More germane to the Sotomayor debate, Leuchtenburg observes, "if someone says that a judge's background has no pertinence to how decisions are reached, that's palpably nonsense."
Certainly Holmes' background showed. His upbringing as the son of an eminent Boston physician, his Harvard education and experience as a commercial lawyer arguably blinded him to the humanity of those whose lives fell outside the scope of his experience.
What he missed in his eagerness to keep Carrie Buck from procreating was the shallowness of the state's judgment of her. There was no evidence of her or her mother's "feeble-mindedness" -- just of an irregular lifestyle that elicited "the contempt of the well-off and well-bred," as one of her champions wrote.
A lawyer who met her later found her reading a newspaper and helping a friend with a crossword puzzle. As for her child, who was seven months old when a social worker condemned her for having a "look . . . that is not quite normal," she maintained adequate grades in school but died at age 8.
We can't condemn Holmes alone for the travesty of Buck vs. Bell. It was an 8-1 opinion, with two of the court's outstanding liberals, Louis D. Brandeis and Harlan F. Stone, acquiescing in silence. Conservative Justice Pierce Butler issued the lone unwritten dissent.
We can, however, take it as a lesson in how time and diversity can transform even an institution as precedent-driven as the Supreme Court. It's impossible to say how Sonia Sotomayor's personal history, much less her "empathy," will play out on the court, assuming she's confirmed. At Berkeley, she didn't predict that a Latina justice would steer the court in any particular direction. And no matter where they stand on the political spectrum, justices have a way of confounding the expectations of their presidential sponsors.
But to deny that the character and experience of judges helps to make law is foolish. Virginia sterilized more than 7,500 men and women before ceasing the practice in 1979 -- second only to California, where 20,000 operations were performed. Nationwide, the toll was 60,000. How many would have been saved, one wonders, had the court showed a little "empathy"?
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Michael Hiltzik's column appears Mondays and Thursdays. Write him at michael.hiltzik@latimes.com, read his previous columns at www.latimes.com/hiltzik, and follow @latimeshiltzik on Twitter.
