The new Al Franken, Part Two

In addition to questioning Alex Azar during the confirmation hearing of the Senate Health, Education, Labor, and Pensions Committee yesterday, Al Franken made it to the Judiciary Committee to question court of appeals nominees David Stras and Kyle Duncan. The new Al Franken was on display in that proceeding too.

From the old Al Franken, one would have expected fireworks. After all, Franken held up Stras’ nomination for months by not returning his blue slip.

John Kennedy did the same thing to Kyle Duncan, and his questioning of Duncan was lively (though civil). From the old Al Franken, one would have expected parallel conduct from Franken, minus the civility. Instead, we got another sleep-inducing performance.

Franken’s first round of questioning begins at around the 2:22 mark of the hearing video. He was marginally more chipper than at the Azar hearing and began with an attempt at mild humor.

Once the questioning started, Franken read from a paper prepared (I assume) by his staff. First, he asked Stras whether he agrees with the views of Justice Thomas (for whom he clerked) on race-based affirmative action. Stras said he couldn’t answer because, if confirmed, he might well have to rule in cases that raise that issue. Franken accepted the answer.

Next, he asked Stras about a post he once wrote for ScotusBlog regarding the Parents Involved in Community Schools v. Seattle School District No. 1 case. It produced a plurality opinion by the Court’s conservative Justices (written by the Chief Justice) and a concurring opinion by Justice Kennedy. Kennedy wrote to say that, in his view, the state has a compelling interest in pursuing racial diversity in public schools.

In his blog post, Stras said it would be “especially dangerous” for lower courts to apply Kennedy’s concurrence, as opposed to the plurality opinion. Franken wanted to know whether Stras still thinks this would be dangerous, and whether he agrees with Kennedy that the state has a compelling interest in pursuing racial diversity in public schools.

Stras didn’t say whether he agrees with Kennedy. He explained that in his post he was dealing with the narrow issue of how to read Supreme Court precedent. A decision on that subject had just come down that he thought cut against reading Kennedy’s opinion as precedent. That’s why he wrote that it would dangerous for lower courts to do so.

This answer stopped Franken in his tracks. In the video, he says nothing in response. He just looks around blankly. Finally, the next Senator (Kennedy) begins asking questions.

Stras sits on the Minnesota Supreme Court. He has written many opinions. The best Franken could come up with to attack the man whose nomination he blocked for months was a blog post on a technical issue (what constitutes precedent when the Supreme Court divides a certain way) that Franken appears not to understand.

Franken had a second round (at about 2:36). This time he explained that his opposition to Stras was nothing personal. It was about process.

It bothers Franken that Stas’ name appeared on candidate Trump’s list of possible Supreme Court nominees. The list was prepared with the help of the Heritage Foundation and the Federalist Society.

Guess what. These are conservative organizations.

Franken did not explain what’s wrong with a candidate consulting with an organization whose views align with his (as many of us hoped is the case here) about potential Supreme Court nominees. Instead, he asked Stras if he had talked to folks at the Federalist Society or the Heritage Foundation about being on Trump’s list or being selected to the Supreme Court.

Stras said he has friends in the Federalist Society that he talks to, but did not talk about being on the list. Nor did he make any commitments to anyone about how he might rule as a court of appeals judge or Supreme Court Justice.

That was it. Franken thanked everyone and the hearing ended.

He had failed to lay a glove on the man whose nomination he held up. He had failed to lay a glove on the “process.” It was another lame, tame, subdued performance from the new Al Franken.

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