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Franken questions Sotomayor

Posted at 1:36 PM on July 15, 2009 by Bob Collins (9 Comments)
Filed under: Crime and Justice

As he told Cathy Wurzer this morning, Al Franken went with the net neutrality issue when he got a chance to question Sonia Sotomayor at the Senate Judiciary Committee today.

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Here's the running short version of the exchange:

Q: The Brand X decision deregulated Internet access services allowing private companies to regulate access to the Internet. We've already seen examples of these companies blocking access to the Internet. Companies can slow down competing information and speed up their on. This is frightening. Internet connections use public resources. Doesn't the American public have a compelling First Amendment interest in ensuring that this doesn't happen?

A: Sotomayor gives Franken a lesson on whose job it is to ensure net neutrality.

"The role of the court is not to make the policy but to wait until Congress acts. Brand X was a question of which government agency would regulate those providers. The court determined it fit in one box, not the other."

"The question wasn't regulation vs. non-regulation; it was which set of regulations. We're talking about statutory regulation and Congress' ability to amend the statute if it chooses. This is not to say the Internet is not important."

Q: Isn't there a compelling First Amendment right for Americans to have access to the Internet?

A: Rights are not looked at as overriding. Rights are rights and what the courts look at is how Congress balances those rights in a particular situation.

Q: There's an impoverishment of our political discourse when it comes to the judiciary. It's very often reduced to 'I don't want an activist judge. I don't want a judge who's going to legislate.' What is your definition of judicial activism.

A: It's not a term I use. I don't describe the work I do in that way. We all go through the process of reasoning out cases in accordance with the principles of law. People think of activism as the wrong conclusion in light of policy; but hopefully judges... are not imposing policy choices or their views of the world... that would be judicial activism.

Q: It's almost the only phrase that's ever used. I want to ask you about a few cases. Congress used power in the 15th Amendment when it passed the Voting Rights Act of 1965. The courts should pay greater deference to Congress. Is that your view? (He's referring to this case)

A: I've not made a prejudgment. The ABA rules says no judge should make comments about an impending case.

Q: Gross v. FBL Financial Services (I wrote about this one here). This is a big deal. When you go to court to defend your rights, you have to know which rights you're defending. ( I'm not really sure what Franken is trying to say here; the decision shifted the burden of proof in age discrimination suits to the employee)

A: I'm less familiar with this case. (I think Sotomayer was trying to let the senator down gently)

Q: Yesterday a member asked you if abortion appears in the Constitution. Are the words "birth control" in the Constitution.

A: No.

Q: Are the words privacy in the Constitution.

A: The word privacy is not.

Q: So you believe the Constitution contains a fundamental right to privacy.

A: It conveys certain rights that extend to the right of privacy in certain situations. Parents have the right to regulate the education of their children.

Q: So the fact it doesn't appear in the Constitution isn't really relevant, is it?

A: The Constitution is written in broad terms and the court interprets how it relates to an individual situation.

Q: The right to privacy included whether an individual has the right to abortion. Do you believe that this right to privacy includes the right to have an abortion?

A: The Court has said that there is a right to privacy that women have with respect to the termination of their pregnancy in certain situations.

Q: What was the one case in Perry Mason that Burger won?

A: I don't remember.

Q: Didn't the White House prepare you?

A: I was spending a lot of time reviewing cases.

(Bob notes: It was the 185th episode. The Case of The Deadly Verdict", first aired on October 17, 1963.

According to IMDb:

Although it's popularly believed this episode represents the only time Perry Mason loses a case, in the first-season episode "The Case of the Terrified Typist", not only is Mason's client convicted of murder - he turns out to be really guilty! (However, Mason figures out that the murderer was impersonating someone else, and since some of the prosecution's evidence was related to the actual person whose identity had been stolen, a mistrial is declared, meaning a second trial for the defendant, presumably without Mason's services.) In the sixth-season closer, "The Case of the Witless Witness", a respected judge rules against Mason in some civil matter; when the judge ends up falsely accused of corruption, then murder, Mason doesn't hesitate to defend him.

Other online experts claim he lost three times. The jury is still out on this, however.

Franken struggled in his first public exchange with a Senate witness. He didn't exactly do a Bobby Jindahl, but it wasn't real pretty. Grade: C- Update 3:50 p.m.

THE REVIEWS

John Dickerson on Slate:

He's had to be serious almost since he announced he was running for the Senate. Then, after finally being sworn in, he's had to show that he didn't come to just tell jokes. On the day he met his Democratic colleagues for their weekly lunch, Sen. Chuck Schumer emerged from the meeting and reiterated several times that there were no jokes told. (In fairness to Schumer, he had to repeat because reporters kept asking: Were there any jokes?) During Franken's opening statement, the most popular comment (at least judging from my inbox and Twitter feed) was something along the lines of, "This Saturday Night Live skit isn't very funny." Now that he's finally made a quip, we can all stop waiting for him to be funny.

