Senate Debate on Empathy
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Goodwin Liu
U.S. Circuit Judge, Ninth Circuit
Nominated: February 24, 2010
ABA Rating: Unanimously Well Qualified
Committee Questionnaire, Supplements
Hearing Date: April 16, 2010
Questions For The Record
Reported By Committee: May 13, 2010
Confirmed By Senate:

http://judiciary.senate.gov/nominations/111thCongressJudicialNominations/upload/GoodwinLiu-QFRs.pdf

 

 

6. Do you believe that it is ever appropriate for judges to indulge their own subjective

sense of empathy in determining what the Constitution and the laws mean? If so,

under what circumstances?

 

Response: To the extent that empathy means an ability to understand a claim from

another person’s point of view, I think it can help a judge to appreciate the arguments on

all sides of a case and to ensure that the litigants’ claims have been fully heard.

However, to the extent that empathy causes a judge to be biased or prejudiced or to

identify with a particular litigant or outcome, it is inappropriate and must have no role in

judicial determinations of what the Constitution and the laws mean.

 

 

 

7. Do you believe that it is ever appropriate for judges to indulge their empathy for

particular groups of persons? For example, do you believe that it’s appropriate for

judges to favor those who are poor? Do you believe that it’s appropriate for judges

to disfavor corporations?

Response: I do not believe it is ever appropriate for judges to indulge their empathy for

particular groups of persons. A judge must approach every case objectively and

impartially.

 

 

8. Should the courts, rather than the elected branches, ever take the lead in creating a

more just society?

Response: If “creating a more just society” means addressing issues of distributive

justice, I have written that it is solely the prerogative of the elected branches, not the

courts, to take the lead. See Rethinking Constitutional Welfare Rights, 61 Stan. L. Rev.

203 (2008). If “creating a more just society” means protecting the rights and liberties

specified in the Constitution against encroachment by the political branches, I have

written that this is a task appropriate for the courts because of their “independence from

the political branches and public passions of the moment.” Keeping Faith with the

Constitution 24 (2009).

 

 

20. President Obama has stated: “[W]hile adherence to legal precedent and rules of

statutory or constitutional construction will dispose of 95 percent of the cases that

come before a court . . . what matters . . . is those 5 percent of cases that are truly

difficult. In those cases, adherence to precedent and rules of construction and

interpretation will only get you through the 25th mile of the marathon. That last

mile can only be determined on the basis of one’s deepest values, one’s core

concerns, one’s broader perspectives on how the world works, and the depth and

breadth of one’s empathy. In those 5 percent of hard cases . . . . the critical

ingredient is supplied by what is in the judge’s heart.”

a. Do you agree with the President that legal precedent and rules of statutory or

constitutional construction sometimes fail to provide an answer in hard

cases? If so, what percentage of cases do you think constitute “hard cases”?

 

Response: I believe all cases must be decided by applying the law to the facts

from beginning to end.

 

 

b. Assuming for the sake of argument that there is a “hard case” where the law

is indeterminate, what factors and concerns would you, as a judge, consider

in deciding the case?

 

Response: Where the law is indeterminate, I would, if confirmed, faithfully

follow any Supreme Court and circuit precedents that provide guidance on legal

questions related to the one at issue in the specific case or controversy, including

any guidance in such precedents on how to interpret particular constitutional

provisions or statutes.

 

 

3. In answering my previous questions (5)(a)-(c), you stressed that a judge must

have a “genuine understanding of how the law affects the parties to a given

case or controversy.” Is this statement of yours consistent with President

Obama’s statement that, in hard cases, the determinative factors for a judge

are “the basis of [his or her] deepest values, [his or her] core concerns, [his or

her] broader perspectives on how the world works, and the depth and

breadth of [his or her] empathy”?

