WASHINGTON, D.C. — The moment came roughly eight hours into the third day of Sonia Sotomayor’s Supreme Court confirmation hearing. With the air conditioner broken, and the audience lulled into a glassy-eyed stupor by rehashed questions and repeat responses, the chairman of the Senate Judiciary Committee finally turned to the last senator on his left.
“And, [last in] this round of questioning will be Senator Franken, the newest member of the committee,” said Sen. Patrick Leahy, D-Vt.
It would be an overstatement to say that it was the moment everyone had been waiting for, but those in attendance did seem to perk up at the mention of the familiar name.
It was Al Franken’s debut performance since being sworn-in to office last week after a protracted Senate race against incumbent Norm Coleman. And it just happened to be a Supreme Court confirmation hearing, which is essentially like asking a rookie to pitch the World Series on his first day in the majors.
But, like the Democrats who had come before him, Democrat Franken eagerly took to the mound and began throwing out the best softballs he had.
“I watched ‘Perry Mason’ every week with my dad and my mom and my brother,” Franken began, referring to the TV show that Sotomayor had mentioned earlier in the hearing under questioning from Minnesota’s senior Sen. Amy Klobuchar, a Democrat.
“And it amazes me that you wanted to become a prosecutor based on that show,” Franken continued. “Because, in ‘Perry Mason,’ the prosecutor, Burger, lost every week…”
At this bit of whimsy, Sotomayor smiled, the audience chuckled, and Franken attempted to reconnect his observation to the matter at hand.
“But, I think that says something about your determination to defy the odds,” he said.
The media, however, thought it said more about Franken, who is a former comedian and liberal radio talk show host known for his satire and biting wit.
Before Franken had concluded his round of questions, which mostly focused on the very unfunny issues of net neutrality, judicial activism and the right to privacy, the tweets were already out about him cracking wise.
Like proud parents whose child had just passed an impressive milestone, POLITICO declared it “Sen. Franken’s first joke.”
Washington reporters — force-fed a peas-and-carrots narrative over the last week of Franken the Taciturn and Franken the Solemn — exhaled a collective sigh of relief.
“Finally, we get to see the real Franken,” one reporter said after Franken ended his comments to more laughter over the fictional defense attorney Perry Mason.
That none of it was really even that funny seemed to matter little. It had been roughly seven hours since Sen. Tom Coburn, R-Okla., and Sotomayor had entertained two bizarre hypothetical cases: one featuring Coburn as 38 weeks pregnant and the other starring a gun-toting Sotomayor returning to the committee room and shooting him. And it had been at least 24 hours since Sen. Chuck Grassley, R-Iowa, had referred to his “ability to turn people on.”
So, those still in the room were looking for a little levity. And, it would seem, that Franken delivered. Or at least, the audience took what it could get.
But the reaction from outside the hearing was a bit more mixed.
Some in Minnesota — familiar with the image of an attention-seeking liberal firebrand that Franken has struggled to change since running for office — bristled at portions of his performance.
“I don’t think that any damage was done,” said Larry Jacobs, a political science professor at the University of Minnesota. “But I do think it was a moment to pause and say, ‘Does he really understand the challenges he faces?’
“He has given us a lot of rhetoric about not being a show horse,” Jacobs continued. “So, why did he throw in the Perry Mason thing? Why did he not just go into his very reasonable questions about judicial activism? Instead there seems to be a very driven need for cleverness.”
Jacobs said that it was this inclination that might prove problematic to Franken reinventing himself as a conciliatory and pragmatic senator who shows deference to the more-senior lawmakers.
“That is what set alarm bells off for me,” Jacobs said. “You think this is clever, but this is not what you need to be in the news for now.”
On that point, David Schultz, a professor in the Hamline University School of Business in St. Paul, agreed.
“The danger is that the main story becomes about his discussion with [Sotomayor] on Perry Mason,” said Schultz.
And, indeed, the Perry Mason segment reverberated through headlines, stories and TV clips throughout the evening and into the next day.
“If you watched the hearing, the Perry Mason discussion was just sort of a sidebar,” Schultz said. “But what struck me is that the established media seemed to be keying in more on that than anything else.”
In a hearing where funnier and stranger things were said, and truly offensive comments were also made, Schultz said that Franken was “facing a double standard.”
“He has to work harder than other senators to prove” himself, said Schultz.
But does this mean he should amputate his wit in the process?
Guy-Uriel Charles, a professor of law at Duke University who used to work at the University of Minnesota, argued that the Perry Mason bit was “a positive thing.”
“Obviously, the risk is that he won’t be taken seriously, that he will be viewed as a clown,” Charles said. “But, oddly enough, it seems that if he played it as a straight man, without any humor, he would have been taken less seriously.”
Kathryn Pearson, an assistant professor of political science at the University of Minnesota, reduced this reasoning to the authenticity factor.
“Franken being funny and serious at the same time is Franken’s own brand of authenticity and voters want authenticity,” Pearson said. “If Franken never cracked a joke, I think people would wonder where the real Franken was.”
Franken, however, said he didn’t even see it as much of a joke.
“I thought it was more of a human moment than a humorous moment,” Franken said after the hearing. “It was about getting to know her as a human being.”
Franken pointed to the portion of his questioning when he noted that both of them — Sotomayor in the Bronx and Franken in suburban Minneapolis — had grown up watching the same show.
“And here we are today,” Franken said during the hearing. “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.”
Range of legal topics
In addition to not finding his Perry Mason comments very funny, Franken added that he also thought his “line of questioning was quite serious.”
On that note, the political analysts that MinnPost talked to seemed to agree.
Franken’s arc of questions started by focusing on net neutrality and the First Amendment, touched on judicial activism and the Supreme Court’s recent cases on the Voting Rights Act and age discrimination, and ended on abortion and the right to privacy.
The media also picked up on some of these topics, just not to the extent of the Perry Mason banter.
“I think it went very well,” said Charles, who is a constitutional law expert. “At the end of the day, I thought he was quite impressive.”
Said Jacobs: “I thought that his questions were very much within the ballpark of legitimate questions.”
Concluded Schultz: “He didn’t embarrass himself. And, I think he did as good as anyone could have done with only about five days on the job.”
Throughout the hearing, and in the weeks preceding the hearing, one of the main Republican talking points against Sotomayor has been about judicial activism. Franken sought to upend the Republican argument by redefining the term and pointing to several instances where he felt that conservative members of the Supreme Court had engaged in acts of judicial activism.
“He attempted to provide a counterweight, from an intellectual perspective, to the questions conservatives had been asking [on judicial activism],” said Charles. “It was not something you would have expected from the newest, and most junior, member of the committee… [And] I thought for a person who is not a lawyer and who was only just sworn-in as a senator, he seemed extremely well prepared and quite sound.”
Although Schultz noted that Franken’s “pit bull” approach seemed somewhat reminiscent of his Air America days, Jacobs argued that the point he was making was not “highly partisan.”
But Pearson cautioned that it was still far too early to tell what kind of a senator Franken would become.
“At the end of the day, this is only the beginning,” Pearson said. “Where the lasting opinions of both Minnesotans and the press will be formed is in the legislation he offers, the speeches he gives on big issues like health care and how he responds to the needs of the state.”
Thus, time will tell whether Franken will successfully shed his former persona and escape the pre-written Jesse Ventura-narrative that lies in wait for him.
Unlikelier events have certainly occurred. Even Hamilton Burger won at least once.
Cynthia Dizikes covers Minnesota’s congressional delegation and reports on issues and developments in Washington, D.C. She can be reached at cdizikes[at]minnpost[dot]com.