Senate Debate on Empathy
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Audrey G. Fleissig
U.S. District Judge, East. Dist. of Missouri
Nominated: January 20, 2010
ABA Rating: Unanimously Well Qualified
Committee Questionnaire
Hearing Date: February 11, 2010
Questions For The Record
Reported By Committee: March 4, 2010
Confirmed By Senate:
 20xx-xx-xx - Committee Questionnaire - Audrey Fleissig

http://judiciary.senate.gov/nominations/111thCongressJudicialNominations/upload/AudreyFleissig-QFRs.pdf

Responses of Audrey Goldstein Fleissig
Nominee to the U.S. District Court for the Eastern District of Missouri
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. While I understand that you cannot know 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: I believe I am a person who has empathy, or sensitivity to the feelings and experiences of others. However, my sensitivity to the situation and experiences of others does not interfere with my obligation to determine cases in a fair and impartial manner, and I believe that my record as a United States Magistrate Judge reflects that impartiality and allegiance to the rule of law.

b. What role do you believe that empathy should play in a judge’s consideration of a case?

Response: I believe that a judge must set aside any sense of empathy in interpreting the law. A sense of empathy nonetheless can and should perform an important role in performing judicial functions. For example, a sense of empathy may assist a judge in understanding the arguments that a party is attempting to make, especially when dealing with unrepresented parties who are not skilled in expressing legal concepts. Maintaining a sense of empathy also reminds a judge that treating all persons associated with the court process with dignity and respect -- be they attorneys, litigants, criminal defendants, or jurors -- is critical to maintaining the integrity of our judicial system. Thus, a judge should display empathy in the manner in which he or she deals with those who come before or perform a function of the court, but must set aside any such empathy in rendering a decision.

c. 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: Not applicable.

ii. Please identify any cases in which you have done so.

Response: None.

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 must often set aside my own sense of empathy. For example, I have at times had sympathy for a social security claimant, but have nonetheless upheld the decision denying benefits because the law and case precedent required that I uphold the Commissioner’s decision.