about what the police community has stated, I understand that and respect that. We received one letter from the Grand Lodge of the Fraternal Order of Police citing a case where Judge Massiah-Jackson did some things that they write to disagree with. On that particular case, it went for appellate review, and the Appellate Court of Pennsylvania upheld Judge Massiah-Jackson. So the issue would be that these police officers and police officials will have an opportunity to testify about the specifics as to their judgment or whether their judgment might differ if they knew what had happened on appeal in the case. When the Senator from Alabama talks about ``why will the judge identify police officers in court,'' that is the case referred to by Senator Hatch earlier where those officers have already testified in court. In raising questions about why Judge Massiah-Jackson would take action in a variety of contexts, I think those are fair and appropriate questions. I think those questions are appropriate for Judge Massiah- Jackson to have an opportunity in which to respond. To the credit of the Senator from Alabama, when we had the hearing, he was there and he was asking those questions. I think it is not irrelevant to comment that there have been a number of convictions of police officers in the Federal court in Philadelphia recently for falsifying evidence in drug cases. Several hundred cases have been dismissed by the District Attorney of Philadelphia. The city of Philadelphia has paid out some $11 million in damages where you deal in a certain context and certain sections of a big city like Philadelphia. It may differ from some other communities. I came to Philadelphia from Russell, KS, and the differences were absolutely gigantic. When I was District Attorney in Philadelphia for 8 years after being assistant DA for some 4 years, I had many very strong disagreements with the judges. In one case, I was held in contempt of court in my battle on a sentence on a narcotics case, Commonwealth v. Arnold Marks. I still remember it. It only happened 28 years ago--4 ounces of pure, uncut heroin. And I thought the sentence was insufficient. I battled with the judge. The judges in Philadelphia when I became DA used to come to court late and leave early. I sent my detectives into court to write down the time they arrived and the time they left for lunch and the time they got back and the time they quit. Very frequently, court was supposed to run 10 to 12:30 and 2 to 4--4\1/2\ hours on the bench, not a straining schedule. But they had jobs to do in chambers. But the common practice was to arrive a few minutes before 11, work to about 12:10, come back at 2:50 and leave about 3:20. So I sent detectives in to court to write down the times. Soon thereafter, one of my detectives was held in contempt. I went down to the court. I said to the judge, ``You can't hold him in contempt. I did the order.'' I was the District Attorney. ``If you are going to hold anybody in contempt, you have to hold me in contempt. You can't hold me in contempt because anybody can come in open court and write down the times you come and go.'' Later, I got the Chief Justice of Pennsylvania to issue an order that judges had to sit from 9:30 to 5. We petitioned for reconsideration of sentences. This business about battling with the judge is something a District Attorney has to do. That is the appropriate role of a public prosecutor. When the District Attorneys have raised questions, I think that is within their rights. The police officers have raised questions. I think that is within their rights. But let's hear what Judge Massiah-Jackson has to say. The Senator from Alabama raised a number of questions. He can't understand why a judge would do that. And it is a little different milieu. Let us hear what she has to say. When we have all the facts, I consider myself, as I said earlier, a juror. I have taken an oath as a U.S. Senator and as a juror. I am prepared to hear both sides and to make a judgment. I think the hearings will be held in the light of day. There will be full disclosure. There is ample opportunity for public scrutiny, as there should be, and we will make the determination on the facts and on the merits as to whether this nominee should or should not be confirmed. I thank the Chair. I yield the floor. Mr. SANTORUM addressed the Chair.

Mr. SPECTER. I do.

