According to Jennifer Rubin, Judge Sonia Sotomayor claims to be a meticulous draftsman, committed to clear writing. I’m surprised that this claim has gone largely unchallenged. Judging from her infamous 2001 “Wise Latina” speech, she is an abysmal writer. The speech, which usefully reveals her own voice without the assistance of a law clerk, is filled with weird, unidiomatic constructions and errors of punctuation and grammar. If she is elevated to the Supreme Court, her opinions will continue to benefit from the interventions of law clerks and will presumably not demonstrate the patent strangeness of her unedited prose. Still, I find it disturbing that someone with a merely intermittent grasp of usage will be responsible for the country’s most important legal opinions. Harriet Miers’s nomination to the Supreme Court was appalling in large part because of the embarrassing mediocrity of her writing. Sotomayor may already be on a bench, but there’s a big difference between producing opinions for one of eleven appellate courts and producing opinions for the judiciary’s lodestar. Sotomayor’s writing ability should be no less relevant in assessing her nomination than Harriet Miers’s was. (Mother Jones’s Stephanie Mencimer brilliantly analyzes Sotomayor’s published opinions, and, while not finding them ungrammatical, worries that they are so crushingly tedious and “impenetrable” that they will undercut her power to move the court to the left.)
The following paragraph from the “Wise Latina” speech is thoroughly representative. It contains both glaring bloopers and more subtly off-key notes that demonstrate a deafness to the conventions of English style:
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others [clumsy]. Other [sic] simply do not care. Hence, one must accept the proposition that a difference there will be by [huh?] the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them [we are expecting “it” here] further into areas with which I am unfamiliar. I simply do not know exactly what that difference [which “difference?” there is no immediate antecedent for “that”] will be in my judging. But I accept there will be some [“some” what?] based on my gender and my Latina heritage.
Or take this sentence: “The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.” It is possible to make out what Sotomayor intended to say, but no thanks to her actual choice of words. An “aspiration” does not “deny” anything, and it is not an aspiration because it “denies” something. Presumably she means something along the lines of: “We can aspire to impartiality, but never achieve it,” but what she actually wrote is a far cry from that.
Here are just a few more sentences from the speech that are off-kilter; there are many more like them:
“Nevertheless, much still remains to happen.”
“For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering?”
“I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation.”
She sticks commas into clauses randomly: “and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states . . .”
To be sure, Sotomayor’s hackneyed identity politics, so ably skewered by other NR writers, is the most troubling part of her speech. In denouncing the lack of adequate Hispanic representation on the federal bench, she uses the crudest possible test for alleged discrimination against Hispanics. The numbers of Latino judges “are grossly below our proportion of the population,” she writes, seemingly oblivious to the fact that the relevant benchmark for judicial representation is — at a bare minimum — the proportion of Hispanics among law-school graduates. (The real benchmark, of course, should be the proportion of Hispanics graduating at the top of their class.) The lack of proportional Hispanic representation on the bench — defined by population numbers — Sotomayor writes, demonstrates the “real and continuing need” for ethnic-based advocacy groups to pressure the Senate for “equality in the justice system.” Such a deliberately blind understanding of hiring and qualifications bodes very poorly for future Supreme Court precedent on matters of race. But writing is a measure of thought as well, and Sotomayor’s writing does not impress one with the lucidity of its source.