Senate Debate on Empathy
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Goodwin Liu


http://judiciary.senate.gov/nominations/111thCongressJudicialNominations/upload/GoodwinLiu-QFRs.pdf
Goodwin Liu
U.S. Circuit Judge, Ninth Circuit
Nominated: February 24, 2010
ABA Rating: Unanimously Well Qualified
Committee Questionnaire, Supplements
Hearing Date: April 16, 2010
Questions For The Record
Reported By Committee: May 13, 2010
Confirmed By Senate:

“Empathy – that’s the phrase I expressed concern with President Obama, because empathy is a nonlegal thing, it suggests bias,” Sessions said, adding that Liu’s “writings are pretty far out there and they represent about as far as you can go intellectually to expand judicial power and that makes me nervous.”

http://www.c-spanarchives.org/program/292014-1&start=5129

 

5. Do you believe that it is ever appropriate for judges to indulge their own values
and/or policy preferences in determining what the Constitution and the laws mean?
If so, under what circumstances?

Response: I do not believe it is ever appropriate for judges to indulge their own values or
policy preferences in determining what the Constitution and the laws mean.


6. 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: To the extent that empathy means an ability to understand a claim from
another person’s point of view, I think it can help a judge to appreciate the arguments on
all sides of a case and to ensure that the litigants’ claims have been fully heard.
However, to the extent that empathy causes a judge to be biased or prejudiced or to
identify with a particular litigant or outcome, it is inappropriate and must have no role in
judicial determinations of what the Constitution and the laws mean.



7. Do you believe that it is ever appropriate for judges to indulge their empathy for
particular groups of persons? For example, do you believe that it’s appropriate for
judges to favor those who are poor? Do you believe that it’s appropriate for judges
to disfavor corporations?

Response: I do not believe it is ever appropriate for judges to indulge their empathy for
particular groups of persons. A judge must approach every case objectively and
impartially.

 

20. 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 believe all cases must be decided by applying the law to the facts
from beginning to end.

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: Where the law is indeterminate, I would, if confirmed, faithfully
follow any Supreme Court and circuit precedents that provide guidance on legal
questions related to the one at issue in the specific case or controversy, including
any guidance in such precedents on how to interpret particular constitutional
provisions or statutes.

 

 

3. In answering my previous questions (5)(a)-(c), you stressed that a judge must

have a “genuine understanding of how the law affects the parties to a given

case or controversy.” Is this statement of yours consistent with President

Obama’s statement that, in hard cases, the determinative factors for a judge

are “the basis of [his or her] deepest values, [his or her] core concerns, [his or

her] broader perspectives on how the world works, and the depth and

breadth of [his or her] empathy”?

 

Response: I do not know whether President Obama intended his statement to

encompass the quality of judging identified in my statement above. However, I

did not intend my statement to have anything to do with a judge’s “deepest

values,” “core concerns,” “broader perspectives on how the world works,” or

“depth and breadth of empathy.” My statement referred only to the notion that a

judge must understand how the law affects the parties to a given case in order to

apply the law objectively and impartially. One example I have used to illustrate

the point is Plessy v. Ferguson, where the Supreme Court’s misapprehension of

how segregation laws affected black Americans led to an erroneous reading of the

Fourteenth Amendment. See 163 U.S. 537, 551 (1896) (dismissing the argument

that “the enforced separation of the two races stamps the colored race with a

badge of inferiority” on the ground that “[i]f this be so, it is not by reason of

anything found in the act, but solely because the colored race chooses to put that

construction upon it”); “History Will Be Heard”: An Appraisal of the

Seattle/Louisville Decision, 2 Harv. L. & Pol’y Rev. 53, 60-61 (2008).