Franken Quizzes Sotomayor on Perry Mason — and Actual Constitutional Issues

For a comedian-turned-politician with no formal legal training, the newest senator and Judiciary Committee member, Sen. Al Franken (D-Minn.) asked Supreme Court nominee Sonia Sotomayor some of the most complex but elucidating questions about Supreme Court cases we’ve heard yet. After bonding with Sotomayor over their mutual love of the Perry Mason show as kids, he launched into a series of probing questions ranging from whether there’s a right to Internet access, to constitutional interpretation in voting rights cases, express versus implied rights in the Constitution, and of course the all-important question about a woman’s right to an abortion.

And Sotomayor actually answered some of them.

In particular, asked by Franken whether she believes the Supreme Court’s recent decision invalidating part of the Voting Rights Act was an “activist” decision that overrode the intent of Congress and the language of the Constitution, she declined to comment on the Supreme Court’s opinion, but instead pointed out her own ruling in a previous case involving the Voting Rights Act, strongly implying that she thought the Supreme Court had indeed gone too far.

In the case she decided, “I suggested that issues of changes to the Voting Rights Act should be left to Congress in the first instance,” she said. That was one of the most direct answers on an issue likely to come before the court that she’s given yet.

And Franken wins points for asking another roundabout question meant to elicit her views on “judicial activism” — a phrase Sotomayor said she doesn’t like to use.

“How often have you decided a case on an argument or a question that the parties have not briefed?” asked Franken.  This question goes to the heart of the Ricci reverse discrimination case, where the Supreme Court on its own set out a new standard for lower courts to follow, then refused to send the case back to the courts to let the parties brief how it applied to the facts at hand.

Sotomayor could not remember a single instance of doing that as a judge.

She also couldn’t remember, when Franken asked her as he wound up his questioning, the name of the one case that the prosecutor on the Perry Mason show won.  To which Franken replied: “Didn’t they prepare you at the White House for this hearing?”