Senate Debate on Empathy
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Josephine Staton Tucker
U.S. District Judge, Cen. Dist. of California
Nominated: February 4, 2010
ABA Rating: Unanimously 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 -
Josephine Tucker
Responses of Josephine Staton Tucker
Nominee to the U.S. District Court for the Central District of California
to the Written Questions of Senator Jeff Sessions
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: I believe that, because of my varied work and life experiences, I possess
empathy in that I have the ability to understand a broad range of perspectives.
b. What role do you believe that empathy should play in a judge’s consideration of
a case?
Response: None. I believe that empathy is a character trait that may cause a judge to
be more courteous and respectful in interacting with attorneys, litigants, jurors,
witnesses, and staff. Empathy also may allow a judge to fully understand the facts
presented by all parties. However, if empathy infects the judicial decisionmaking
process, then the judge has failed to meet his or her responsibility of serving as a
neutral, unbiased arbiter. Cases should be decided based solely on an objective
consideration of the facts and an analysis of applicable law, unclouded by a sense of
empathy.
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.
i. If so, under what circumstances?
Response: Please see my previous answer.
ii. Please provide an example of a case in which you have done so.
Response: I have not done so.
iii. Please provide an example of a case in which you had to set aside your own
subjective sense of empathy and rule solely based on the law.
Response: I presided over a case in which an individual lost his home to
foreclosure and brought suit against his lender. While the loss of a home is a
traumatic event, and I felt empathy for his unfortunate circumstances, he did not
have a viable claim under the law, and I dismissed the action.
3. 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: As a district court judge, I would be bound by applicable decisions of
higher courts. Even if I believed that the Ninth Circuit or the Supreme Court had
seriously erred, I would apply established precedent to the facts before me.
4. Do you think it is ever proper for judges to indulge their own values in determining
what the law means?
Response: No.
a. If so, under what circumstances?
Response: Please see my previous answer.
b. Please provide an example of a case in which you have done so.
Response: I have not done so.
c. Please provide an example of a case in which you had to set aside your own
values and rule solely based on the law.
4
Response: I cannot recall a specific case in which I had to set aside my values in
order to rule based solely on the law. However, as a state superior court judge for
over seven years, my decisionmaking record reflects my respect for the law and my
ability to base my rulings solely on the applicable law.
5. Do you think it is ever proper for judges to indulge their own policy preferences in
determining what the law means?
Response: No.
a. If so, under what circumstances?
Response: Please see my previous answer.
b. Please provide an example of a case in which you have done so.
Response: I have not done so.
c. Please provide an example of a case in which you had to set aside your own
policy preferences and rule solely based on the law.
Response: I presided over many marital dissolution cases in which one of the parties
had engaged in conduct during the marriage that caused significant emotional harm to
the other party and to the family unit. While I might prefer that such conduct have
negative financial consequences, California law generally requires an equal
distribution of all property acquired during the marriage, and I scrupulously followed
that law.