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.
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.
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.
Update 3:50 p.m.
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.