On the first day of the Sotomayor confirmation hearings, the opening statements of senators were often formulaic. But there was an impressive exception: Senator Al Franken. On his fifth day in office, in his maiden speech on the Judiciary Committee, Franken struck an earnest and inspiring note about how non-lawyers have a responsibility for defining and defending the Constitution--one that called to mind the legacy of his predecessor, the former political scientist, Senator Paul Wellstone. "I may not be a lawyer, but neither are the overwhelming majority of Americans," Franken said. "Yet all of us, regardless of our backgrounds and professions, have a huge stake in who sits on the Supreme Court, and we are profoundly affected by its decisions." Franken said astutely "the rights of Americans, as citizens and voters, are facing challenges on two separate fronts." First, he said, "the position of Congress, with respect to the courts and the executive, is in jeopardy," noting that "during the Rehnquist court, Justice Clarence Thomas voted to overturn federal laws more than Justice Stevens and Justice Breyer combined." This is true, and well worth objecting to. But it only tells half of the story: During a similar period on the Rehnquist Court, Justice Stevens voted to strike down more state and local laws than any other justice (although not more than Scalia and Thomas combined.)
Moreover, Franken’s ode to "judicial restraint" and deference was arguably in tension with his second concern--"that Americans are facing new barriers to defending their individual rights," such as open access to the Internet. The truth is that few liberals take the position that the historian James MacGregor Burns (also a non-lawyer) does in his interestingly radical new polemic, Packing the Court, which defends something close to complete judicial abstinence and says the president should "announce flatly that he or she would not accept the Supreme Court's verdicts" without a constitutional amendment explicitly authorizing the Court to strike down unconstitutional laws. Burns's principled radicalism is a reminder that Democratic senators who have discovered the virtues of judicial deference should be careful what they wish for, like the man on the Titantic who said "I asked for ice, but this is ridiculous." Still, it’s too much to expect Franken to articulate in his first speech precisely where he stands on whether the Court should be more deferential to federal laws than state laws (or to constitutional cases more than statutory cases): He took a serious, non-legalistic position on the Court’s role in American society, and in a way that did him credit.