"Personal experiences affect the facts that judges choose to see."
That's what Supreme Court nominee and federal court judge Sonia Sotomayor has said in the past about how individual experience comes into play when deciding cases and looking at the law.
Many conservatives are afraid of that approach and are going to try to convince America that no judge should be appointed to the Supreme Court who doesn't decide cases merely by applying the law to the facts of a case in a vacuum.
But which facts? How do we know which ones are the important ones in any case? The right ones? The ones that will sway a case from one outcome to another? As someone who practiced law for about 15 years, I know that sometimes those questions are easier than others.
You can't decide a case without looking at all the facts, even the ones that don't seem important at first blush. I learned that the hard way as a young lawyer. That's where digging a little deeper and calling on the things we've learned in life help us out as lawyers in a way that all those law school classes don't.
At the risk of being called too flip in this analogy, I'd like to invoke my favorite movie lawyer Elle Woods from Legally Blonde. (If you're short on time, pick up the video at about 4:30).
As a recovering litigator, I love a good cross-examination! I'm not talking about the unlikely witness stand confession -- Elle's personal expertise that the rules of hair care are are simple and finite are what turned the tide in that case. Without knowing those facts, she would not have been able to
I know this was just a movie, but the example happens in real life cases every day -- lawyers and judges find ways to apply the things they've learned in their own lives -- to sift through facts to figure out what's relevant and what isn't. Sometimes that's easy and sometimes it takes something more than an Ivy League law degree and years on the bench to put the pieces together to see the whole picture.
Does anyone really doubt that the outcome of the Lilly Ledbetter case would have been different if the majority of Supreme Court justices had faced the kind of discrimination Ledbetter or their colleague Justice Ruth Bader Ginsburg had? Ginsburg, as is evident from her dissent, saw the facts of the discrimination a lot differently than her male counterparts.
Facts are never just black and white. They look a lot different depending on the lens through which they are viewed. For some men, there's no relevance to how women have been treated differently than men by companies who find loopholes in existing laws. But to a woman who has lived or observed that experience, there's a very real and significant difference.
When the GOP goes on the attack on Sotomayor's nomination, as they surely will, and try to frame her as an activist judge or someone who can't focus just on the facts and the law, keep reminding yourself about Elle Woods.
If she hadn't been a Cosmo girl, her client would have ended up in jail for life for a murder she didn't commit. I'm not saying that we should ask if Sonia Sotomayor was ever a Cosmo girl, but sometimes there are important things our life experiences teach us that get us to the right outcome. That's not activism. That's real life.
Joanne Bamberger is the founder and editor-in-chief of the political blog, PunditMom. She is also a Contributing Editor at BlogHer. She is a political and social media analyst whose commentary has appeared on CNN, Fox News, BBC Radio, Al Jazeera English and more.