Senate Debate on Empathy
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Elizabeth Erny Foote
U.S. District Judge, West. Dist. of Louisiana
Nominated: February 4, 2010
ABA Rating: Substantial Majority Qualified, Minority Well
Qualified
Committee Questionnaire
Hearing Date:
February 24, 2010
Questions For The Record
Reported By Committee:
March 18, 2010
Confirmed By Senate:
20xx-xx-xx
- Committee Questionnaire -
Elizabeth Foote
2.
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. I recognize that you do not know 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: If what the President meant was that a good judge makes decisions not based on emotion but treats all individuals equally – with fairness, respect, and dignity – then I hope I will meet those criteria if confirmed.
b. What role do you believe that empathy should play in a judge’s consideration of a case?
Response: I agree with your (Senator Sessions’) statement, "Empathy is not a legal standard." Empathy instead is a tool which assists a judge to treat all individuals in the system with respect, dignity, and fairness.
c. 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.
2
i. If so, under what circumstances?
Response: See above
3. What in your view is the role of a judge?
Response: A judge is a neutral arbiter whose limited job is to decide the dispute before him or her in a fair and impartial manner; to treat the litigants and attorneys with respect and dignity; and to make timely, well-reasoned decisions based on the facts, applicable statutory law, and controlling precedent.
4. What is your definition of "judicial activism?"
Response: The term "judicial activism" as I understand it describes the practice of a judge who ignores clear statutory law and controlling precedent in order to obtain a predetermined result or to promote a personal agenda.
5. Supreme Court precedents are binding on all lower federal courts and Circuit Court precedents are binding on the district courts within the particular circuit.
a. Are you committed to following the precedents of higher courts faithfully and giving them full force and effect, even if you personally disagree with such precedents?
Response: Yes.
b. How would you rule if you believed the Supreme Court or the Court of Appeals had seriously erred in rendering a decision? Would you nevertheless apply that decision to the facts presented before you?
Response: In such a case, I would apply the controlling precedent of the United States Supreme Court and the Fifth Circuit Court of Appeals to the facts before me.
6. Do you think it is ever proper for judges to indulge their own values in determining what the law means? If so, under what circumstances?
Response: No.
7. Do you think it is ever proper for judges to indulge their own policy preferences in determining what the law means? If so, under what circumstances?
Response: No.