Now, unlike some I am not worried that the judges a President Obama would appoint would lack knowledge of law or would be bereft of formal qualifications. And within that confine, I think that what Obama is talking about is a valid and important quality to consider in judicial appointments. Two early posts I wrote explained why I thought "sympathy" could be a valid part of judicial decision-making procedure. More concretely, I recently examined how a diverse array of experiences is really important for a good judiciary. A diverse institution brings a tighter understanding of the actual, material impact of certain laws or policies than a monolithic judiciary does. For example, in determining whether a given law constitutes "an undue burden on a woman's right to choose", men only have a second-hand experience with the situation and facts in question. That doesn't mean they're incapable of ruling, but it does mean that their decision is likely to be less well-informed than it would be if there was a female voice on the bench. In other cases, perhaps castration, it might be important to have a male voice on the panel, because the material effects of castration on one's bodily autonomy might be clearer to him than to a female judge (by and large we have no shortage of male judges, so this isn't a problem, but the point is that experiential diversity cuts all ways). By contrast, when the judiciary is monolithic or monochromatic, fundamentally subjective positions and a particularized standpoint are draped in the cloak of "The Law" and become unchallengeable Truth or Reason. Jack Balkin explains:
If we do not investigate the relationship between our social situation and our perspectives, we may confuse our conception of what is reasonable with Reason itself. If we do not see how our reason is both enabled and limited by our position, we may think our judgments positionless and universal. We may find the perspectives of those differently situated unreasonable, bizarre, and even dangerous, or we may not even recognize the possibility of another way of looking at things.The alternative is to proactively try and create a judicial system that is at least somewhat representative of the polity it is ruling upon (and thus will have access to as good a cross-section of perspectives as possible). As Cass R. Sunstein remarks, "In a system of free expression, exposure to multiple perspectives will offer a fuller picture of the consequences of social acts. This should help make for better law."
To sum up: The idea that there is a trade-off between judges who are best at interpreting the law, and judges who "understand" the experiences of those whose voices are least likely to have elite import, is a fallacy. Contributing to the experiential diversity of the court (or at least being cognizant that these differing experiences matter) is part of what makes one a good judge. If President Obama nominates judges with an eye towards this quality, along with, of course, their formal qualifications and experience, he'd be doing the judiciary and America a great service.