Senate Debate on Empathy
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Joseph A. Greenaway
U.S. Circuit Judge, Third Circuit
Nominated: June 19, 2009
ABA Rating: Unanimously Well Qualified
Committee Questionnaire
Hearing Date:
September 9, 2009
Questions For The Record
Reported By Committee:
Oct. 1, 2009
20xx-xx-xx
- Committee Questionnaire - Joseph A. Greenaway
Responses of Joseph A. Greenaway, Jr.
Nominee to the U.S. Court of Appeals for the Third Circuit
to the Written Questions of Senator Jeff Sessions
4. At your hearing, I asked for your views on President Obama’s statement regarding the types of judges that he will nominate to the federal bench: "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." You answered:
"I’m not in the President’s position with regard to what makes a good judge. The only thing I can tell you is that in my years of experience I’ve tried to be fair to folks. I’ve tried to treat them with the utmost respect and to . . . address their cases as best I could, applying the facts to the law."
I appreciate your answer and have a few more questions with regard to President Obama’s statement.
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a. Do you agree with President Obama’s quote?
Response: I view President Obama’s quote as alluding to a desire to populate the bench with judges from diverse backgrounds and experiences. I agree with such a sentiment. All Americans benefit from seeing and experiencing the unbiased administration of law and justice by individuals of different religious, socioeconomic, ethnic, gender, and racial backgrounds. I do not interpret the President’s quote to mean that heart and empathy are express values or qualities to be employed by judges in their judicial decision-making.
b. Do you believe that you fit President Obama’s criteria for federal judges, as described in his quote?
Response: As I have interpreted President Obama’s quote, I believe I do. I am an immigrant. I came to this country at 2 years of age with my parents and my then-infant sister. We immigrated to become Americans. We have embraced the American dream. Our family worked hard. We earned degrees from excellent schools and we are productive contributors to society. We are proud to be African-Americans.
Our family’s story is not unique; indeed, it exemplifies the American dream. To the extent that the President seeks to appoint to the federal bench, among others, those who appreciate coming from modest means, who understand struggle, and who know the plight of those less fortunate, I believe I fall into that category.
c. What role do you believe that empathy should play in a judge’s consideration of a case?
Response: Empathy cannot play a role in a judge’s consideration of a case or in determining what the law means. I have told lawyers who appear before me that as a human being, I may have empathy for their client, but as a judge I have none because that is not my job. The pure exercise of empathy in decision-making would lead to unsound and inconsistent decisions.
d. Do you think that it is ever proper for judges to indulge their own subjective sense of empathy in determining what the law means?
Response: No, I do not believe that my own subjective sense of empathy may be used in determining what the law means.
i. If so, under what circumstances?
Response: See above.
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ii. Please identify any cases in which you have done so.
Response: I have not employed this manner of decision-making in any of my cases.
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: In addition to my response to 2.c. above, I, like most judges, have experienced at some point in time a sense of empathy at sentencing. There are times that a victim, the victim’s family, a defendant, the defendant’s family, or the facts of the case induce a sense of empathy. Of course, when a sentence of incarceration is meted out, there is no room for a subjective sense of empathy. The sentencing guidelines, albeit advisory, do not permit the unfettered exercise of discretion based on a subjective sense of empathy. I have not, and would not, use this paradigm as a basis for my decision-making. My job requires me to rule dispassionatel