Mr. SPECTER. Mr. President, when I make that comment about the Senator from Missouri saying that he knows the facts, knows the case, he raises four points, and one of them is the rape of this young man, a victim, but he doesn't know that the defendant was acquitted. That does have some bearing. If the scrutiny and the thoroughness of the Senator from Missouri on the balance of the record is as thorough as it was on this case, some may question the basis for his judgments, wanting to come to a vote without having heard the other side of the case. When the Senator from Missouri comments about endangering police officers, I wonder if the Senator from Missouri knows that those officers were identified because they testified in open court? And when the Senator from Missouri talks about attending the funerals of seven police officers, this Senator has attended the funerals of a lot more police officers than seven in 4 years as an Assistant District Attorney and 8 years as District Attorney of Philadelphia. It may be in that capacity that I have some greater knowledge of criminal procedure in that city and what goes on in the courtroom and what happens and whether somebody is entitled to make a reply. Not only attended the funerals of seven police officers, but prosecuted on many occasions their murderers. When the Senator from Missouri makes a comment about lower sentences, lesser included offenses, he may have a point on that, but that requires an analysis of what was in the case. I agree with the Senator from Missouri when he talks about the need for a quality evaluation of judges, and I do not believe that we ought to appoint judges for the Federal courts for lifetime appointments without very thorough scrutiny, but I do not think that it advances the cause to vilify or joke about the American Bar Association and the ``Good Housekeeping Seal of Approval.'' The Philadelphia Bar Association is making an analysis and stands behind Judge Massiah- Jackson as her advocate. When the Senator from Missouri says that Arlen Specter is the sponsoring Senator, again, he doesn't know what he is talking about. This is a nominee by the President. This is a nominee by the President, and I have said that Judge Massiah-Jackson is entitled to a fair hearing and to have her side of the matter presented. That is, as a member of the Judiciary Committee, as a United States Senator and as a juror, who has to make a decision. I am well aware of my oath of office. And I am well aware of my responsibilities to make an impartial judgment in this case. I said to the district attorneys who came to my office on January 23--and I repeated it earlier today--that I was interested in hearing what they had to say, but I will not make a judgment until I hear the reply of Judge Massiah-Jackson as a matter of basic fundamental fairness. I yield the floor. Mr. SESSIONS addressed the Chair.

Mr. SPECTER. I have the floor.

Mr. SPECTER. Mr. President, regular order. I have the floor.

Mr. SPECTER. Well, then I would suggest----

Mr. SPECTER. Well, that's an interesting answer to some other question, but the question I just posed to you, are you aware of the fact that defendant was acquitted when he went back for another trial-- you talked about the defendant being guilty, are you aware of the fact that he was acquitted?

Mr. SPECTER. Mr. President, let me take strong offense to what the Senator from Missouri has said in a number of particulars, if I could have his attention. If I could have the attention of the Senator from Missouri. When he makes a comment about betraying the oath of office, I consider that insulting. I have been in this body a little longer than the Senator from Missouri has, and I know what my oath of office is. If the Senator from Missouri thinks that he knows enough, that can be his conclusion. He may be willing to make a judgment without hearing from Judge Massiah-Jackson, but I don't think that is the fair or the appropriate thing to do. When he talks about why send it back to the Committee, let's debate and decide this in the light of day, he is not only insulting this Senator, he is insulting the Committee--why send it back to the Committee without the scrutiny of the public? If the matter goes back to the Committee, there will be an open hearing, and the Senator from Missouri is on the Committee, although he wasn't present when Judge Massiah-Jackson's hearing came up. The Senator from Missouri has made a good political speech, but I don't think a speech becoming of the United States Senate's decision to hear both sides of the case. When the Senator from Missouri says that there has been offensive language, that is true, and that was taken up with the Committee and the Committee voted 12 to 6 to report Judge Massiah-Jackson out, notwithstanding that language which was, in fact, offensive, and she apologized for it. I don't know of any Senator on this floor or in this body--maybe there is one, the Senator from Missouri--who has never made offensive comments. But I don't think you would find people in many offices, if any, who would be disqualified from office because they made two offensive comments.

