Senate Debate on Empathy
=====================================
James Wynn
U.S. Circuit Judge, Fourth Circuit
Nominated: November 4, 2009
ABA Rating: Unanimously Well Qualified
Committee Questionnaire
Hearing Date:
Dec. 16, 2009
Questions For The Record
Reported By Committee:
Jan. 28, 2010
Confirmed By Senate:
http://judiciary.senate.gov/nominations/111thCongressJudicialNominations/upload/JamesWynn-QFRs.pdf
Responses of James A. Wynn, Jr.
Nominee to the U.S. Court of Appeals for the Fourth Circuit
to the Written Questions of Senator Jeff Sessions
1. In a 2004 law review article entitled, "Judicial Diversity: Where Independence and Accountability Meet," published in the Albany Law Review, you stated:
"The representative function of the judiciary is not limited to fact-finding and case outcomes. Even when a litigant is unsuccessful, a judge’s ability to empathize with his or her diverse perception and circumstance is essential to the litigant’s respect for the court’s adverse action. . . . [J]udges must engage in the diverse and disaffected life stories of these groups."
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. Do you believe that you fit President Obama’s criteria for federal judges, as described in his quote?
Response: I do not know, and cannot comment as to, President Obama’s criteria for selecting federal judges. I assume, because he nominated me, that President Obama believes that my record demonstrates that I am qualified to serve as a federal judge.
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, I agree with her statement.
c. What role do you believe that empathy should play in a judge’s consideration of a case?
Response: Empathy should not play any role in a judge’s applying the law to the facts. The judge’s job is to apply the law to the facts of the particular case in front of him.
d. Do you think that it is proper for judges to consider their own subjective sense of empathy in determining what the law means?
Response: No.
i. If so, under what circumstances?
Response: Not applicable.
ii. Please provide an example of a case in which you have considered your own subjective sense of empathy in determining what the law means.
Response: None. In each case in which I participate, I provide the parties with a neutral and impartial decision. I base my decisions on the law, not empathy.
iii. Please provide an example of a case where you have set aside your own subjective sense of empathy and ruled based solely on the law.
Response: None. In each case in which I participate, I provide the parties with a neutral and impartial decision. Empathy plays no role in that.
e. Do your above-quoted statements reflect your judicial philosophy?
Response: No. The quotes from our article are not statements about judicial philosophy. Rather, they are simply observations about the representative function of judges in a democracy.
f. Do your above-quoted statements reflect your view of the role of a judge? If not, please explain your view of the role of a judge.
Response: No. The role of a judge is to apply the pertinent law to the facts in a neutral and impartial manner. The above-quoted statements are an abbreviated excerpt from our article about the role of diversity in achieving an impartial and representative judiciary. The very next sentence after the above-noted quotations plainly states that "[t]o be sure, the absence of diversity in the judiciary does not necessarily mean that nondiverse judges are unable to adjudicate matters fairly and impartially."