Judiciary Committee deadlocked on Rollins nomination for Massachusetts U.S. Attorney

By Matt Murphy
State House News Service

Suffolk County District Attorney Rachael Rollins’ path to making history as the first Black woman to become U.S. attorney for Massachusetts got more complicated on Thursday after a Senate committee deadlocked over her nomination, with Republicans unanimous in their opposition to the reform-minded prosecutor.

The Senate Judiciary Committee voted 11-11 on whether to recommend Rollins to the full Senate, breaking with the committee’s tradition of easily advancing White House nominees for U.S. attorney that enjoy the support of home-state senators.

The Senate must now take two votes, instead of one, to bring Rollins’ nomination to the floor and to confirm her, both requiring a simple majority. Any opposition among Democrats in the evenly divided Senate carries the potential to derail President Joe Biden’s nominee.

While Democrats on the committee rallied to her defense and pointed to bipartisan support in Massachusetts from political leaders and law enforcement, Republicans, led by Sens. Tom Cotton and Ted Cruz, challenged Rollins’ record of declining to prosecute some lower level offenses, calling her a “radical” and “pro-criminal.”

“I knew this was not going to be easy and that the work we’re doing here in Boston is scary to some people who are deeply invested in the status quo because the system works incredibly well for them. So although it is a tie, it is not a loss,” Rollins said, appearing hours after the vote at a forum hosted by the Greater Boston Chamber of Commerce.

Rollins said the “spirited discussion” on the committee was “uplifting to hear, on both sides,” and she said she hoped Republicans with concerns about her record would look at the data that supports her approach. “Either way, I’m going to continue doing the work every day,” she said.

The committee vote came after Cotton, of Arkansas, delayed consideration of Rollins’ nomination by a week. Sen. Dick Durbin, the Democratic chair of the committee, said not one of former President Donald Trump’s nominees for U.S. attorney had a roll call in committee, and only three recorded votes on nominees for federal prosecutor positions have been held since 1975, with the last two in 1982 and 1993.

“During the Trump administration, Democrats respected that precedent out of comity and courtesy and an enduring belief that there should be norms in every institution,” Durbin said.

The Illinois Democrat noted that not a single Democrat opposed Trump’s nomination of Brian Kuester for U.S. Attorney in the Eastern District of Oklahoma, despite Kuester’s vocal opposition to a successful ballot question that made simple drug possession a misdemeanor.

“I acknowledge that while there is precedent, it is rare. It is unusual, but it’s also rare for the president to nominate a radical pro-criminal prosecutor for a US attorney position,” countered Cotton, who accused Rollins of wanting to “destroy the criminal justice system from within.”

Cotton and other Republicans raised Rollins’ March 2019 policy memo making it the default position of the office to decline to prosecute 15 low-level, non-violent crimes such as misdemeanor trespassing, drug possession, making threats and breaking and entering. That memo caused some friction between her office and Gov. Charlie Baker at the time.

Sen. Ted Cruz, of Texas, went through a detailed analysis of Rollins’ memo and the risks he saw as inherent in failing to prosecute the 15 enumerated crimes.

“If you want to steal a bunch of stuff, this is your person,” Cruz said.

Rollins said Thursday her office still prosecutes close to 25 percent of crimes that fall under those categories when warranted, but that over-prosecution of misdemeanors has been shown to increase the likelihood that the individuals prosecuted will get arrested again in the future.

“If you are a business owner and the same people keep shoplifting, we prosecute them,” Rollins said, adding, “We know that tough on crime policies don’t make us safer.”

Rollins said putting less work into pursuing misdemeanors and criminalizing substance use disorders and mental health problems has allowed her office to devote resources to the 1,300 unsolved homicides in Suffolk County.

Sen. Chuck Grassley, the ranking Republican on the Judiciary Committee, said Rollins’ biggest mistake was publishing a list of crimes she did not want to prosecute, telegraphing to criminals how she would approach certain crimes.

“Every prosecutor has prosecutorial discretion, what to do and not do. I think what’s wrong with what she did was speaking out about it and telling people if you commit these crimes you won’t be prosecuted,” Grassley said.

Cotton also raised accusations brought against Rollins by a Dorchester resident, Katie Lawson, who accused Rollins of threatening her and flashing her car’s siren lights as both were leaving the South Bay Center mall last year. Attorney General Maura Healey cleared Rollins of any wrongdoing, but Cotton called it “truly a bizarre case.”

“Her personal judgment is in question, but there’s no question her professional judgment is terrible,” Cotton said.

Sen. Cory Booker questioned the strength of the arguments being made against Rollins, noting that Democrats and Republicans, including members of law enforcement, had written to the committee to support her nomination.

Booker said it “doesn’t hold water” to call Rollins radical and pro-criminal after the Senate’s strong vote in favor of sentencing reform during the Trump administration.

“That sounds like rhetoric that doesn’t meet reality,” Booker said.

Sen. Chris Coons, a Delaware Democrat, also quoted from letters received by the committee supporting Rollins’ nomination from former Govs. Deval Patrick, a Democrat, and William Weld, who was twice elected as a Republican and also served as U.S. attorney for Massachusetts himself.

“The idea that Ms. Rollins declines to prosecute for drug crimes, including for fentanyl, is just inaccurate,” Coons said, indicating he could prove Rollins has pursued charges for possession, intent to distribute and trafficking in fentanyl and heroin.

He also said he was disappointed by the break in precedent of allowing the executive and local senators to make decisions about top federal law enforcement positions.

Sen. Mazie Hirono, of Hawaii, called it “insane” to describe Rollins as “pro-criminal.”

“I would like to have a U.S. attorney who actually thinks about what we should do in terms of prosecuting crimes, not just prosecuting everybody,” Hirono said.

U.S. Sens. Elizabeth Warren and Ed Markey have been lobbying for senators to support Rollins’ nomination, and after the vote both said they were confident Rollins would be confirmed. Several other Biden nominees for positions in the Justice Department, including Kristen Clark and Vanita Gupta, have been confirmed after tie votes in the Judiciary Committee.

“DA Rollins has extensive law enforcement credentials and a proven track record of reducing crime and supporting victims. She is the right candidate for U.S. Attorney in Massachusetts and we were glad to recommend her. Today, she took the next step in what ultimately will be her full confirmation, and we expect our colleagues will confirm her swiftly,” Warren and Markey said in a joint statement.

Sen. John Kennedy, of Louisiana, said he spoke with Warren “at length” on the floor of the Senate about Rollins, and took her advice to examine Rollins’ record.

While he said he usually defers to home-state senators and respects the right of voters in Suffolk County to elect a prosecutor like Rollins, Kennedy said that when it comes to the enforcement of federal law a U.S. attorney should not be able to pick and choose which crimes to prosecute, and that discretion should only be applied to the punishments sought.

“No matter how we’re feeling or what’s going on in our lives, we’re responsible for our actions. We have to be. Society can’t function without that guiding principle,” said Kennedy, who voted against Rollins.

Sen. Diane Feinstein, of California, read Suffolk County Sheriff Steven Tompkins’ letter of support for Rollins, and Sen. Patrick Leahy noted the support of law enforcement and role discretion plays in all prosecutors’ offices.

Sen. Amy Klobuchar, of Minnesota, said every prosecutor makes decisions that can be second-guessed, noting how her own decision to prosecute the late Major League Baseball legend Kirby Puckett for sexual assault could have been held against her.

“If we start examining every decision and just go on who we would want to have first in someone’s local areas, we’re going to have a huge problem,” Klobuchar said.