 

Response: I do not know whether President Obama intended his statement to

encompass the quality of judging identified in my statement above. However, I

did not intend my statement to have anything to do with a judge’s “deepest

values,” “core concerns,” “broader perspectives on how the world works,” or

“depth and breadth of empathy.” My statement referred only to the notion that a

judge must understand how the law affects the parties to a given case in order to

apply the law objectively and impartially. One example I have used to illustrate

the point is Plessy v. Ferguson, where the Supreme Court’s misapprehension of

how segregation laws affected black Americans led to an erroneous reading of the

Fourteenth Amendment. See 163 U.S. 537, 551 (1896) (dismissing the argument

that “the enforced separation of the two races stamps the colored race with a

badge of inferiority” on the ground that “[i]f this be so, it is not by reason of

anything found in the act, but solely because the colored race chooses to put that

construction upon it”); “History Will Be Heard”: An Appraisal of the

Seattle/Louisville Decision, 2 Harv. L. & Pol’y Rev. 53, 60-61 (2008).

---------------------------------

 

questionnaire

 

NPR All Things Considered
Copyright 2009 National Public Radio. All rights reserved.
June 23, 2009

 

Professor GOODWIN LID (Law, University of Cali fomi a, Berkeley): We have felled many trees coming up
with the term, and then President Obama mentions a single word empathy - and the entire debate swirls around
that word.

President BARACK OBAMA: I view that quality of empathy, of understanding and identifying with people's
hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.


SHAPIRO: This is one reason liberals believe they finally have a chance to win this debate. The president is a
Democrat who used to teach constitutional law. Reading here from his own book, he said, interpretations of the
constitution have always changed over time.

Pres. OBAMA: Before the ink on the constitutional parchment was dry, arguments had erupted, not just about
minor provisions, but about first principles. Not just between peripheral figures, but within the revolution's very
core.

 

 

 

May 18, 2009 (Center for Independent Media delivered by Newstex) --

 

After Justice David Souter announced his retirement on May 1, Obama laid out a broad spectrum of qualities he will
seek in his nominee at a press briefing. Among these were a sharp and independent mind, a record of excellence
and integrity, respect for constitutional values and empathy.
Illustration by: Matt Mahurin

Given this range of terms to work with, conservatives quickly settled on empathy as the one around which to draw the
battle lines, and the others faded from the debate. Obama did not utter the word empathy without forethought; he had
used the term two years earlier as a senator in discussing Supreme Court nominations. But since his May 1 statement, he
has had little control over which of the many criteria he put forth receive attention and which get shunted aside.
Conservatives saw a potential political advantage in attacking empathy, and liberals have been unable to reframe the
debate around other terms that may be more to their benefit.

Sen. Orrin Hatch (R-Utah) led the charge against empathy. (Obama] said that ajudge has to be a person of
empathy, Hatch said on ABCs This Week two days after Obamas statement. What does that mean? Usually thats a
code word for an activist judge.

Since then, Republicans have continued to hammer Obama for his empathy criterion. Former George W. Bush senior
adviser Karl Rove called it code for a liberal, activist Supreme Court justice, and John Y00, Bushs head of the Office

 

 

 

Conservative judicial experts believe the empathy argument is a political winner for Republicans, and they have shaped
their talking points accordingly. Gary Marx, executive director of the Judicial Confirmation Network, a conservative
organization that promotes the confirmation of highly qualified individuals to the Supreme Court of the United States,
believes that judicial empathy and adherence to the text of the Constitution are incompatible.


 He said he wants someone who respects the rule of law, and he wants someone with empathy, Marx said o f Obama.
 You cant have it both ways, Barack.


 Conservatives get a little upset when the president uses the word empathy, agreed Brian Darling, the director of D.S.
Senate relations at the Heritage Foundation and a former counsel to two Republican senators. The word empathy
doesn't show up in the Constitution.


While progressives involved in the judicial nomination debate dispute conservatives characterization of code words,
they appear reluctant to offer new language to redirect the discussion, instead reacting with bewilderment and
frustration to conservative attacks.


Goodwin Liu, a Berkeley law professor and the chairman of the board of directors of the American Constitution
Society, a liberal legal organization, expressed surprise at the controversy that empathy, a positive term, has
engendered. I'm a little baffled by that, he said. lf its a code word, I dont know what its a code word for.


On another conservative line of attack" judicial activism " liberal experts countered that this label was itself a code.