Judge Sotemayor's statements about experience leading to better legal decisions follows the great American legal tradition led by Justice Oliver Wendell Holmes. Democrats should join Judge Sotemayor explaining to the public the importance of experience in shaping the law. We should affirm, not run from, this great American legal tradition.
Judge Sotemayor is being criticized for stating that experience, including the experience of the judges involved in a case, can lead to "better" judicial decisions. In her statements, she is following the lead of the great Supreme Court Justice Oliver Wendell Holmes. In his book, The Common Law, one of the historic classics of American jurisprudence, Holmes famously wrote:
"The life of lhe law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of
public policy, avowed or unconscious, even the prejudices which judges share
with their fellow men, have had a good deal more to do than the syllogism in
determining the rules by which men should be governed. The law embodies
the story of a nalion's development through centuries, and it cannot be dealt
with as if it contained only the axioms and corollaries of a book of
mathematics. . . . We must alternately consult history and theories of
legislation. But the most difficult labor will be to understand the combination
of the two into new products at every stage."
That the experiences of the judges play a part in judicial decisions is both a legal and a psychological a truism. Judge Sotemayor's critics are either ignorant of the proper operation of the courts, or hypocritical. A court composed of white men who have spent their careers representing Fortune 500 corporations is likely to render different decisions than one, equally qualified in the law, composed of a mix of men and women, of various ethnicities and a wide variety of life experiences. For the vast majority of citizens, the second group of judges, will also render "better" decisions.
This is a truth Democrats should join Judge Sotemayor in proudly affirming.