Senate Debate on Empathy
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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
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- 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.
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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 appearbefore 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.
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