Mr. SPECTER. I raise those two points on specific matters cited by the distinguished chairman because there is a great deal which has to be analyzed. I am in total agreement with Senator Hatch when he says that there has to be review in a bipartisan manner to take a close look at Judge Massiah-Jackson's qualifications. I consider myself as a juror on the matter to look at the facts and make an impartial, unbiased determination. That is the conclusion which I came to in conjunction with my distinguished colleague from Pennsylvania, Senator Santorum, when we had the district attorneys in my office on January 23rd at the invitation of Senator Santorum and myself to hear the specifics of their complaints. They said at that time that they had some 50 cases to present on Judge Massiah-Jackson's record, and we responded that we wanted to hear them to see what they were. We hoped that they could be filed within a week, although whatever information they give us at any time, including today, is going to be considered. This is a very important matter when you have a lifetime Federal court appointment. In fact, 49 cases were submitted on Monday, February 2nd, a week ago yesterday. Those cases are currently under review. I am told that some 15 people are reviewing the cases in the Department of Justice and at the White House to make an analysis of those cases. Judge Massiah-Jackson is now in the process of reviewing those matters to present her views as to why she did what she did in those cases. Once that is concluded, I think that we would have to make an analysis. And the probabilities are high that another hearing will be required, although even that cannot be determined until we take a look at the cases to see what those cases say. When Senator Hatch outlined the history of this matter, he pointed out that the President submitted the nomination of Judge Massiah- Jackson to the Senate on July 31st of 1997, and that the papers were sent over on August 15th of 1997. I think it is worth noting, Mr. President, that an arrangement which has been worked out between Senator Santorum and myself as the Senators from Pennsylvania and the White House has been that for every three nominees submitted by the President's party, Senator Santorum and I would be able to make recommendations as to one judge from the Republican Party. Pennsylvania is the only State which has that arrangement, with the exception of New York which has had that arrangement going back to the 1970's when Senator Javits was the Senator from New York. Our recommendation was for the Eastern District and for former Pennsylvania State Supreme Court Justice Bruce Kauffman and that was our suggestion. There was no connection with any other nominee. But that arrangement has been carried out, and we expect it to be carried out in the Western District and the Middle District as well. As Senator Hatch pointed out, when we sought to have information about Judge Massiah-Jackson, none was forthcoming, and there was a reluctance on the part of the Judiciary Committee until further investigation was done. So Senator Santorum and I convened a hearing which was attended by Senator Biden, former chairman of the Judiciary Committee, in Philadelphia in early October. We asked all parties to come forward at that time, if they had any information adverse to Judge Massiah- Jackson. Among the witnesses who testified that day, one was a representative of the mayor. And Mayor Rendell has been very forceful in his support of Judge Massiah-Jackson. Mayor Rendell told me that Judge Massiah-Jackson had only one appeal taken and had been sustained on that. Senator Hatch pointed out that apparently is not the case with two other cases having been reviewed here. Mayor Rendell had been District Attorney in Philadelphia, and had subsequently been the Mayor of Philadelphia, been the interim District Attorney until 1985, and then elected Mayor in 1991. So he had some substantial familiarity with Judge Massiah-Jackson's record and was very forceful in his support of Judge Massiah-Jackson. In any event, after the hearing in Philadelphia in early October, the Judiciary Committee hearing was scheduled in late October. And at that time there was a review of Judge Massiah-Jackson's record at that time. Senator Kyl presided. Senator Sessions was present, and I was present. Others were present when we went into her record. Subsequent to that hearing, information has come forward from the Pennsylvania District Attorneys Association challenging Judge Massiah-Jackson on a variety of grounds. When I heard about that, I asked them to come in. January 19 was an inconvenient date, but we did meet on January 23 and then the sequence followed with their having presented their cases which we have in hand as of a week ago yesterday, February 2. It seems to me that what we need to do is to take a look at those cases. There have been citations against Judge Massiah-Jackson in some cases--and I am not going to go into them at this time--where Judge Massiah-Jackson's judgments were later upheld by the appellate court. The information which has been provided to me is that in 95 cases which were taken on appeal from Judge Massiah-Jackson, she was reversed in 14 cases. Some of those cases were civil as well as criminal. And I think it important to note that Judge Massiah-Jackson has not sat in criminal cases since 1991. I think there is agreement by all people who have taken a look at this nomination that a lifetime appointment is a matter of great concern, and I might add that there is a special concern among the district attorneys which has been expressed to me as the result of the decision by Judge Dalzell of the same court, the United States District Court for the Eastern District of Pennsylvania, in a case of Commonwealth v. Lambert in Lancaster County, a very serious homicide matter where Judge Dalzell suppressed evidence and said there could not be a retrial. Judge Dalzell has since been reversed by the Court of Appeals for the Third Circuit because the defendant did not exhaust State remedies, and Congressman Pitts and Congressman Gekas and I have filed legislation which would deny jurisdiction to a Federal judge to order no retrial. Federal judges have the authority to suppress evidence, but I do not think they have the authority to deny retrial. That is a matter for the District Attorney of Lancaster County, something I have some familiarity with, having been DA for 8 years and Assistant District Attorney for 4 years before that. But I think a retrial is a matter for the local District Attorney and the local court. But there is quite a concern among the District Attorneys of Pennsylvania about that action by a Federal judge and a concern as to this nomination, and as citizens, as District Attorneys, they obviously have every right to provide information to the Judiciary Committee on this nominee. I think we have to consider what they have to say. I think we have to consider Judge Massiah-Jackson's responses and then make a determination of the judgment as to whether she should be confirmed or not. I yield the floor.

