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
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.
4
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 23
rd. I worked on my responsesover 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.