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Franken questions Sotomayor about judicial activism, abortion – and old TV episodes

U.S. Senator Al Franken
REUTERS/Jonathan Ernst
Sen. Al Franken at today’s Judiciary Commiittee hearing with Sonia Sotomayor: “What is your definition of judicial activism?”

WASHINGTON, D.C. — Perry Mason, a fictional defense attorney, and ruminations on judicial activism took center stage today in Sen. Al Franken’s lively questioning of U.S. Supreme Court nominee Sonia Sotomayor.

Under earlier questioning by Minnesota’s senior Sen. Amy Klobuchar, Sotomayor had said that the “Perry Mason” TV show had inspired her decision to become a prosecutor.

Franken began his questioning by agreeing wholeheartedly with Sotomayor on her TV selection.

“It was a great show,” Franken said, adding that it amazed him that she “wanted to become a prosecutor based on that show because the prosecutor … lost every week.”

Then, Franken paused to have one of those pinch-me moments.

“While you were watching ‘Perry Mason’ in the South Bronx with your mom and your brother, I was watching ‘Perry Mason’ in suburban Minneapolis with my folks and my brother, and here we are today,” Franken said. “I am asking you questions because you have been nominated to be a justice of the United States Supreme Court. I think that’s pretty cool.”

Franken turned next to Internet issues. Franken asked Sotomayor if she agreed with him that access to the Internet was an “overriding First Amendment right.”

Franken raised the 2005 Supreme Court “Brand X” decision in which the court decided that cable companies do not have to give rivals the ability to offer high-speed Internet access.

“There is no question in my mind, as a citizen, that the Internet has revolutionized communications in the U.S.,” Sotomayor said.

But, Sotomayor added, courts do not view rights in Franken’s “overriding” terms.

“Rights are rights,” Sotomayor said. “And what the court looks at is how Congress balances those rights in a particular situation.”

‘Judicial activism’
Franken then addressed judicial activism, an issue that he raised on Monday during his opening statements.

“There is kind of an impoverishment of our political discourse when it comes to the judiciary, or talking about politics,” Franken said. “Very often it is just reduced to, ‘I don’t want an activist judge. I don’t want a judge who is going to legislate’ … it has become a code word for judges you don’t agree with.

“What is your definition of judicial activism?” Franken asked.

Sotomayor demurred.

“It’s not a term I use. I don’t use that term because I don’t describe the work that judges do in that way … hopefully judges are not imposing policy choices, or their views of the world. That would be judicial activism, but I don’t use that word because that is something different than I consider the process of judging” to be.

Franken, however, remained undeterred. “You might not use that phrase,” he said. “But in political discourse about the role of the judiciary that is almost the only phrase that is ever used.”

Franken repeated what he said earlier in the week. “I think there has been an ominous increase in what I consider judicial activism as of late.”

Franken went on to criticize several opinions written by conservative members of the Supreme Court in recent cases, including one dealing with the voting rights act and another that touched on age discrimination.

Franken capped off this portion of his questions by reciting sections of the 15th Amendment from a pocket Constitution.

He then asked Sotomayor about abortion.

Do you believe that the right to privacy includes “the right to have an abortion?” Franken asked.

Like she has done throughout the hearings, Sotomayor sidestepped the question on her personal views of abortion, and instead referred to precedent.

“The court has said in many cases … that there is a right to privacy that women have with respect to the termination of pregnancies” in certain cases, Sotomayor said.

One more question …
Then, Franken saved his zinger for last.

So, what was the one case where Perry Mason lost? Franken asked.

Stumped, Sotomayor laughed, and said she couldn’t remember.

“I thought the White House prepared you for this?” Franken joked.

Sotomayor, smiling, explained that she had been spending a lot of time preparing for cases.

The mystery prompted committee Chairman Patrick Leahy, D-Vt., to ask Franken to identify the episode.

“I don’t know,” Franken said, laughing. “If I knew, I wouldn’t ask.”

The White House later reported that the episode was the “Case of the Deadly Verdict.”

But, according to Perry Mason fan website, Mason actually lost three decisions: “The Case of the Deadly Verdict,” “The Case of the Witless Witness” and “The Case of the Terrified Typist.”

Both Klobuchar and Franken will have an opportunity to ask a second round of questions tomorrow.

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Comments (4)

  1. Submitted by joan shrager on 07/15/2009 - 05:45 pm.

    You are so lucky to have Al Franken. I was thrilled with his questioning today. He is clearly a smart, well informed man who cares for the rights of American citizens. I hope the people he champions recognize what a gift he is. My mother was born in Duluth in 1907 and I know she would have been so proud of him. I am too!

  2. Submitted by Len Lichtblau on 07/15/2009 - 11:51 pm.

    Was it just me or did Al Franken, the class clown, ask the most incisive questions of the day. His questions addressed the questions the other 11 Democrats should have been asking all along, not whether Sotomayor is to liberal, but whether she is liberal enough.

    Go for it Al.

  3. Submitted by Richard Schulze on 07/16/2009 - 06:33 am.

    @ Len: Great observation with regards to incisive questions from our junior MN senator. There are apparently others in the legal community that are noticing the same about Senator Franken.

    //And it’s not just Republicans who made a bad choice. Democrats, too, have failed to use this hearing to their advantage. With an opportunity to talk to all of America about their theory of jurisprudence and to make the case against the Roberts Court’s narrow view of justice, they said almost nothing. Some of the only questioning along those lines came from Sen. Al Franken, who made Sotomayor very uncomfortable as he grilled her on the Roberts Court’s tendency to overreach. In this term’s Voting Rights Act case, the court came close to striking down an act of Congress, and in an age-discrimination case, it decided an issue that was never briefed. Franken politely asked Sotomayor, “How often have you decided a case on an argument or a question that the parties have not briefed?” He wondered whether that constituted judicial activism.//

    //Good question. Why was the junior senator from Minnesota, the one sworn in only a week ago, the first one asking it?//

  4. Submitted by Ron Gotzman on 07/16/2009 - 05:59 pm.

    Mr. Franken is meeting all my low expectations.

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