Senate Debate on Empathy
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Jane E. Magnus-Stinson
U.S. District Judge, South. Dist. of Indiana
Nominated: January 20, 2010
ABA Rating: Unanimously Well Qualified
Committee Questionnaire
Hearing Date:
February 11, 2010
Questions For The Record
Reported By Committee:
March 11, 2010
Confirmed By Senate:
20xx-xx-xx
- Committee Questionnaire -
Jane Magnus-Stinson
Responses of Jane E. Magnus-Stinson
Nominee to the U.S. District Court for the Southern District of Indiana
to the Written Questions of Senator Jeff Sessions
8. 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: Yes, in certain respects. Through the work I have done as a federal
magistrate judge facilitating settlement conferences, I have learned the impact of
litigation on plaintiffs and defendants, and used the knowledge gained to help the
parties work toward crafting mutually acceptable resolutions. The success of this
process requires a significant level of understanding of all parties’ points of view.
b. During her confirmation hearing, Justice Sotomayor rejected this 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, I agree with Justice Sotomayor’s statement.
c. What role do you believe empathy should play in a judge’s consideration of a
case?
Response: Unlike the unique role of settlement facilitator described above, in a more
traditional judicial role, the bounds of “empathy” are limited to the role of judge as
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one who “should be patient, dignified, respectful, and courteous to litigants, jurors,
witnesses, lawyers, and others with whom the judge deals in an official capacity” and
who “should accord to every person who has a legal interest in a proceeding, and that
person’s lawyer, the full right to be heard according to law.” Code of Conduct for
United States Judges, Canon 3(A)(3),(4).
d. 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: See above.
ii. Please identify any cases in which you have done so.
Response: See above.
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: In Social Security disability appeals, I often serve by consent of
the parties as the reviewing judge. A petitioner in such a case almost always
suffers from a severe medical impairment, but the case is before me because
an administrative law judge has determined the petitioner is not disabled. The
standard of review is very deferential, and even in cases where another ALJ
(or I) might have found differently, I uphold the ALJ’s decision where
required by law.