Senate Debate on Empathy
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Denzil Price Marshall, Jr.
U.S. District Judge, East. Dist. of Arkansas
Nominated: December 3, 2009
ABA Rating: Unanimously Well Qualified
Committee Questionnaire
Hearing Date:
January 20, 2010
Questions For The Record
Reported By Committee:
February 11, 2010
Confirmed By Senate: May 5, 2010
20xx-xx-xx - Committee
Questionnaire - Denzil Marshall
Responses of Denzil Price Marshall Jr.
Nominee to the U.S. District Court for the Eastern District of Arkansas
To the Written Questions of Senator Jeff Sessions
4. As you may know, President Obama has described the types of judges that he will nominate to the federal bench as follows: "We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges."
a. Without commenting on what President Obama may or may not have meant by this statement, do you believe that you fit President Obama’s criteria for federal judges, as described in his quote?
Response: I believe that empathy---in the sense of being able to put yourself in another person’s shoes---is an admirable personal quality, one that I strive for without complete success.
b. During her confirmation hearing, Justice Sotomayor rejected this so-called "empathy standard" stating, "We apply the law to facts. We don’t apply feelings to facts." Do you agree with Justice Sotomayor?
Response: Yes.
c. What role do you believe empathy should play in a judge’s consideration of a case? Please explain your answer.
Response: As I understand the meaning of empathy, it has no role to play in a judge’s consideration of a case. The judge must impartially apply the governing law to the facts.
d. Do you think that it’s ever proper for judges to indulge their own subjective sense of empathy in determining what the law means?
Response: No.
i. If so, under what circumstances?
Response: None.
ii. Please identify any cases in which you’ve done so.
Response: None insofar as I know.
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iii. If not, please discuss an example of a case where you have had to set aside your own subjective sense of empathy and rule based solely on the law.
Response: The Arkansas Court of Appeals considers many cases in which the trial court has terminated parental rights and the parent has appealed. All these cases are heartrending in one way or another. But my job in them is to put my emotions aside and evaluate the trial court’s decision for reversible error pursuant to the governing statutes and precedent.
Responses of Denzil Price Marshall Jr.
Nominee to the U.S. District Court for the Eastern District of Arkansas
To the Written Questions of Senator Charles E. Grassley