Senate Debate on Empathy
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Nancy D. Freudenthal
U.S. District Judge, District of Wyoming
Nominated: December 3, 2009
ABA Rating: Majority Well Qualified, Minority Qualified
Committee Questionnaire
Hearing Date:
January 20, 2010
Questions For The Record
Reported By Committee:
February 11, 2010
Confirmed By Senate: May 5, 2010
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- Committee Questionnaire - Nancy Freudenthal
Responses of Nancy D. Freudenthal
Nominee to the U.S. District Court for the District of Wyoming
to the Written Follow-up Questions of Senator Jeff Sessions
7. 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. 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: I believe I am well qualified for nomination. Not knowing what the
President meant by the quoted statement, I cannot speak to President Obama’s
selection criteria which are his own.
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.
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c. What role do you believe empathy should play in a judge’s consideration of a
case?
Response: Empathy toward a person or a cause should not influence a judge’s
consideration of a case from the perspective of the application of the law to the
facts, as such would be inconsistent with impartiality. I believe empathy only has
a role in judicial temperament. Its presence influences the judge’s treatment of
participants with dignity, courtesy, patience and respect.
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: See response above.
ii. Please identify any cases in which you’ve done so.
Response: I have not done so.
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 ad valorem tax matters, I was sympathetic to the situation of
property taxpayers, particularly elderly taxpayers, who experienced steep
increases in the assessed values of their homes based on the sale and
development of surrounding properties. Notwithstanding my own
subjective sense of empathy toward these taxpayers, I was required to rule
based solely on Wyoming law which generally provides that property tax
assessments for residential properties are based on comparable sales.