Obama quoted Oliver Wendell Holmes: "The life of the law has not been logic; it has been experience." In fact, Holmes said that judges don't use the law to come to their decisions, but instead reach a decision and then more or less manipulate the language of a law to explain how they got to that decision.

As Louis Menand put it in his fabulous book "The Metaphysical Club", "Holmes used to invite his fellow justices...to name any legal principle they liked, and he would use it to decide the case under consideration either way."

It's thus extraordinarily significant that Obama relied upon Holmes to define what he was looking for in a justice, and found in Sonia Sotomayor. It seems that for Obama, as it was for Holmes, the law itself is not the determining factor in a given case; rather, in Menand's words, "it is what the judges say is the law" that forms the decision.

And there is more: Holmes relied on the "reasonable man" thesis for determining what a law says. It's the experience of the "reasonable" person that defines a law - like, for example, a judge. And not just individual reasonableness but social - the individual is a product of society, after all.

These factors - collective experience and reasonableness - make predicting the outcome of a case a fool's game if you are relying solely on the language of the law in question. Thus Holmes could rule in favor free speech and economic reform yet also in favor of Jim Crow laws and allow the involuntary sterilization of the mentally incompetent. You don't get experience, after all, without experimenting.

Anyone who's looking for something definite in Obama's choice of Sotomayor is going to be as frustrated as in looking for something definite in Obama himself. He's said repeatedly that people see in him what they want to see. His also-repeated vows of transparency notwithstanding, opacity and unpredictability are going to be two major hallmarks of the Obama reign.

Thanks for the elucidation, especially the last phrase: "...sometimes by making shit up." I think this fits the Holmes philosophy pretty well, and Obama's, too. Experience leads a judge to make shit up and then shoehorn the law to fit the shit - Holmes, Warren, Roberts, Scalia,Thomas, Souter, Sotomayor. I'm wondering if Kennedy might be the most blatant practitioner of this theory.

I'd add a rule #4: Don't look where you're going. Look where you want to go. (It's not always as natural a thing to do at first as you might think, especially in dicey situations - sand, black ice, cars pulling out right in front of you, curves tighter than you thought...)

oh...and rule #5: Never, ever, ever trust a car driver. They're as clueless as cows. Actually this should be #1.

um...rule #6: kickstands sink in soft wet dirt.

rule #7: watch out for giant wild turkeys crossing Highway 1 on blind curves in Marin County on foggy days.

don't ask me how I know all this stuff...

Alito and Thomas both had hard origins, and you'd think that empathy for others would come naturally to them. It probably does, but judging from their Supreme Court records, it looks like they do a very good job of suppressing it. That's shameful in the extreme - Thomas almost seems vengeful for having benefited from affirmative action. Meanwhile, Ginsburg and Breyer are both products of the middle class while Stevens comes from wealth - and all three seem to have a good handle on empathy. I guess allowing empathy to inform your decisions is a liberal trait. But again, to come from poverty, weakness, prejudice, only to grow up to abandon the people and social class that gave you your start is simply egregiously heartless. If Sotomayor retains her empathy and uses it, wields it even, more power to her. Maybe she can shame Thomas and Alito into exploring their consciences.

Alito and Thomas are very empathetic. It just so happens that they empathize 100% of the time with large corporations, polluters, racists, homophobes, and others of that sort. That was the condition by which they were chosen by republican presidents.

Fascinating how you've managed to be facetious and factual at the same time. Which is just more evidence of how insane our political culture has become. Nothing makes sense. Ever.

There must be some term to describe people who, once they've overcome the obstacles of their origins in poverty and powerlessness and become members of the ruling class, rather than exhibit empathy with people still mired in poverty and weakness, instead identify with the powerful, the wealthy, the bigots, the lawless. Cognitive dissonance comes to mind, and maybe that's part of it, but it doesn't seem exact enough. I mean, he's a strict originalist, yet the framers would have considered him to be less than fully human. How does he reconcile this? How can he deny his empathy with the weak and reserve it only for the strong?

Mental illness?

Does NPR by any chance note its own full-fledged participation in shouting into said echo chamber?

I stopped listening to NPR years ago for precisely that reason.