Legal News

Does Sonia Sotomayor Have the Write Stuff?

By Ashby Jones

The opening to an article out Wednesday in Mother Jones minces no words:

[W]hile [Supreme Court nominee Sonia Sotomayor] is 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. . . . 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.

It’s provocative, and it’s not a take we’ve yet read about Sotomayor. So why should her writing prowess matter at all, so long as she can communicate her thoughts clearly?

The article’s author, Stephanie Mencimer, sees it like this:

The court’s influence and lasting legacy is what it commits to paper. Sotomayor may be a force of nature in the courtroom, where she’s said to shine, but it’s hard to imagine her going head to head in print with, say, Antonin Scalia. The conservative justice is the master of the wicked one-liner and, while something of a smart aleck, he influences the public debate on so many issues because of his writing-whether he’s in the majority or dissenting and whether he’s right or wrong. Scalia’s opinions are cited in leading constitutional law casebooks more than any other sitting justice. . . . But it’s not just his one-liners that make Scalia’s writing so influential. It’s also the way he frames his arguments. . . .

To bolster her point, Mencimer throws out this gem lump of coal, from Sotomayor’s opinion in Entergy Corp. v. Riverkeeper:

The Agency is therefore precluded from undertaking such cost-benefit analysis because the [best technology available] standard represents Congress’s conclusion that the costs imposed on industry in adopting the best cooling water intake structure technology available (i.e., the best-performing technology that can be reasonably borne by the industry) are worth the benefits in reducing adverse environmental impacts.

Granted, concedes Mencimer, it’s nearly impossible to write like John McPhee when you’re opining the best available cooling water intake structure technologies. But Scalia, she writes, manages to do it much better (as evidenced by his take in the Riverkeeper case). She concludes: “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.”

In other Sotomayor news:

The NYT on Cornyn: The NYT has a piece out today on Senator John Cornyn (R-TX), a known conservative who’s adopted a more moderate tone on Sotomayor than have other influence-makers on the right.

The 2001 Speech in 2001: For an event that has emerged as one of the biggest issues in the confirmation of a Supreme Court justice, the speech Judge Sonia Sotomayor delivered in 2001 generated little notice at the time from the audience at a symposium on Latinos and the law. Why so little reaction? The WSJ’s Neftali Bendavid takes a look.

Photo: Getty Images

Full post as published by Law Blog - WSJ.com on June 04, 2009 (boomark / email).