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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. 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^^ ^ '«? 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.

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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? Orrin G.: Questions for Chief Justice Barkett 469 Responses from Chief Justice Barkett 472 Supplemental questions for Chief Justice Barkett and her responses 476 Simon, Hon. This is a person who brings a real expertise to the question of criminal law and the rights and obligations and responsibilities of defendants, which is going to be so important for the remainder of this century and into the future. Chairman and Senator Cohen, I enthu- siastically recommend both of these nominees. Melancon also has the entire Parish of Avoyelles in the back of me in the audience. So I am proud to be a part of this nomination process and to sup- port his nomination, as well. Would you consider yourself bound to act by such a precedent? Under what circumstances, if any, do you believe that an appellate judge should overturn precedent within his or her own circuit? I would be bound by the opinions of the circuit, and only in those extraordinary cases where the en banc court overruled a decision by a three-judge panel would I be in a position not to follow an outstanding decision of the circuit. Judge Rogers, as chief judge of the District of Co- lumbia Court of Appeals, you delivered a speech discussing civil justice reform and the problems facing the District of Columbia court system. That is my role as an appellate judge, to apply precedent and look for the closest analogy I can find. But as a judge, I have been dealing with them strictly from the point of view of legal challenges to them. If I can't find any parallel decisions from other districts or other circuits, I will try to find analogous situations and reason by anal- ogy. Do you place more emphasis on what a commit- tee chairman or ranking member says than you would upon some nonmember of the committee? That case involved the confirmation of an award made by the American Arbitration Association in a matter concerning a patent license dis- agreement.

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