Senate Debate on Empathy
=====================================

 

Gerard Lynch
U.S. Court of Appeals, Second Circuit
Nominated: April 2, 2009
ABA Rating: Unanimously Well Qualified
Committee Questionnaire
Hearing Date: May 12, 2009
Questions For The Record
Reported By Committee: June 11, 2009
Confirmed By Senate: Sept. 17, 2009
 20xx-xx-xx - Committee Questionnaire - Gerard Lynch

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

 

 

 

Responses of Gerard E. Lynch
Nominee to the U.S. Court of Appeals for the Second Circuit
to the Written Questions of Senator Jeff Sessions
 

 

1. During your courtesy visit to my office on May 11, 2009, I asked you how your

sentencing departures compared to other district court judges in the Second Circuit.

You said that based on a recent report, your departure rate was average in comparison.

I am encouraged by this, and I am interested to see a copy of the report that you

referenced. Please include a copy of the report with your answers to Questions for the

Record.

 

Response: The report is attached. (The markings were made when I received the report; it is

the only copy I have.) As the table shows, my rate of non-Government-sponsored (i.e., noncooperator)

departures was 27.7%. The rate for the district as a whole was 28.6%.

 

2. 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. What role, if any, do you believe that empathy should play in a judge’s

consideration of a case?

 

Response: As I understand the word, “empathy” means the ability to understand

another person’s state of mind or emotion, despite not having had the same

experiences as that person. I believe that it is important for judges to make every

effort to understand the experiences and arguments of all litigants who appear before

them – defendants, crime victims and police officers; employers and employees; the

rich and the poor – lest they find themselves limited by their own experiences and

opinions.

 

b. Do you believe that a judge should be empathetic to a criminal defendant? What

about a victim? Is it appropriate for a judge to identify with either party?

 

Response: I believe that judges should do their best to understand the positions of all

parties, the better to apply the law impartially. A judge should not identify with

either side.

 

c. Do you believe that empathy should play a part in sentencing?

Response: A judge should attempt to understand the experience and history of both

defendants and crime victims, in order to apply fairly and impartially the

considerations mandated by 18 U.S.C. 3553(a), which encompass the impact of the

crime on the victim and the history and circumstances of the defendant.

 

d. Did empathy play a role in your decision in United States v. Pabon-Cruz to give

a jury instruction that would have invited jury nullification of what was believed

at the time to be a ten-year mandatory minimum sentence?

 

Response: I don’t think that “empathy” was a factor. The rationale for this decision

– which I fully accept, in light of the ruling of the Second Circuit, was erroneous –

was that unlike most cases, in which the jury fully understands the seriousness of the

crime charged, in that case the jury may have misperceived the relative seriousness of

the two overlapping charges in the case.

 

 

 

 

 

=====================================================

 

Responses of Gerard E. Lynch
Nominee to the U.S. Court of Appeals for the Second Circuit
to the Written Questions of Senator Tom Coburn

 

4. President Obama has described the types of judges that he will select 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. What role do you believe that empathy should play in a judge’s consideration of

a case?

 

Response: As I understand the word, “empathy” means the ability to understand

another’s state of mind and emotion. I believe that it is important for judges to make

every effort to understand the experiences and arguments of all litigants who appear

before them – defendants, crime victims and police officers; employers and

employees; the rich and the poor – lest they find themselves limited by their own

experiences and opinions.

 

b. Do you believe you fit President Obama’s criteria?

Response: Yes.

 

5. As a judge, you are charged with applying the law as it is written — removing personal

opinion and bias from your work.

 

a. In your experience, is it possible to divorce your personal opinion from

your work as a judge?

 

Response: Yes. That is a judge’s job.

 

b. What measures have you implemented in your chambers to help you

honor this duty?

 

Response: In my chambers, I attempt to understand the arguments of the

parties, to research the law, and then to apply the law impartially to the case at

hand.

 

 

3