Mr. SPECTER. The Senator from Utah has commented about two cases where there were sentences below the guidelines. I ask my colleague from Utah if he knew in the case of Commonwealth v. Earnest Smith, January term, 1986, 0144-0146 that Judge Massiah-Jackson was reversed for handing out a sentence which was too tough or long under the sentencing guidelines? I would be interested to know if the Senator knew as opposed to the staff knowing, if it please.

Mr. SPECTER. Mr. President, I think that there may well be an agreement on the basic course in this matter; that is, to have another hearing in the Judiciary Committee after we have reviewed all of the cases presented by the district attorneys, and after we have given Judge Massiah-Jackson an opportunity to reply. Before commenting about the background and history of the case and the actions which have been taken up until now, I would ask for the attention of our distinguished chairman, Senator Hatch.

Mr. SPECTER. No, I won't. When I finish--no, go ahead, I will yield.

Mr. SPECTER. Senator Hatch has cited the case of Commonwealth v. Smith, and noted Judge Massiah-Jackson's judgments in the matter. And I just wanted to inquire of my distinguished colleague, if I could have Senator Hatch's attention, does my distinguished colleague know that when the case came up on retrial before a different judge that the defendant Smith was found not guilty?

Mr. SPECTER. No, I do not have a question of you. I would like you to listen to this. If you don't want to listen to Judge Massiah-Jackson, I hope you will listen to a colleague who has something to say about what you just said.

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank my distinguished colleague for that reply. I have been in this body, now, going on 18 years. Senator Byrd and I have been able to maintain a long, unguarded border between southern Pennsylvania and West Virginia because we maintain that friendship between the two States. THE PRESIDING OFFICER. The Senator from Pennsylvania is recognized.

Mr. SPECTER. I thank the Chair. (The remarks of Mr. Specter pertaining to the introduction of S. Res. 170 are located in today's Record under ``Submission of Concurrent and Senate Resolutions.'')

Mr. SPECTER. Mr. President, at the outset I congratulate our distinguished colleague, Senator Byrd, for, as usual, a very erudite and well-thought-out statement. When I entered the Chamber, I saw Senator Byrd speaking, and I saw a thick sheaf of papers. I was glad to have the opportunity to listen to Senator Byrd's presentation because he is more than the conscience of the Senate; he is the intellect of the Senate and a great tribute to this body. So I congratulate Senator Byrd.

