Obama himself has approvingly cited Oliver Wendell Holmes’s famous dictum, “The life of the law has not been logic; it has been experience.” What Holmes meant is that, from the vantage point of history, the development of the law is not a matter of some mathematical theorem slowly and inexorably yielding its logical conclusion. Rather, it is the fitful work of human hands, of the men and women who create and interpret the law struggling to adjust it to the evolving imperatives of everyday life.
This is not pretty work.
It certainly lacks the elegance and analytical certainty of a mathematical proof, so it is not surprising that many people regard experience as too vague and unreliable to be of proper use to a judge. Yet justices like James Wilson, Benjamin Cardozo, and Sandra Day O’Connor, in addition to Holmes, have all pointed to experience as providing the kind of wisdom a judge must rely upon in cases where the written law falls short.
In fact, Justice O’Connor has gone so far as to express her belief that “At the end of the day, a wise old man and a wise old woman reach the same judgment.”
The key word here is “old,” for it highlights O’Connor’s faith in the experience that comes with age, and the wisdom it provides for.
Obama puts his faith in the type of experience that comes from empathizing with others, particularly those whose lives are different from our own. Empathy, as the president defines it, is not simply “a call to sympathy or charity,” it is “something more demanding, a call to stand in somebody else’s shoes and see through their eyes.”
