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Sonia Sotomayer's Prose Problem.

For all President Obama's talk about appointing a justice with a sense of empathy, the Riverkeeper opinion suggests that what he appointed is a technocrat. The most quoted paragraph of Sotomayor's majority opinion is this one:



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.



It's hardly one for the ages. While the Riverkeeper opinion itself is a drag to read, it makes for an interesting point for comparison because Scalia wrote the Supreme Court opinion overturning her. His entire opinion runs only 4,800 words, including the footnotes dissing Justice Stephen Breyer for perceived weaknesses in his dissent. Scalia's opinion is also laden with the technical language endemic to these sorts of regulatory cases, but it manages to be clear and concise and, more important, convincing, because there's actually some original writing tucked in among all the references to section 316(b) and other regulations.

The writer, Stephanie Mencimer prefers Wood.

Perhaps Sotomayor's writing deficiencies wouldn't be so glaring if the competition for the job weren't so stiff. The woman she beat out for the nomination is a rock star of the written word. Diane Wood, a judge on the 7th Circuit Court of Appeals, was the woman on Obama's short list who had right-wing lawyers shaking in their boots. She's the one that Federalist Society members viewed—off the record, of course—as the left's answer to John Roberts. Wicked smart, Wood has spent the last 14 years battling some of the most brilliant conservative legal minds in the country—experience that would have served her well on the Supreme Court. As a law professor at the University of Chicago, she has written books and law review articles, and her legal opinions bristle with intelligence and fluency, with sources far beyond the law books.

Take her dissent in a 2008 case in which the 7th Circuit ruled against a Jewish family whose condo association kept taking down their mezuzah. Wood chastised the defendants for suggesting in legal filings that the family was trying to extract its "pound of flesh" from the condo board. She wrote, "Perhaps the defendants have not read Shakespeare's Merchant of Venice lately," noting that the "pound of flesh" expression was shockingly inappropriate for people trying to convince the court they weren't anti-Semites. She then provides a brief history of the character of Shylock, the bitter Jewish moneylender who is entitled to extract a pound of flesh from a debtor who fails to pay back his loan.

Shakespeare's Sister lives!