Constitionality of mandating flu shots
But I think John Breaux probably covered every- thing that needed to be dealt with here today. She has been nominated to be circuit court judge for the District of Co- lumbia Circuit Court of Appeals. How would you like to introduce some members of your family to us at this time, please. As a Federal judge, what would you do if you were faced with a situation where the sentencing guidelines called for you to im- pose a sentence that you felt was too harsh? The Huntington case for me, fortunately, fell right in the heartland of D'Oench Duhme. It was a situation where there was a promissory note, and so on, and I felt bound by the 50-year-old Supreme Court precedent and Congress' statute. I introduced a bill to try to correct that, as a matter of fact, just so we take into account the little folks who do not have the advantage of having written con- tracts. I think I will be able to apply those things, but cou- ple them with a system which is much more prepared to accept — as our district court system is, and I think with some of the re- forms that have come along, it is particularly so — prepared to ac- cept the substantial increase in dockets. Some Senators, as well as some com- mentators, have criticized judicial opinions that they label the work of judicial activists. I sit in a State where I am constrained to follow the law, and I have done that. Well, it is one of the great challenges of being a judge, is that you understand your primary obligation, and it may be that you feel as the case develops that there might be some other way to go. Judge Wells, I do not profess to understand Louisiana politics, and even perhaps less Ohio politics. I think 7 were reversed out of 147 appealed or something. That is the reason why we are protected by life tenure. For these reasons, I firmly urge this committee to recommend Ginger Berrigan to the full Senate for confirmation to the Federal District Court in New Orleans. Chairman, I appreciate the opportunity to appear before you and the committee, and I would be glad to answer any questions you might have. We would now like to call Judge Judith Rogers to the stand. JUDITH ANN WILSON ROGERS, OF WASH- INGTON, DC, TO BE U. CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA Senator Kohl. I assume that those same procedures would work well on the circuit court, and I think my colleagues would attest to the fact that I am timely in producing my opinions and commenting on their's. Judge Rogers, since the inception of the Federal Sentencing Guidelines developed by the Sentencing Commission have been the subject of debate, largely because of concerns about mandatory minimum sentences — in fact, one district court judge re- signed, because, according to press accounts, he felt that the man- datory guidelines were too harsh and too rigid. On the other hand, there is a very real potential for unfairness. Senator Metzenbaum is going to be sitting in my stead. Everybody who works with you in your courtroom stays on top of that docket, and you in an early point in any case have an opportunity — I do it personally, rather than through surrogates or law clerks — to sit down with the lawyers, so that you can get a good feel for what direction a case needs to go, and that has proved useful. I was trying to explore with Judge Rogers earlier the situation in which we want our judges to be in- sulated and protected against public opinion. One was that I was a criminal defense attorney when I was in private practice, and I tried felony cases in Federal court as a practitioner. It does do something that overcomes the isolation that judges commonly feel. What is your opinion about a situation in which you do not have a prece- dent and you are free to exercise some judgment in this particular field. When the law is unclear, then it is a different in- quiry. When there is a case where the law is cloudy, then one tries to clarify it. If it is not and it is a generaliza- tion, then one tries very hard to understand what the legislative intent was, and I think we have had some discussion about ways of doing that. You have a factual situation in which you are a trier of fact now.
