Sotomayor and Sessions vs. "legal realism"

Has anyone, during the Sotomayor confirmation hearings, quoted the sainted Justice Oliver Wendell Holmes on the subject of whether law is simply a matter of applying rules and adhering to precedent, as Senator Sessions evidently believes -- and as Judge Sotomayor is pretending to agree with?

"The life of the law," Holmes famously wrote, in 1881, "has not been logic; it has been experience." I'm drawing the quote from "The Challenge of Legal Realism," a chapter in the University of Virginia law professor Frederick Schauer's new book "Thinking Like a Lawyer: A New Introduction to Legal Reasoning."

With that statement, Holmes was departing from the reigning view that law was "a largely logical and deductive march from one case to the next," Schauer writes. In contrast, Holmes "had concluded that changes in legal doctrine were largely a function of an experience-based and empirical determination by judges who, when changing the law, were undoubtedly making policy choices dictated neither by logic nor by existing law."

This was one of the first stirrings of a movement within legal scholarship that came to be called Legal Realism. "Viewed in hindsight," Schauer continues, "Holmes' views seem scarcely remarkable, let alone radical."

Except, that is, to members of the U.S. Senate Judiciary Committee.

(To be sure, Schauer does not believe that Holmes's statement captures all there is to be said about how lawyers and judges think; he gives precedent and analogy their due. For anyone who wants a readable primer on legal reasoning and is frustrated by the caricature they've been presented with this week, this book is highly recommended. I may quote a few more snippets from it.)