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Elena Kagan: Would she embody empathy as a Supreme Court justice?

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Judge Richard Posner, a Reagan appointee and perhaps the most celebrated mind on the appellate bench, said that neither Roberts nor “any other knowledgeable person” believes that the rules Supreme Court justices apply “are given to them the way rules of baseball are given to umpires.” Obama certainly did not. However, he did grant that “95 percent” of the cases that come before the court could be settled by “basic precepts” that any skilled judge adheres to, including respect for precedent, judicial modesty, and impartiality.

That leaves 5 percent, the “truly difficult” cases where a justice has to resolve some ambiguity in the law and cannot rely on “basic precepts” alone. When confronted with such cases, justices have often looked beyond the law to the lessons of experience.

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.

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