Senate Debate on Empathy
Robert Neil Chatigny
U.S. Circuit Judge, Second Circuit
Nominated: February 24, 2010
ABA Rating: Unanimously Well Qualified
Hearing Date: April 28, 2010
Questions For The Record
Reported By Committee:
Confirmed By Senate:
Responses of Robert N. Chatigny
Nominee to be U.S. Circuit Judge for the Second Circuit
to the Written Questions of Senator Grassley
1. At the hearing, Senator Coburn asked you about your speech at the Inaugural
meeting of the American Constitution Society at the University of Connecticut
School of Law, where you criticized mandatory minimums because “Empathy for
individuals involved in a case inevitability comes into play, as it should.” I would
like to get a little
more information on this speech.
a. Could you please elaborate on what you meant by this statement on empathy?
Response: When I used the term “empathy” in my speech, I meant respectful
attention to, and careful consideration of, the legitimate interests of all concerned. I
did not mean sympathy.
b. Does empathy play a role in your decision-making process? Could you please
explain how empathy factors into your decision making process?
Response: No. Empathy plays no role in determining the applicable law, finding the
relevant facts, or applying the law to the facts to reach a decision.
2. During the 2008 presidential campaign, President Obama described the kind of
judge that he would 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 the President’s criteria for federal
judges, as described in this quote?
Response: I do not know what the President meant by his statement. As I use the
term “empathy,” it refers to paying respectful attention to, and carefully considering,
the positions of all people who come before the court.
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 that a judge must put aside all personal feelings and impartially
apply the law to the facts.
c. Do you believe that it is ever appropriate for judges to indulge their own
subjective sense of empathy in determining what the Constitution and the laws
mean? If so, under what circumstances?
d. Do you believe that it is ever appropriate for judges to indulge their empathy for
particular groups or certain people? For example, do you believe that it is
appropriate for judges to favor those who are poor? Do you believe that it is
appropriate for judges to disfavor corporations?
Response: No. The judicial oath requires every judge to “administer justice without
respect to persons,” “do equal right to the poor and to the rich,” and “impartially
discharge and perform” “all the duties” of the judicial office. 28 U.S.C. § 453.
e. After Justice Stevens announced his retirement, President Obama stated that he
would select a Supreme Court nominee with “a keen understanding of how the
law affects the daily lives of the American people.” Do you believe that judges
should base their decisions on a desired outcome?
Response: No. A judge’s responsibility is to decide a case by impartially applying
governing law to legally relevant facts determined through sound procedure.
3. Following theRoss case, a news article reported that the “standard” you seemed to
“cite most frequently” is “the Golden Rule.” The article stated that “in dealing with
a criminal defendant from the margins of society, Chatigny will frequently discuss
explicitly how he would want to be treated if he were in the defendant’s
circumstances.” Your Golden Rule standard sounds very much like “empathy” to
me and also very similar to Justice Sotomayor’s assertion that “personal
experiences affect the facts that judges choose to see.” This empathy standard is at
odds with the proper role of a judge because we expect a judge to be a neutral
arbiter, and not to sympathize with one party over another. In fact, in that same
article, a lawyer said that you “shape the issues more than the advocates” and
“follow a ‘managerial’ model of judging rather than the ‘referee or umpire
model.’” Given your statements and other attorneys’ statements about your
courtroom manner, why shouldn’t I be concerned that you will permit your
empathy for certain litigants to affect your decisions, rather than ruling simply on
the law and facts?
Response: Based on my overall record as a district judge for more than 15 years, my
reputation among my colleagues on the federal and state bench, and my reputation among
the Bar as a whole, I respectfully submit there is no cause for concern in this regard.
4. What, in your view, is the role of a judge? Please describe your judicial philosophy.
Response: Article III, section 2 of the Constitution extends the “judicial power” to
“cases” and “controversies.” These words restrict the role of the judiciary to deciding
questions presented in an adversary context and in a form historically deemed
appropriate for judicial resolution. They also serve to define the role of the judiciary in a
manner intended to ensure that the judiciary will not intrude into areas committed to the
executive and legislative branches of government. When a case is properly brought
before a federal court for adjudication, the role of the judge is to put aside any
preconceptions and decide the issues in the case in accordance with the applicable law
-------------------- 5 -----------------------------------------
a. Please explain how you understand “our common law tradition” to influence
your responsibilities when sentencing a defendant.
