Senate Debate on Empathy
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O. Rogeriee Thompson
U.S. Circuit Judge, First Circuit
Nominated: October 6, 2009
ABA Rating: Majority Qualified, Minority Not Qualified
Committee Questionnaire
Hearing Date:
December 1, 2009
Questions For The Record
Reported By Committee:
Jan. 21, 2010
Confirmed By Senate: March 17, 2010
20xx-xx-xx
- Committee Questionnaire - Rogeriee Thompson
3. 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: It is impossible for me to answer this question without commenting upon what I believe the President may have meant by his statement since such are his criteria. By nominating me I can only assume the President has determined I meet his criteria for Federal Circuit Court Judges.
b. What role do you believe that empathy should play in a judge’s consideration of a case?
Response: The Merriam-Webster Pocket Dictionary defines empathy as "capacity for participating in the feelings or ideas of another." Using that definition, empathy, or expressing it more euphemistically, ‘getting into another’s head’ has assisted me in assessing the credibility of witnesses and has enabled me on many occasions to flesh out bias, motive, and intent of witnesses who appear before the court in civil and criminal matters.
c. Do you think that it is proper for judges to consider their own subjective sense of empathy in determining what the law means?
Response: No.
i. If so, please explain under what circumstances such a consideration would be proper.
Response: See above response.
ii. Please discuss any cases in which you have considered your own subjective sense of empathy in determining what the law means.
Response: None.
iii. 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: All of my judicial rulings are based solely on the law. However I can give you an example of a situation where I feel empathy, but nonetheless base my decision upon the applicable law. I often hear cases on appeal from the district court involving landlord/tenant disputes. I sometimes have empathy for residential tenants who cannot pay rent due to unexpected loss of employment. Likewise, I may empathize with struggling landlords who are dependent upon rental income to make their monthly mortgage payments on the property. It is a lose/lose proposition for each litigant but my job as a judge is to make a decision based solely on Rhode Island’s Residential Housing law. That is what I do.