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
http://judiciary.senate.gov/nominations/111thCongressJudicialNominations/upload/ThomasVanaskie-QFRs.pdf
Responses of Thomas I. Vanaskie
Nominee to the U.S. Court of Appeals for the Third Circuit
to the Written Questions of Senator Jeff Sessions
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, what is your opinion with respect to President Obama’s criteria
for federal judges, as described in his quote?
Response: I believe that it is important to appoint impartial, competent, and
fair judges, and that qualified nominees should be drawn from all cultural and
socio-economic backgrounds.
b. In your opinion, do you fit President Obama’s criteria for federal judges,
as described in the quote?
Response: Neither of my parents completed high school. My father was a
bricklayer, and my mother was a factory worker. They raised seven children under
tough economic circumstances. I do not know whether those circumstances played
any role in my selection.
c. During her confirmation hearings, Justice Sotomayor rejected President
Obama’s 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.
d. What role do you believe that empathy should play in a judge’s consideration of a case?
Response: I believe that empathy should not play a role in judicial decisions.
e. Do you think that it’s 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:
ii. Please identify any cases in which you’ve done so.
Response:
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: I sentenced a defendant to a mandatory minimum prison term after he refused to provide information that would have directly implicated his brother, even though he had provided substantial assistance that resulted in the prosecution of others, who were able to implicate his brother directly. I was bound to impose the mandatory prison term because the government did not file a motion for a departure under the appropriate statute.
4. What in your view is the role of a judge?
Response: The role of a judge is to be an impartial adjudicator who provides a full and fair opportunity for the litigants to be heard, and then decides the case based on the facts and the law with a clearly reasoned explanation of the decision rooted in the text of the law, logic, and precedent.
5. Do you think it is ever proper for judges to indulge their own values in determining what the law means?
Response: No.
a. If so, under what circumstances?
Response:
b. Please identify any cases in which you have done so.
Response:
c. If not, please discuss an example of a case where you have had to set aside your own values and rule based solely on the law.
Response: I cannot cite such a case because personal values are not part of my decision making process.
6. Do you think it is ever proper for judges to indulge their own policy preferences in determining what the law means?
Response: No.
a. If so, under what circumstances?
Response:
b. Please identify any cases in which you have done so.
Response:
c. If not, please discuss an example of a case where you have had to set aside your own policy preferences and rule based solely on the law.
Response: Prior to Booker and Kimbrough, I routinely sentenced defendants charged with crack cocaine offenses within the guidelines imprisonment range determined on the basis of a ratio of 1 gram of crack cocaine to 100 grams of powder cocaine, even though my policy preference would have been to abandon that particular ratio as recommended by the United States Sentencing Commission in several studies.