Response: My sentencing decisions are based on applicable statutes and guidelines.
Any policy views I have expressed on the subject of mandatory minimum sentences
have not affected my sentencing decisions.
b. Do you still believe that minimum sentences are “dehumanizing”? Will you, if
confirmed, have any reservations in enforcing mandatory minimum sentences
set by Congress?
Response: The sentencing process can be machinelike when a mandatory minimum
sentence is imposed. I recognize, however, that mandatory minimum sentences are
valid and have no reservations about enforcing the law set by Congress.
c. How does the responsibility of “explain[ing] the sentence to the defendant”
affect your calculation of the defendant’s sentence?
Response: It does not affect the calculation of the sentence.
d. Have you ever reduced the sentences of defendants to make the process of
explaining their sentence to them less intense or difficult?
e. At your confirmation hearing, you said that your “empathy” remark “referr[ed]
tonot just the defendant, but also the victims, as well as witnesses . . . .” How
does your empathy for defendants influence your handling of criminal
proceedings and sentencings? Please give an example of a case in which your
empathy for a defendant, victim, or witness affected your ruling(s) in the case.
Response: Empathy does not influence my sentencing decisions.
5. You also stated in your 2003 American Constitution Society speech that “[u]nder
the Constitution, a judge can’t be impeached for judicial acts.”
a. Do you think that Congress can impeach a judge if he or she rules in unlawful
ways or consistently defies the will of Congress as expressed in the laws of the
Response: A lawless act by a judge deliberately undertaken to defy the will of
Congress would not be a “judicial act” as I used the phrase in my speech.
b. In your opinion, are the judicial acts of a judge never relevant to a
determination of their “good Behavior”? U.S. Const., art. 3, sec. 1.
7. President Obama has stated: “[W]hile adherence to legal precedent and rules of
statutory or constitutional construction will dispose of 95 percent of the cases that
come before a court . . . what matters . . . is those 5 percent of cases that are truly
difficult. In those cases, adherence to precedent and rules of construction and
interpretation will only get you through the 25th mile of the marathon. That last
mile can only be determined on the basis of one’s deepest values, one’s core
concerns, one’s broader perspectives on how the world works, and the depth and
breadth of one’s empathy. In those 5 percent of hard cases . . . . the critical
ingredient is supplied by what is in the judge’s heart.”
a. Do you agree with the President that legal precedent and rules of statutory or
constitutional construction sometimes fail to provide an answer in hard cases?
If so, what percentage of cases do you think constitute “hard cases”?
Response: I agree that federal courts are sometimes called upon to decide difficult
cases. In these instances, judges must be particularly careful to ensure that the case is
decided in accordance with the law and evidence.
b. Assuming for the sake of argument that there is a “hard case” where the law is
indeterminate, what factors and concerns would you, as a judge, consider in
deciding the case?
Response: If presented with such a case, I would bear in mind that my duty to decide
the case should be discharged with due regard to the limits on my role in a federal
system of separated powers and with appropriate sensitivity and deference to the
responsibilities and prerogatives of the legislative and executive branches of
government. As in any case, I would pay close attention to the presentations of the
parties, study the applicable legal authorities, focus on the legally relevant facts
disclosed by the record, and issue a holding no broader than necessary to resolve the
c. In your 2003 speech to the American Constitution Society chapter at the
University of Connecticut School of Law, you said that, in sentencing a
defendant, “‘[e]mpathy’ for individuals involved in [a] case inevitably comes
into play, as it should.” How do you distinguish your appeal to judicial
from that of President Obama?
Response: As a judge, I associate empathy with a desire and ability to approach each
case with an open mind free of preconceptions, provide all people who come before
the court with a respectful hearing for the purpose of understanding their positions,
and render an unbiased decision reflecting impartial application of the law.