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Al Franken

If you watched any part of the Elena Kagan Senate judiciary hearings for her nomination to the Supreme Court, you might have recognized that someone stole the show. It was not Kagan herself, though she had some good moments and, as a future Supreme Court Judge, one can anticipate that she will make an excellent foil against ideologues on the court, who want to rule from their gut, such as Antonin Scalia.  Kagan knows the law and she’s firm enough in her convictions through scholarly experience that we hope she won’t back down to decisionary arguments that arise directly from the intestinal wall.  Nevertheless, her placement on the Supreme Court will still preserve the current  5 to 4 decision-making balance, as the court will still be able to march the country to the very edge of a corporatist state. But the star of last week’s judicial hearings was Minnesota’s junior Senator Al Franken, the newest member of the Senate Judiciary Committee. Although he was probing the opinions of Kagan herself on legal issues, his message was really directed to his fellow Republican members on the Judiciary, whose favorite theme was whether Kagan would be an “activist judge” and if so they would argue, she would be an undesirable new member of the court.

But during Franken’s questioning, he established how, in many cases, the Roberts court had exceeded  the normal judiciary philosophy and and in doing so was effectively making new law from the bench. The court that the Republicans wanted to defend was in fact the most activist court in decades, sort of like the pro-slavery Supreme Court of the 1850s.  Franken showed deep knowledge of case law in the examples he cited and he always structured his arguments in such a way that he was supporting the average person when confronted by legal obstacles, or unfair practices.  Franken did most of the talking and appeared to frustrate Kagan, as she was given little room to express herself except that she mostly agreed with Franken’s assertions, at least on principle issues. Franken’s probing left little doubt that the Roberts court, through their many, sometimes shocking decisions, is effectively the right arm of our march to a corporatist state and he gave very concrete, important examples of how this was being achieved and how prior laws, such as labor laws, were being undermined or ignored by the Roberts Court. A C-Span video is available where you can see Franken’s remarks on labor laws and mandatory arbitration and how the court has dismissed previous congressional labor laws which bestowed an employees right to sue his/her employer with new rules that replace that right with mandatory arbitration clauses embedded in the labor contract. This trend has been aided by recent decisions of the Roberts court. You can watch a section of Franken’s interview with Kagan here, though you have to go into the video by about 1:32 to see the Franken section.

Before Franken’s turn at the microphone in the Kagan hearing, several Republican Senators had used Kagan’s appearance to slam Justice Thurgood Marshall, the first black judge appointed to the Supreme Court. Kagan was formerly a law clerk with Marshall and had given glowing evaluations of him as a Supreme Court judge. Many Republicans have racism in their genome, but make sure their race card gets played out through deflected attacks, such as those on a deceased Supreme Court judge.  Franken defended Marshall very eloquently and pointed out how his decision-making process and his rulings and opinions made him one of the great Supreme Court  justices of all time, primarily because his decisions were not aimed at improving the fairness under the law only for blacks, but for all people against whom discrimination had been given the sanctuary of law.  Franken’s probing of the law, with Kagan as background,  provided stark relief from the simple-minded nature that Supreme Court Justice nominee hearings have been in recent years: he cited case law and even footnote numbers to demonstrate what justices had decided in several famous cases that seemed to go against the grain of common sense or prior established law. Franken stood in stark contrast to all other Senators, who must have been embarrassed to see a non-lawyer out-doing them on matters of judicial philosophy and details of important case law.  He single-handedly raised the bar for future Supreme Court nominee interrogations and hearings. It is doubtful that the Republicans would even try to defend the Roberts court decisions in these many areas, as they have chosen obfuscation over clarity.  Franken’s views are unabashedly progressive and he doesn’t try to hide them–he is staunchly committed to the law as it exists to protect the average citizen or including those workers who are no longer getting a “fair shake” under the law, especially when standing before the current iteration of the Supreme Court. His views include the old fashioned idea that corporations exist to serve the public, not the other way around. Once we get back to that point of view, we should be able to pronounce our society as healthy once again.

Ever since the two term Senator from Minnesota, Paul Wellstone, was tragically killed in an airplane crash during his campaign  for re-election in 2002, something has been missing from the Senate. During his short two-term Senate career, Wellstone had a clear voice in which he articulated the case against going to war with Iraq in 1991 and in 2002 and spoke out forcefully for the average citizen in such areas as increased support from our healthcare system for viewing and treating  psychiatric illnesses as valid health problems. Although Ted Kennedy was also articulate and passionate on many matters, particularly health care, Wellstone’s focus made him standout as a special protector of the poor and dispossessed.    He was passionately sincere and a populist supporter of a progressive legislative agenda. He reproduced Robert Kennedy’s trip into Appalachia to demonstrate than malnourishment among the poor in that region was just as bad as when Kennedy had visited there some forty years earlier.

