Constitionality of mandating flu shots
Constitionality of mandating flu shots
J-103-28 Printed for the use of the Committee on the Judicisiry /^^^2-A S. J-103-28 Printed for the use of the Committee on the Judiciary GOVERNMEinr i X)CUIIENTS OEPARTMEWT ' ^RECEIVED FEB 2 4 2000 1 U. GOVERNMENT PRINTING OFFICE 90-550 WASHINGTON : 1995 For sale by the U. Government Printing Office Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 ISBN 0-16-047739-5 COMMITTEE ON THE JUDICIARY JOSEPH R.
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 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? 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. 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.
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? Our district court has had a long list of distinguished jurists, judges such as J. I would also like to acknowledge the presence of my hard-work- ing secretary, Denise Lewis, my law clerks, and my special assist- ant. The goal of this legislation is to streamline the judicial proc- ess and to make it more accessible, affordable, and fair. Chairman, as my speech indicated, in the District of Columbia we have taken a number of steps to ensure that judges do become actively involved in the pace and control of litigation. There is a good deal of controversy right now in terms of the mandatory guidelines that were adopted back in the early 1980's to minimize judicial discre- tion in the imposition of sentences. So do you place any priorities in terms of who you would look to in the way of trying to determine what Congress really intended? To be honest, I try to look at the whole record, and where it is so muddy that I cannot draw a real conclusion from it, then I just have to go elsewhere. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO Senator Metzenbaum. I think you met my daughters, Kristin Brooks of Cleveland, OH, and Caryn Brooks of Berkeley, CA, representing Lauren, my daughter, and Stan Miller, and my grandchildren, Storm and Tenaya Miller of Mt. I particularly find when it is contracted for by the parties in ad- vance, that it is a wonderful assistance to having people anticipate how their problems will be resolved in a swift way. Paul: Letter to Chairman Biden from the National Association of Police Organi- zations, Inc., Washington, DC, Oct. Strom: Questions for Chief Justice Barkett 477 Responses from Chief Justice Barkett 480 THURSDAY, FEBRUARY 24, 1994 Statements of Committee Members Hellin, Hon. It is a national holiday back home, and I certainly want to join in that holiday. Turning to Ginger Berrigan, I believe she will be an excellent ad- dition to the Court for the Eastern District of Louisiana, and I ap- plaud President Clinton for nominating her. As you know, Congress passed the Civil Justice Reform Act in 1990. I have sat on a case where a mandatory minimum sentence was challenged, and we upheld it. What I am asking you is not whether you think they are constitutional or should be upheld, but from your point of view as a judge, what is their effectiveness? If I cannot find that, then I am going to have to go back to basic principles and try to remember that what we are ultimately trying to do as judges is do something which is fair. Because, as you know, a great deal of debate takes place on the floor, but following the debate, mem- bers insert extensive materials that are not uttered on the floor, but are simply inserted for the record, which may lead you down a labyrinth course to a dead end. We are happy to welcome all of them and happy to welcome you. Given your experience both as a judge and a litigator, what are your thoughts on the proposal to use court-appointed ar- bitrators? Certainly, as we have seen many, many attempts at trying to find alternatives for people to resolve their disputes, arbitration is one of the time-honored ones and has great value. 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? So I think that will give me a leg up, so to speak. The question is what rec- ommendation do you have in terms of trying to reform the rules? I think, first of all, you need very close case man- agement. Of course, I cannot do anything about those concerns except di- rect them to the people who can. Is that something that should be dismissed out of hand, as someone who has run for reelection as a judge? I follow the law and I follow it as it comes to me.