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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.

What are you going to be doing 21 to get yourself in a position to be able to decide these kinds of cases, which may amount to a flood tide in the coming years? I have two things in my background which will help me. And certainly there was a period in this country where there was a great expansion in what people wanted to do, but it is not my judicial philosophy. I sit in a county where 20 of us will be up for election this term, and there are legions of people who run. Yet, let me say this: I know it is a highly criti- cized system, but it is one I have been in for a long time. And somebody running against you, do they hold up your written opinions? Sometimes they just go on television and show slamming jail door cells or something and put their name across the screen. I was wondering whether or not you got caught up in the pol- itics of that somehow. I am not arguing one way or the other whether you should be more to the right or the left, but obviously there is a political swirl taking place in our society, and always has and always will. If it is clear on its face, that is the intent, whether there has been another case in the court of appeals or not. Do you take into account their actions within the context of the world in which they have to function?

I suspect that you are going to have an increased workload in that regard. Do you have any thoughts on the importance of stare decisis and the need to follow settled law? I think what you are suggesting is some- thing different. We have a very vigorous election system, very vig- orous for the judges. When you run, how do you run a campaign for the court? Actually, we formed com- mittees who do much of it. Well, we cannot say anything really except judge us on our record. You have a State in which you have two Demo- cratic Senators, and we had a Democratic President elected in 1992. I ran in the contested primary on the Democratic ticket for the supreme court, and I was the endorsed Democrat in that race. In other words, in your own mind, are you able to distinguish, or is there a distinc- tion between what is taking place currently as far as public opin- ion, and what you might determine to be something so compelling in the way in which society is drifting, whether left or right, that you would feel compelled to respond to that? You are looking at the actions of a police officer under a certain set of circumstances and you listen to the entire presentation of facts, that the police officer is in a very dangerous area with lots of shootings of police officers in recent times.

Judge Rogers, would you raise your right hand: Do you swear that the testimony you shall give in this proceeding shall be the truth, the whole truth, and nothing but the truth, so help you Grod? But I can foresee situations where the D'Oench Duhme doctrine may con- ceivably be overused, and I think we need to be sensitive to it. One final question: Your experience has been rather limited in the field of criminal trials. These critics recognize the importance of stare decisis, judicial precedent, and sometimes these two goals, to avoid what some may call legislating from the bench and to follow settled law, may conflict. That is our primary obligation, is to follow the law. Do you think at times a judge has a case before him or her and it cries out for a specific kind of a conclusion, and yet, based upon stare decisis, the decision would fall the other way? But it is a fairly common occurrence that one has 24 to look seriously at being constrained by the law. That is different I think in your question than the unprovided case, where you get a situation where there has never been any- thing you can lean on. But I was curious, do you have an election system in Judge Wells. We do not have such a system in Maine, except for probate judges. I think 7 of your opinions out of 147 were ap- pealed, a pretty outstanding record, I would think. It is a very challenging thing to do and you run it very close and tight and with good advisors. Not the mechanics of running, but the basis Judge Wells. But do you draw a distinction between public opinion and what Holmes might call the "felt necessities" of the time?

Daniel Patrick: Reprint from the American Scholar: "Iatrogenic Government" 734 Chart of homicides per 100,000 746 THURSDAY, MARCH 3, 1994 Statements of Committee Members Feinstein, Hon. She also is a member and a partner in a very prominent firm in Louisiana, the Gravel, Brady & Berrigan firm, which is well known and well respected and has produced some outstanding legal schol- ars for our State and practitioners. But I want to take a moment to add my voice of support to that of Senator Breaux for Tucker Melancon, who I have known for a good long time. Justice Holmes said something which comes to mind now, and that is that the life of the law is not logic, it is experience. I would like to explore some of your ideas about the interpretation of the Constitution. Now, as an appellate court, I am obligated, where it is conceded by the Grovemment, where the trial court has found that a citizen was seized, I am ob Ugated, as an appellate judge, to apply the test that the Supreme Court has announced and repeatedly reaffirmed, and that is all I did. There is an evolutionary interpretation of what was originally de- fined, at least, in the Constitution. Some of the debates which I have heard and to which 16 I think you may be alluding are interesting, but as an appellate judge, my obligation is to apply precedent. What happens when a society is so overwhelmed with fear of crime that they decide that sterner actions have to be taken? I assume you might have some problems with that particular policy in the practice of certain police. There is a second aspect to it, and that has to do with community acceptance, how much can we ask of our communities, how much can we properly ask of our communities, and I believe that is an- 19 other area where work needs to be done by advocates on behalf of the mentally ill, and people really need to have a dialog about what is really best for people who suffer from these disabilities and what is best for the community. What can Congress do, in your opinion, to assist in assuring that the mentally ill get adequate legal representation? Well, I think probably the primary thing is to make sure that the judges who come before you are sensitive to the problems, and make sure there is sufficient funding for such orga- nizations as the Legal Services Corporation, so that they will be able to assist problems. [Laughter.] Let me follow up with just a couple of questions. You are aware that Justice Scalia does not hold a very high opinion of legislative history and, as a matter of fact, he maintains it is a fig- ment of our imagination. Judge Wells, Congress is contemplating legislation aimed at reducing the overcrowding in Federal courts, by allowing Federal judges to assign some of their smaller cases to court-appointed arbitrators. We will see if we cannot move your confirmation process along.

