Make It Sing!

I am not going to get into the habit of linking to "Mother Jones," but someone there has taken a look at some of Sonia Sotomayor's judicial writing and concluded that she, uh, doesn't write very well: Sonia Sotomayor's Prose Problem

As a Supreme Court nominee, Sonia Sotomayor has a lot going for her: a stellar judicial record, a Yale Law School pedigree, a compelling personal history, and more trial experience than any other sitting justice. But while she's clearly a bright and talented lawyer, she unfortunately lacks one of the key qualities of a successful Supreme Court justice: writing skills. To put it bluntly, Sotomayor doesn't write very well. Reporters have sort of danced around this problem. The New York Times' Adam Liptak charitably described her opinions as models of judicial craftsmanship that are "not always a pleasure to read."

Liptak's analysis is something of an understatement. Sotomayor's opinions read like she's still following a formula she learned in college and show little of the smart narratives employed by the federal judiciary's brightest lights. Sotomayor's impenetrable legal opus stands in striking contrast to much of the work produced by the court she aspires to. Supreme Court opinions, the best ones, are words for the generations. There's a reason that so many Supreme Court justices are still quoted long after they've died.

This is, to me, the best reason to oppose her nomination. Forget whether or not she's "racist" for claiming that someone who has lived the fabulously diverse life of a Latina woman has Special Powers of Empathy (it's a stupid and vain comment, but not racist. Newt Gingrich, please sit down. The grown ups are talking). The real problem with Sotomayor is that she is obviously such an affirmative action hire. She not only beat out better qualified men; she beat out better qualified WOMEN for no better reason than they were the "wrong kind" of women.

"Mother Jones" even slips in this gossipy shiv that is normally reserved for Republican nominees:

But writing has apparently plagued Sotomayor since college, when, the Wall Street Journal reports, she nearly flunked out of her first year at Princeton because her writing skills were so poor.

I have a hunch that this "Mother Jones" piece reflects a certain amount of disappointment among liberals. Sure, Obama's fabulously progressive, and evveryone probably thought, "A Hispanic/Latina/whatever justice. That's nice." But, liberals have a problem on the Court and that problem is the quality of the prose coming from their side. With the exception of Stephen Breyer, the four liberals on the Court are mind-numbingly bad writers. In law school, seeing that an opinion was written by Souter, Stevens, or Ginsberg brought a groan to the lips. Personally, I think their writing was bad because their reasoning was off and their efforts to amend the "Living Constitution" were unconvincing. But, Breyer still manages to come up with good workman-like prose.

Meanwhile, the conservatives' opinions tend to be crisp, hard hitting, and unsentimental, reflecting not just their prose styles, but also their qualities of mind. Knowing how few real opportunities there have been to put liberals on the Bench, it must be more than a little disappointing that a dullard like Sotomayor got the nomination. Certainly, it will not be very inspiring when, as is likely to happen, her cursory opinion in "Ricci v NewHaven" (the firefighter case) is overturned by the Court this summer. Not exactly a nomination of destiny, if you ask me.

Of course, "Mother Jones," being a progressive organ can't resist writing a story about the Court without kicking Clarence Thomas:

Without better writing, Sotomayor runs the risk of emulating Clarence Thomas, who is probably the most conservative judge on the high court but also one of the least influential. After all, who quotes Thomas in term papers? His most significant influence on the court is getting the conservatives to five votes.

I know that this is conventional wisdom among progressives but it is R-O-N-G, "WRONG." First of all, conservatives legal types LOVE Justice Thomas' opinions. Many of us consider them to be superior to those of Justice Scalia, since Thomas doesn't try to show off or throw around cute one-liners. Instead, he is rigorous, historically accurate (his opinions on the Commerce Clause should be the rallying point for any conservative push-back against the regulatory state), lucid, and best of all SIMPLE. In fact, he is unique among the justices in writing opinions that ordinary people can read and understand. He definitely does not believe in the Left's ideal of rarefied Justices spinning fanciful interpretations of the Constitution as if they were Delphic Oracles, rather than employees of the US government.

Moreover, "stupid" Thomas often tackles some of the more challenging topics that come the Court's way, such as Patent Law. And, even though he is supposedly a doctrinaire conservative, he never stops surprising people, such as when he voted in favor of CA's medical marijuana law (on Commerce Clause grounds, not Right To Party grounds). And, he often shows more "empathy" than the liberals do, such as when he dissented in the "Kelo" decision and pointedly stated that minority and poor communities would be hardest hit by that miscarriage of Living Constitution justice.

Rather than complain about the "wise Latina" speech, I would like to see conservatives point out how little there is there in both Sotomayor and in the Living Consitution movement of which she is such an exemplar. Like her colleagues, Sotomayor has mastered the language and BS of "diversity." She also knows enough law to write opinions that can support her fondest "emapathetic" dreams. The question, as always, is whether these are legal fantasies, or actually reflect the meaning and intent of the Constitution. Bad prose is often a sign of bad thinking, and there's plenty of that to be found on the Left side of the Bench. Make that the focus, not her cutesy "up from the Projects" compellinglifestory or her lazy diversity.