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank the Chair and yield the floor.

Mr. SPECTER. Mr. President, before concluding, I have been asked by the leader to seek unanimous consent that the period of morning business be extended to 12:45, with Senators permitted under this request to speak for up to 5 minutes each.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today for the purpose of submitting a resolution calling for the Budget Committee to add $2 billion for the National Institutes of Health, and I do so because of the unanimous view expressed by the Senate last year on a resolution that NIH funding should be doubled over the course of the 5 years following the date of the introduction of the resolution by our distinguished colleague, Senator Mack. That resolution was introduced on January 22, 1997. Regrettably, even though that resolution was passed 98 to nothing, when the budget resolution was returned, the appropriate health account has a reduction of $100 million. So that even though the Senate had spoken on its intent to see NIH funding raised, doubling over 5 years, and that was from a figure of about $13 billion, the funds simply were not there. That led to the introduction of an amendment to the budget resolution by Senator Harkin and myself, Senator Harkin being my distinguished colleague and ranking member of the subcommittee which I chair on Labor, Health, Human Services and Education. And we sought to add in $1.1 billion to carry out the expressed sense of the Senate. That was defeated 63 to 37. So that, while the Senate had expressed its druthers on a resolution, when it came to the dollars they simply were not there. Senator Harkin and I then went to work with our subcommittee and we were able, by making economies and establishing priorities, to add $952 million to the NIH account for an increase of 7.5 percent. After the conference we did increase the figure by some $907 million, so that now the National Institutes of Health has $13,647,843,000. And the National Institutes of Health, I suggest to my colleagues, and the country-- anybody who is watching on C-SPAN2--is the crown jewel of the Federal Government. The funding has been increased steadily during my tenure in the Senate, regardless of who was chairing the subcommittee. Although the budgets were always high, frequently had cuts called for by the administration, when the chairman was Senator Weicker, when the chairman was Lawton Chiles, when the chairman was Tom Harkin, or more recently under my chairmanship, we have increased the funding tremendously. And the National Institutes of Health has responded with really extraordinary advances in research identifying genes. Now the work has to be pushed forward to see exactly what can be accomplished in the next century. The President said on Tuesday night that someone born today would have a good chance of living into the 22nd century, 100 years. I think that is a possibility. But only if we maintain the phenomenal advances of the NIH. I personally have been the beneficiary of the tremendous advances of the National Institutes of Health. Two decades ago there was no such thing as an MRI. That device detected a problem for me. And other advances led to good results for me. I know millions of people have benefited from the research and the investment which we have made in the National Institutes of Health. But that takes money, and that is why this resolution is being offered by Senator Harkin, Senator Frist, Senator Reid, Senator Snowe and myself, to call upon the Budget Committee to add in $2 billion so we can carry forward the important work of the National Institutes of Health. Last year I attended the dedication of a building named in honor of Senator Hatfield, who has been a tremendous leader on NIH, and many other items, the distinguished chairman of the Appropriations Committee for many years. When I was there, I talked to Dr. Varmus, who is the head of NIH. I said, ``Dr. Varmus, what would it really take?'' As I asked Dr. Klausner, who heads the cancer research, ``Tell us what you can really appropriately use?'' Because many grant applications are turned down. He said, ``Well, Senator, I can't really tell you that because we have to file the wish list with the Office of Management and Budget.'' He didn't quite put it that way. But there are limitations. I said to Dr. Varmus, ``This year the Senate is going to want to know in an unvarnished form what you really think could be appropriately used for the National Institutes of Health.'' Then I made a comment that we still have the subpoena power, to really find out what it would take. And I suspect that it is a very large figure. But when you have a Federal budget of $1.7 trillion, I believe it is possible to establish priorities to make NIH a top priority. In the last few years, Senator Harkin and I have consolidated and eliminated 135 programs to enable us to save $1.5 billion. It's pretty hard to eliminate a program in Washington, DC, but we have been able to do that. With that $1.5 billion we have allocated those funds to NIH, guaranteed student loans, and many, many other important projects. So, with those brief comments I send this resolution to the desk. I ask it be held at the desk. I ask my colleagues who are listening on C- SPAN2, or their staffs, to take a look at the resolution because I would like to see cosponsors. I think we ought to have the 98 who voted last year for the resolution which I cosponsored with Senator Mack, and perhaps the two absentees as well.