When Wellstone spoke, the entire senate listened and he became identified as the conscience of the Senate. His oratorical capacity to articulate his point of view was almost obligatory listening for all Senators, from both sides of the isle, even though many felt the same way they had felt about Hubert Humphrey many years earlier–that he talked too much. However, Wellstone’s absence since 2002 has reduced the Senate to a much more contentious, confrontational and highly polarized body that had, at one time,  seemed far more focused and sensitive when Wellstone’s voice was among them. Many liberal Senators, such has Harkin of Iowa,  were shocked and wept openly when Wellstone died; no one has quite replaced him.  Although the DFL (Democratic-Farm-Labor) party in Minnesota tried to quickly insert Walter Mondale to oppose Norm Coleman in the closing days of the 2002 Minnesota Senate campaign, immediately after Wellstone’s death, voters were disgusted at the apparent attempt to turn Wellstone’s public eulogy into a political event promoting Mondale’s candidacy (Franken, who attended the event, pointed out in his book (see below) that painting the Wellstone memorial service as a political event was right-wing propaganda and those that promoted this idea (Peggy Noonan as one example) were not even in attendance). Propaganda or no, Wellstone’s Senate seat was filled by Republican Norm Coleman, former mayor of St. Paul and former Democrat, who would prove to be a right-wing apologist for GW Bush up and down the political spectrum.  This transition between Wellstone and Coleman in the span of a single Senate seat was an excursion in political philosophy and independence that was shocking in its operation and disgusting to see as a resident of Minnesota. Six years later, comedian Al Franken, a most unlikely candidate, won the DFL’s endorsement and the Democratic primary to run against Coleman, who was seeking his second term. Though one of the closest elections in Minnesota history, Franken was eventually declared the winner, after a massive, complex recount of the vote. The delay imposed by the long vote recount and court actions surrounding the election, meant that Franken’s appointment to the Senate was delayed and that he couldn’t enter in a timely fashion with the incoming congressional class from the 2008 election results. He was sworn in as U.S. Senator on July 7, 2009. He had been officially  declared the winner of the Minnesota Senate election by 312 votes.

When Franken joined the Senate, he was given the standard treatment for a junior Senator, but did manage to get a spot as the lowest ranking Senator on the Judiciary committee. However, no one knew what to make of him as a Senator. He had been a famous comedian on Saturday Night Live. He had migrated to have his own syndicated radio show, Air America and had written five best-selling books, one of which seemed to frame his evolving political personality in his 2003 book “Lies and the lying liars who tell them: a Fair and Balanced Look at the Right,” in which he took on the main right-wing pundits, such as O’Reilly, Hannity and Colmes, Paul Gigot, the editorial section of the Wall Street Journal and many others. This was not just a simple pundit’s book; it was one aided by a group of Harvard students who helped chase down articles, such that the book included references as if it was a book of scholarship and research, containing  notes for each chapter in the back of the book. Despite the title, the book was a “cut above.” It served to help Franken establish a kind of demarcation line between himself and those he criticized and made fun of.  He was sued by Fox News for his use of “Fair and Balanced” which they claimed was a registered trademark of the O’Reilly show. A federal judge dismissed the suit saying that it was without merit. In the meantime, very slowly, but with deliberate intent, Franken began speaking out about how the court system had violated judicial restraints by making recent landmark decisions which exceeded their authority under our constitution.

I had expected that when Wellstone died, Russ Feingold of Wisconsin would assume the leadership role for the progressive movement in the Senate and become the movement’s principal leader.  But, for reasons unclear to me, Feingold has been muffled, more so since Obama was elected. It now seems increasingly clear that the leadership role for progressive arguments and political philosophy will fall into the hands of someone other than Feingold, perhaps Al Franken. Franken is ambitious, very smart, with a good sense of humor and a person who strikes a little bit of fear in the hearts of every other Republican Senator who feels that they might become the target of one of Franken’s jokes. Given the nature of political reporting these days, a timely  joke or label from Franken about a Republican Senator might have the sticking power of super glue. The modern press, robbed of creativity of its own as a self-inflicted scarring wound,  loves to latch on to little phrases and descriptions so they don’t actually have to write about news, rather than cite quips.  Franken still has a long way to go before we can pronounce him the “Lion of the Senate,” but his comfort zone for this kind of leadership is rapidly growing as he gains experience and grows in reputation. It is quite amazing to me that no one in the mainstream media detected the separation that Franken established between himself and all other Senators on the Judiciary committee during the Kagan hearings. To me this separation was self-evident and full of substance. Those committee meetings will never be the same–their discourse has been irreversibly elevated.  Franken has not qiute finished a full year as a junior Senator, but there is no doubt that his voice will be heard more often as he has quickly become the most fascinating of all members of the Senate. To attach trivial descriptions to members of the Republican opposition, ones that will stick with the press is all that will be required for the press to begin talking about them as if their arguments and actions are indeed trivial.

RFM