Then, second, as I said before, in fact this Monday I am going to Richmond to begin a week of hard work pre- paring for what I hope will be my new responsibilities. Which made recommendations about implementing the Civil Justice Reform Act of 1990, that Sen- ator Kohl mentioned? When I was appointed in 1984 a magistrate judge in Springfield, we had over 800 pending civil cases. But it does mean that the courts feel to the people as if they are their courts, and I think that is something that you could lose in an isolated position where judges were kept away from people. There are many, many decisions one makes as a judge not to do things that others urge you to do, because you are a judge. In other words, you do not go out on the cam- paign stump and say I am for law and order or I am for greater police protection. Do you listen to what they are saying, or do you say, wait a minute, I cannot listen in this case, I know there is a problem out there, I know there is violence — I know all of this, but I am taking a very academic approach and I am insulated against the felt necessity of the time? Fortunately, I am a trial judge, and so I would say do I let that influence me? Constantine, Schenectady, NY, to be Administrator, U. Drug Enforcement Administration 688 Alphabetical List and Material Submitted Biden, Chairman Joseph R., Jr.: List of law enforcement organizations and former DEA Administrators supporting the nomination 692 Questions for Superintendent Thomas Constantine and his responses 747 Constantine, Thomas Arthur: Testimony 688 Questionnaire 716 Leahy, Hon. You note that she has a degree in psychology, which is a good background for our profession, as well as being on a court I think, from the University of Wisconsin, a masters in journalism from right here in Washington at American University, and a juris doc- torate from Louisiana. Chairman and members of the committee, I am pleased to join with Senator Breaux and Senator Johnston in his absence in support of these two outstanding candidates. The officer never offered such testimony, the trial judge never made such findings, the officer said he took out his shotgun because he was concerned about his safety. As society's attitudes change about certain mores and practices, the interpretation of those original words also change. And within that framework, which I consider to be a discipline, that I would reach a view in a case of first impression. Do social mores play any role in your interpreta- tion of a constitutional provision? Justice Holmes or one of his prede- cessors might have interpreted the specific language of the Con- stitution differently. Would you please raise your right hand: Do you swear that the testimony that you shall give in this proceeding shall be the truth, the whole truth, and nothing but the truth, so help you God? From your experience, what have you learned about the problems facing lawyers dealing with the issues that affect the mentally ill? Well, I think there are probably a couple of areas. Jack 685 Prepared statement 686 Testimony of Nominee Thomas A. I think that kind of spirit and af- fection and support for the democratic system is very, very impor- tant, and that is the kind of active Democrat that he has been. She is a person who is not only well read, but well traveled, having lived in several different areas of our country, and I think that is important, because it brings a great deal of knowledge about what this country is all about. Ohio, limiting the conditions under which a police officer may seize a citizen, that the subjective view of the officer and his concern for personal safety was a sufficient ground to uphold the seizure of a gun that was found in the car. And in my view, it was our obligation and that is why I wrote my opinion as I did. In other words, you were simply applying the doctrine of stare decisis, and that did not reflect your personal opinion in any way in terms of whether you felt the officer acted reasonably under the circumstances? The issue was did the officer have articulable suspicion that the passenger engaged in unusual conduct such that the officer could in his experience reasonably conclude that crimi- nal activity was afoot. The question I have is do you believe that the Constitution is in fact something that is subject to interpretation in a different time and a different era? And my opinions, I think if you look at them, reflect that where I am presented with a question of first impression, that I look to the language of whatever provision we are addressing, that I look to whatever debates are available, that I look to the interpretations by other Federal courts, that I look to the interpretations of other State courts, and it may be nec- essary, as well, to look at the interpretations suggested by com- mentators. As we have become more sophisticated, our interpretation of the Constitution has changed. Judge Ponsor has been nominated to be district judge for the District of Massachusetts. I will also be responsible for handling bankruptcy appeals, as a district court judge, which was not part of my work as a magistrate judge, and I think that is another area where I will be putting in some particularly hard work to get myself ready. Judge Ponsor, your response to the committee questionnaire indicates that throughout your career you have been committed to the rights of the mentally ill. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God? METZENBAUM, Ohio STROM THURMOND, South Carohna DENNIS De CONCINI, Arizona ALAN K. COHEN, Maine DIANNE FEINSTEIN, Ca Ufomia LARRY PRESSLER, South Dakota CAROL MOSELEY-BRAUN, Il Unois Cynthia C. WTfl A^}0 8ri«3wiit XJU V^iiii^^^^'-' * l OOS i-\ I I CONTENTS HEARING DATES Page Thursday, January 27, 1994 1 Thursday, February 3, 1994 349 Thursday, February 24, 1994 511 Wednesday, March 2, 1994 675 Thursday, March 3, 1994 761 Thursday, March 10, 1994 959 Wednesday, March 16, 1994 1059 THURSDAY, JANUARY 27, 1994 Statements of Committee Members Kohl, Hon. Wil Uam S 14 Introduction of Nominees Kennedy, Hon. GRASSLEY, Iowa HOWELL HEFLIN, Alabama ARLEN SPECTER, Pennsylvania PAUL SIMON, Il Unois HANK BROWN, Colorado HERBERT KOHL, Wisconsin WILLIAM S. Disler, Minority Staff Director Sharon Prost, Minority Chief Counsel (II) Yh Aheu 0IJ6US mri^G^^ ^ '«?