Solomon P 525 Testimony of Nominees Samuel Frederick Bieiy, Jr., San Antonio, TX, to be U. District Judge for the Western District of Texas 518 William Royal Furgeson, Jr., El Paso, TX, to be U. District Judge for the Western District of Texas 519 Orlando Luis Garcia, San Antonio, TX, to be U. District Judge for the Western District of Texas 521 John Henry Hannah, Jr., Tyler, TX, to be U. District Judge for the Eastern District of Texas 523 Janis Ann Graham Jack, Corpus Christi, TX, to be U. District Judge for the Southern District of Texas 524 Alphabetical List and Material Submitted Biery, Samuel Frederick, Jr.: Testimony 518 Questionnaire 527 VI Furgeson, William Royal, Jr.: Page Testimony 519 Questionnaire 554 Gsircia, Orlando Lms: Testimony 521 Questionnaire 580 Hannah, John Henry, Jr.: Testimony 523 Questionnaire 606 Jack, Janis Ann Graham: Testimony 524 Questionnaire 638 WEDNESDAY, MARCH 2, 1994 Statements of Committee Members Biden, Chairman Joseph R., Jr 675 Prepared statement 677 Hatch, Hon. Charles E 696 Introduction of Nominee Moynihan, Hon. Patrick J.: Questions for Superintendent Thomas Constantine and his responses 756 Moynihan, Hon. So I think that type of blend is important and very helpful to understanding the people and the cultures that come before the court. JEFFERSON, A REPRESENT- ATIVE IN CONGRESS FROM THE STATE OF LOUISIANA Mr. I have come principally to talk about Ginger Berrigan, because she is a constituent of mine and resides in New Orleans, a place that I represent. It had nothing to do with anything the passenger had done. I think you would probably agree that the Constitution as written is not locked in the concrete of the originsil time in which it was formu- lated. It evolves over a period of time in terms of our interpretation, as we become either more sophisticated or more morally conscious of certain practices? My ob Ugation as an appellate judge is to apply precedent. The question I am really asking is: What happens when we go the other way? One is the separate area of actual legal rights, which can be very complex, and that has to do with what sorts of procedural protec- tions may be afforded to people who are suffering from mental ill- ness, and what the court's responsibilities are. Protocol does not permit you to ask us the same question, I might point out.

And over all of these years, I never heard him say anything nasty or unkind about any political race that he was in of the opposition. Ginger Berrigan is also a person I think that brings unique qualifications to this committee. Our court declined to do that and, instead, a majority of the court decided that, contrary to the requirements of the long-standing and often reaffirmed decision of Terry v. Of course, they are acting on our behalf to protect all of us. The issue was where the Su- preme Court has set out a test, is not the appellate court obligated to faithfully apply the test enunciated by the Supreme Court, whether or not we personally agree with it. The case has not come up specifically on that point, and you are not necessarily bound by precedent in that case or it does not exist. Unless you are prepared to endorse Judge Bork's interpretation of the original meaning of the Constitution, which was severely criticized, because he seemed to be articulating a phi- losophy that existed a century or so before. When I was taking my master's in judicial proc- ess at the University of Virginia Law School, one of the points em- phasized was the growth of our common law system based on the English common law judge system. We have expanded inter- pretations of provisions of search and seizure over a period of time. We would like now to call Judge Michael Ponsor to the stand. The one area where I believe that I will need to look for- ward to help from the Federal Judicial Center and from my col- leagues on the court will be in the area of presiding over felony jury trials, and I think that would be the main area of getting up to speed.