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to join my colleagues in introducing the ``Caring for Children Act,'' which will ease the financial burden of child care for American families--for those parents who work, and for those who choose to stay home to raise their children for a period of time. The sponsors of this legislation recognize the importance of affordable quality child care to the successful development of our children. Our bill would expand the Dependent Care tax credit to make it more accessible to families who need it, double the authorization for the Child Care Development Block Grant, and provide grants to small businesses to create or enhance child care facilities for their employees. This bill also includes provisions from the proposal I introduced last year with my colleague, Congressman Jon Fox, ``The Affordable Child Care Act,'' which provides a tax credit for employers who provide on-site or site-adjacent child care to their employees in order to reduce the child care expenses of the employee. Not all families choose the same option for child care. Many families rely on relatives, centers operated by churches and other religious organizations, centers at or near their workplace, or make other arrangements to provide care for their children while they work. In light of the diverse needs for child care in America, this bill represents a good start toward expanding the choices for American parents. And, any such legislation must recognize that there is a need to provide some relief to families where one parent stays at home. The need for affordable and accessible day care is critical given the increasing numbers of working parents and dual-income families in the United States. According to the Bureau of the Census, in 1975, 31 percent of married mothers with a child younger than age one participated in the labor force. By 1995, that figure had risen to 59 percent. Almost 64 percent of married mothers and 53 percent of single mothers with children younger than age six participated in the labor force in 1995. The cost of child care for families is also significant. Licensed day care centers in some urban areas cost as much as $200 per week, and the disparity in costs and availability of child care between urban and rural grows greater every day. For families which need or choose to have both parents work outside the home, the burden of making child care decisions is great. These figures serve to underscore the need for action on the part of the Federal government to provide the necessary assistance to our nation's working families. As Chairman of the Labor, Health and Human Services, and Education Appropriations Subcommittee, I am pleased that this legislation would build on an existing federal child care program by authorizing an additional $5 billion over five years to the Child Care Development Block Grant program, bringing total spending for this program to $2.5 billion annually by FY2002. The CCDBG program which works well in assisting low-income families acquire child care and helped over 93,000 Pennsylvania families last year. By increasing the authorization, we can help even more families without creating a new entitlement program. Our legislation will also require States to create and enforce safety and health standards in child care facilities, and provide money for the Department of Health and Human Services to disseminate information to parents and providers about quality child care, through brochures, toll-free hotlines, the Internet, and other technological assistance. The ``Caring for Children Act'' complements my recent efforts to assist working families in the context of welfare reform and children's health insurance. When Congress debated welfare reform in 1995 and 1996, I worked to ensure that adequate funds were provided for child care, a critical component for welfare mothers who would be required to work to receive new limited welfare benefits. I am pleased that the welfare reform bill that became law provides $20 billion in child care funding over a six year period. Similarly, I was pleased to participate in the bipartisan effort in 1997 to enact legislation to provide $24 billion over the next five years for States to establish or broaden children's health insurance programs. In conclusion, Mr. President, I believe that it is critical that the 105th Congress not adjourn without enacting legislation to assist families in their ability to afford safe, quality child care for their children, either at home with a parent or another arrangement. Our legislation will provide peace of mind to millions of American families struggling to balance career and child raising. I urge my colleagues to join me in cosponsoring this important legislation, and I urge its swift adoption.