Comments (9)

are you displaying your lack of empathy for comedians here? I thought he showed non-MN viewers that he's not a punchline or a clown, and the Lawyers I was eavesdropping with gave him props for asking good questions. He spoke explicitly of the need for her to remember that the public is watching and doesn't get all the legal niceties that she also has to address, that they think in soundbites like the viewers of Perry Mason.

Posted by Joanna | July 15, 2009 2:22 PM

"Franken struggled"? I watched the exchange and I came away thinking that Franken had done very well. Asked substantive questions to seek substantive answers and quickly moved on to the next question. Specifically Bob, what made you think that Franken struggled? I seriously am interested in your take. I consider you one of the more objective reporters out there. Thanks

Posted by mike | July 15, 2009 2:49 PM

I can't believe I'm going to say this - but here goes. We all know that Franken is not a lawyer but the important thing is that Franken knows he is not a lawyer. He was direct and did not attempt to parse subjects he knew little about. Consequently guys like me understood what he was asking and he got quite a few questions asked. All in all it was a solid effort for a guy who has yet to figure out where the restrooms are. In addition, he performed a heck of a lot better than Joe Biden ever did.

Posted by Duke Powell | July 15, 2009 3:22 PM

I agree, he's not a punchline or a clown. He was in a really tough spot. The good stuff had already been tilled.

But let's look a little closer at how the questioning went.

a.) he started off with net neutrality, which wasn't a surprise. He cited the Brand X case to a sitting Appeals Court judge who then had to explain to him what the Brand X decision was REALLY all about. (Isn't there an old saying that lawyers shouldn't ask questions if they don't already know what the answer will be?) Not good. OTOH, he did a good job of stating clearly what net neutrality is and why it's a big deal. This was one of those times where these folks have to decide who they're playing to - each other, the national TV audience, or the witness. It's a really tricky balance and I don't think it's easily accomplished.

b) After Sotomayor made it clear that the issue of net neutrality is one for Congress to decide, he repeated the same question -- do you think there's an OVERRIDING -- right to the Intenert at which point Sotomayor said rights do not override each other.

c) He then got caught up in trying to answer some Republicans on the committee on the abortion issue by asking HER rapid fire questions about what words are in the Constitution. The point was clear. It was to THEM. But it forced her to appear to be humoring him.

d) I've gone back and read Gross v. FBL Financial Services again and I think this is where he really choked in explaining it. In a way, he seemed to try to be showing that even though he's not a lawyer, he can talk law with the best of them, and ended up away from his forte which is plain language talk. He recovered when he said "this is a big deal," but he just as easily could've said, "hey, how's someone supposed to sue for discrimination when the employer doesn't have to prove he didn't?"

In the course of the questioning, he started focusing on Clarence Thomas' comments and he got all twisted around.

I didn't expect him to be Stuart Smalley and he wasn't. So my grade wasn't based on his not being Stuart Smalley -- that's for the jerks in the national media. My grade is based on hanging in there with a big-league judge on a big-league Senate committee.

Just because the rookie comes in and strikes out in his first AB doesn't mean he won't have a great career. But it also doesn't mean you ignore when the rookie was -- for one AB on one day -- out of his league.

Posted by Bob Collins | July 15, 2009 3:29 PM

Bob C makes a compelling argument for his view of Franken's performance. Whether he's right that Franken 'struck out' or not, it appears to me, from reading the transcripts only, that Sen Franken's performance today was superior to his debut on Monday.

Posted by bsimon | July 15, 2009 3:48 PM

And he did a lot better than Sen. Sessions! THAT sounded like an out-take from "Borat".

Posted by Heather | July 15, 2009 3:54 PM

On the Brand X question it was clear to me that Franken believes that internet access is a first amendment right and wanted Soto to say so. She was right in saying it is a matter for lawmakers. The fact that he was only following the script he ran on. That is that Clarance Thomas, who wrote the decision, is the Left's biggest boogie-man and wants to stiffle free speech rights.

On abortion all he was doing is what NAARLand Planned Parenthood taught him to do - which is to attempt to belittle anyone who would question the rights of women to kill babies anytime they wanted to.

As for Gross v FBL he was picking on a Thomas ruling again and Soto correctly replied that the Congress can fix it if they so choose. I would add that Congress could have fixed the supposed problem in the original bill, or any time since, but have chosen not to.

Al Franken is a Leftist and gave a very credible performance of one today. It was a lot better than I expected.

Posted by Duke Powell | July 15, 2009 4:06 PM

thanks for a thoughtful response Bob. I think the comparison to Bobby Jindal was a llittle OTT, but I see your points.

Posted by Joanna | July 15, 2009 9:21 PM

Bob C wasn't the only one to catch Senator* Franken's stumbling; Franken himself was clearly uncomfortable having to play the serious, thoughtful adult, which is why he fell back onto the clown act.

Franken knows that the press is always waiting for Senator Smally to show up, and that the jokes would be front page, while Senator* Franken's embarrassing gaffes would be relegated to the "strange news" sections.

When the heat is on, go with what you know.

Posted by TJSwift | July 16, 2009 8:52 AM