Photo: The UpTake

Photo: The UpTake

U.S. Sen. Al Franken led off his questioning of Judge Sonia Sotomayor with the issue of “net neutrality,” the principle that users, not service providers, should control what they view and how they use the internet. Sounding like the voice-over on a trailer for an apocalyptic Hollywood blockbuster, Franken conjured a bleak picture of a country where communications are dominated by megacorporations. “It’s frightening,” he said. The gist of Sotomayor’s response at Wednesday’s Senate Judiciary hearings into her nomination to the U.S. Supreme Court: It’s Congress’ problem.

“The role of the court is never to make policy,” the judge said, after allowing that “as a citizen,” she could see that “the internet has revolutionized communications” and that access is an issue.

That gently but quickly deflated Franken’s carefully constructed dystopic vision, a fable of the fall of free speech which in his telling began with Duluth, a town that — in his speculative telling — could see one company owning multiple media outlets, including the local internet service provider. He named several other Minnesota cities, then (randomly) Youngstown, Ohio, then Sotomayor’s hometown and Franken’s former home, New York. (He had promised questions about campaign finance reform, but net neutrality, with its nexus of power and communication, was probably a more perfect issue for the entertainer-turned-politician.)

Indeed, he introduced the issue by making light reference to the TV show “Perry Mason,” which Sotomayor had earlier told Sen. Amy Klobuchar was her inspiration for becoming a prosecutor. Franken had also been a fan as a kid, he said, watching in suburban Minneapolis while she watched in the South Bronx — and now he’s a U.S. senator interviewing her for a position on the U.S. Supreme Court.

“That’s pretty cool,” he said, with a goofy grin that didn’t seem to achieve the gravitas he’d sworn to strive for in the Senate.

Franken’s next line of questioning was judicial activism, that conservative bugaboo about judges making policy, which Franken blamed for the “impoverishment of our political discourse.”

Sotomayor disavowed the concept altogether: “It’s not a term I use.”

Franken fretted about a recent case in which the court signaled a readiness to undo voting rights. When Sotomayor’s response began to sound evasive, Franken interrupted, to laughter: “So, it means you’re not going to tell us the answer.” He was contrite: “I don’t mean to finish your sentence for you.”

Sotomayor said simply, “It’s not something I can opine on,” because future cases touching on the topic are “impending.”

Franken next tried to draw her out on the court’s watering-down of age-discrimination protections, but again Sotomayor resisted, so he moved on to abortion.

During yesterday’s questioning, Sotomayor had been asked whether the word “abortion” appears in the U.S. Constitution, Franken recalled. “Are the words ‘birth control’ in the Constitution?” he then asked.

“No, sir,” said Sotomayor.

Franken paused. “Are you sure?” Even Sotomayor laughed at his comic timing, before offering a qualified positive response to his next question, “Do you believe the Constitution has a fundamental right to privacy?”

Franken pressed for how that applies to abortion. Sotomayor: “The court has said in many cases … that there is a right to privacy that women have with respect to the termination of their pregnancies in certain situations.”

Saying he’d get to other topics in the second round of questioning, Franken finished by returning to “Perry Mason.” Incredulous that Sotomayor could have been inspired by the ever-losing prosecutor Hamilton Burger, Franken asked, “What was the one case that Burger won?”

She couldn’t recall, despite having brought up the existence of a single such case to both Minnesota senators.

And so arrived, at the very last minute, the first big laugh line of Franken’s second big day in the Sotomayor media spotlight:

“Didn’t the White House prepare you for that?”

(The answer that Sotomayor couldn’t give, as provided by Noah Kunin of The UpTake: “The Case of the Deadly Verdict” from 1963.)

For more legal analysis of Sotomayor’s responses to Franken, see Daphne Eviatar’s post at our sister site, The Washington Independent.

Here’s an eight-minute excerpt from the exchange: