Senate Debate on Empathy


Robert Neil Chatigny
U.S. Circuit Judge, Second Circuit
Nominated: February 24, 2010
ABA Rating: Unanimously Well Qualified
Committee Questionnaire
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?


Response: No.




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 the Ross 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

and evidence.



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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?


Response: No.


e. At your confirmation hearing, you said that your “empathy” remark “referr[ed]

to not 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

United States?


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



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disclosed by the record, and issue a holding no broader than necessary to resolve the

parties’ dispute.



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

empathy” 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.