I would say to my colleague Senator Cohen, you will note from his resume he has been an active Democrat, but you should not have any fear, because he has always performed those political du- ties with class and with style. Yes, but despite that, he has been very success- ful. But we are very pleased to present him to the committee. The government asked our court to extend an opinion of the U. Supreme Court that applied to car drivers who were stopped for traffic violations to passengers of cars. I indicated in my opinion that, of course, officers have to take reasonable steps to protect themselves from safety, protect themselves so that they are safe. You are now faced with a constitutional issue or interpretation of the Constitution that the Court has not ruled on directly or has ruled on directly 50 or 60 or 100 years before. What I mean is that, as we look at civil rights, for example, over a period of time, we have expanded civil rights in this country, and I think justifiably so. I have con- ducted misdemeanor trials and a large number of civil trials, but I have not sat on a felony jury trial, and I think that will be a dif- ference. Well, what areas of the law do you think you will need to study up on to get up to speed, should you be confirmed for this position? Well, I feel fortunate, because, as a magistrate judge in a single-judge court in our rural area of Massachusetts, I have handled many of the responsibilities of district court judges already. TESTIMONY OF MARJORIE RENDELL, OF PENNSYLVANIA, TO BE U. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA Senator Metzenbaum. Rendell, do you have any opening statement you would care to make? Bob — Continued Articles relating to the nomination of Rosemary Barkett — Continued ^^ The News-Journal, Oct. We need to move our civil cases along and we need to try to move them along in a way which reduces expense, so that our Federal courts remain open to little people, ordinary people, as well as large corporations. But as Judge Alvin Rubin used to say so often, a judge must be more than a thinking machine, a judge must have an unswerving commitment to equsd justice under the law. She has spent her life confronting discrimination and winning. And I think the type of individual calendar and case manage- ment successes in the trial court and, indeed, in the appellate court indicate that individual judges can make a real difference in the pace and conduct of litigation. Well, what kind of steps will you take to best con- trol your own docket? As an appellate judge, I have a number of proce- dures that I trust I will apply on the Federal court, as I have on the District of Columbia Court of Appeals. We do have mandatory minimum sen- tences and I have enforced them, as I mentioned, when the issue has arisen. One final question: In the State of the Union Message this week. The question I have is, what about situations where you have small vendors? Wells, do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God? It can be very important, but it is not the only way to resolve disputes, and in America we need to make available as many as possible. In recent years, much has been said about Federal courts' increased caseload generally and the resulting prob- lem of docket backlogs. I would like the benefit of your own experience in terms of deal- ing with the courts. She has a well-earned reputation for competency and integ- rity in our legal community, and I feel certain that she will distin- guish herself as a scholar on the bench. She is a virtual champion of civil liberties and civil rights for all people. We have spent considerable time on studies, as well, on the application of computer technology to assist the judges, as well as judicial train- ing. We do not have such guidelines in the District of Columbia. As an appellate judge, my obligation is to enforce the laws that the Congress passes or, where I am now, that the District of Columbia Council passes. Obviously, every one of us has an interest in seeing to it that the FDIC and RTC in fact have this tool at their disposal in order to protect the public's interest. My bailiff, Rob Pacsi, and Tom and Peg Campbell are here from Cleveland, OH, Madelaine Fletcher of Baltimore, MD, Bob Fenton of Alexandria, VA, and Wendy Leatherberry of Washington, DC. All I can say is that I am pleased to be moving to a bench hope- fully that has the full facilities to offer these options. It is sort of as if trial has become to a client, as somebody has said, sort of like surgery would be to a patient. You participated in the Ohio Supreme Court and the Ohio Bar Association Task Force on Gender Fairness? We would provide funds for education and training programs for Federal judges and court personnel. I think that and the assistance of other judges will give me all the hope that I will need to get ready. As I understand it, you were appointed to an ad- visory group in Massachusetts, Federal District Court, Civil Justice Reform Committee Judge Po NSOR. I am happy to say that we now have approximately 330 pending civil cases, and I think part of the explanation for that reduction is in very close case management by the judge. I am setting schedules, I am assisting in settlement all the time. I think our new local rules which were enacted pursuant to the Civil Justice Reform Act and the changes that have recently come into effect in the Federal Rules of Civil Procedure will make discov- ery a lot faster and a lot cheaper for a lot of litigants, and I think that is something that judges should rightly have on their mind.

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