Senate Debate on Empathy
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Kimberly J. Mueller
U.S. District Judge, East. Dist. of California
Nominated: March 10, 2010
ABA Rating: Unanimously Well Qualified
Committee Questionnaire
Hearing Date: April 16, 2010
Questions For The Record
Reported By Committee: May 6, 2010
Confirmed By Senate:
 20xx-xx-xx - Committee Questionnaire - Kimberly Mueller

http://judiciary.senate.gov/nominations/111thCongressJudicialNominations/upload/LeonardStark-QFRs.pdf

 

Responses of Kimberly J. Mueller
Nominee to the U.S. District Court for the Eastern District of California
to the Written Questions of Senator Jeff Sessions

 

4. During the 2008 presidential campaign, President Obama 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: Because I have been nominated by President Obama, I have to assume

I satisfy the criteria he is applying in selecting a nominee to fill the current

vacancy for a District Judge in the Eastern District of California.

 

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: I agree with the two sentences attributed to Justice Sotomayor here.
 

c. What role do you believe empathy should play in a judge’s consideration of a

case?
 

Response: I do not believe empathy should play a role in a judge’s determination

of how the law applies to the facts of a case. I do believe a judge must be a good

listener and reader in order to properly ascertain the factual record and fully

comprehend the legal positions of all the parties to a given dispute. The one

setting in which I believe a judge may at times properly display some degree of

empathy is when acting not as a judge of the law, but as a settlement judge.

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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. If so, under what circumstances?
 

Response: Not applicable.
 

ii. Please identify any cases in which you have done so.
 

Response: I have not indulged my own subjective sense of empathy in

determining what the law means in any case.
 

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 every case that comes before me as a judge of the law, I set

aside any personal views or feelings in identifying and then applying the

controlling law to the facts of the dispute I am called to resolve.
 

e. As you know, Justice Stevens recently announced his retirement. The

President said that he will select a Supreme Court nominee with “a keen

understanding of how the law affects the daily lives of the American people.”

Do you believe judges should base their decisions on a desired outcome, or

solely on the law and facts presented?
 

Response: I believe a judge can be aware and communicate an awareness of the

consequences for those affected by a decision. I do not believe such awareness

should ever affect or dictate the outcome in any given decision. Any decision by

a judge should reflect rigorous application of the law to the facts as established by

the record in any given matter submitted for judicial determination.
 

5. Please describe with particularity the process by which these questions were

answered.
 

Response: I received the questions on Friday, April 23rd. I worked on my responses

over the weekend. I consulted briefly with representatives of the Department of

Justice at one point regarding my responses, and then finalized them before

authorizing their transmittal to the Committee.
 

6. Do these answers reflect your true and personal views?
 

Response: Yes.

 

 

 

Responses of Kimberly J. Mueller
Nominee to the U.S. District Court for the Eastern District of California
to the Written Questions of Senator Tom Coburn, M.D.


 

1. Some people refer to the Constitution as a “living” document that is constantly

evolving as society interprets it. Do you agree with this perspective of constitutional

interpretation?
 

Response: I would not use the word “living” to describe the Constitution. I believe its

text is established as written

 

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. If so, under what circumstances?
 

Response: Not applicable.
 

ii. Please identify any cases in which you have done so.
 

Response: I have not indulged my own subjective sense of empathy in

determining what the law means in any case.
 

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 every case that comes before me as a judge of the law, I set

aside any personal views or feelings in identifying and then applying the

controlling law to the facts of the dispute I am called to resolve.
 

e. As you know, Justice Stevens recently announced his retirement. The

President said that he will select a Supreme Court nominee with “a keen

understanding of how the law affects the daily lives of the American people.”

Do you believe judges should base their decisions on a desired outcome, or

solely on the law and facts presented?
 

Response: I believe a judge can be aware and communicate an awareness of the

consequences for those affected by a decision. I do not believe such awareness

should ever affect or dictate the outcome in any given decision. Any decision by

a judge should reflect rigorous application of the law to the facts as established by

the record in any given matter submitted for judicial determination.