Wednesday, May 27, 2009

Legal realism renewal

"Experience," not "change," was the password in the announcement of Court of Appeals Judge Sonia Sotomayor (left) as nominee to be the next Justice of the U.S. Supreme Court.
Both the judge and President Barack Obama focused on the 1st word during yesterday's announcement (video clips below; Obama's remarks here; our colleague Tom Goldstein's superb analysis of the hearings to come here). (photo credit)
No need, really, to talk about the 2d word, change. All knew the media would not be able to resist shoehorning Sotomayor into identity niches -- stressing that if confirmed she'll be the 1st Latina and the 3d woman ever on the Court. (The media are less likely to mention the no-change aspects of her nomination -- she'd become the 9th former federal appeals judge, the 8th Ivy Leaguer, the 7th Eastern Seaboarder, and 6th Roman Catholic on the current Court.)
And so the emphasis is on experience. Experience includes Sotomayor's service on the 2d Circuit since 1998 (prior IntLawGrrls post), on the U.S. District Court in Manhattan from 1992 to 1998. And it also includes her gripping life experience as one who, raised by a widowed mother in a Bronx housing project, went on to a summa career at Princeton and Yale Law and in the public- and private-sector practice of law. Thus Obama invoked a legal axiom:

For as Supreme Court Justice Oliver Wendell Holmes once said, 'The life of the law has not been logic; it has been experience.' Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.
The quoted line comes, of course, from the 3d sentence of Holmes' 1880 Harvard lecture on liability, published as The Common Law a year later. The line distills much of what's come to be called legal realism, the view that judging entails something more than unvarnished adherence to formal law. Holmes' lecture thus proceeded:

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 nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
For decades this reasoning had much currency in American legal circles. Then, in the late 20th century, formalism revived. Prized were judges who professed to apply the law only as it was -- to paraphrase the proclamation of then-nominee John G. Roberts Jr., to put aside Holmesian "prejudices" and call 'em as they saw 'em.
No less than Roberts had in 2005, yesterday Sotomayor pledged allegiance to the rule of law:

I firmly believe in the rule of law as the foundation for all of our basic rights.
No surprise there. Nothing less ought to be expected of a Justice. What was different was this: Sotomayor coupled that pledge with another,

to 'never forget the real-world consequences of my decisions on individuals, businesses and government.'

These confirmation hearings augur a return to a richer understanding of the rule of law.

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