Opinion: Sotomayor hearings: Franken talks ‘Mason’ and judicial activism

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Finally (dare we say it), the moment so many fans of “Saturday Night Live” have been waiting for. Sen. Al Franken, the Senate’s most junior member, got the chance to query Sotomayor.

He, like the nominee, was a big fan of ‘Perry Mason’ growing up in suburban Minneapolis.

“We’d watch the clock and knew, when it was two minutes to the half-hour, the real murderer would stand up and confess. It was a great show. It amazed me that you wanted to become a prosecutor, because the prosecutor on that show … lost every week.”

Not so, said Sotomayor, who held up one finger.

“With the exception of one week, and we’ll get to that later,” said Franken. “But I think that says something about your determination to defy the odds.”

And then, there was a kind of gee-whiz moment when Franken said, “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. 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.”

And then to business. Franken wanted to know whether Sotomayor agreed with him that unfettered access to the Internet was “a compelling, overriding 1st Amendment right?”

He cited a 2005 Supreme Court case — “Brand X” — where the court decided that cable companies do not have to allow rivals the ability to offer high-speed Internet access, a blow to those who would like to see more competition in Internet services. Sotomayor agreed that the Internet has revolutionized communication but would not agree to characterize the right the way Franken had.

“Rights are not looked at by the courts as ‘overriding,’ ‘ she said. “Rights are rights and what the court looks at is how Congress balances those rights in a particular situation and then judges whether that balance is within constitutional boundaries.”

Franken returned to a subject he’d raised Monday, which is the concept of “judicial activism.”

“As I see it, there is kind of an impoverishment of our political discourse when it comes to the judiciary,” he said. “Judicial activism has become a code word for judges you don’t agree with. What is your definition of judicial activism?”

Sotomayor repeated what she has said before: “It’s not a term I use. I don’t use the term because I don’t describe the work that judges do in that way. I assume the good faith of judges in their approach to the law in that each one of us is attempting to interpret the law according to principles of statutory construction and other legal principles and to come in good faith to an outcome that we believe is directed by law.”

Well, Franken said, maybe you don’t use the phrase, but everyone else does: “In political discourse about the role of the judiciary, that’s almost the only phrase that’s ever used. I think there has been an ominous increase in what I consider judicial activism of late.”

-- Robin Abcarian

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