Sen. Ben Sasse: Supreme Court Hearings Must Not Become "Substitute Political Battleground," Better Off Watching "Schoolhouse Rock"


Rhetoric claiming Brett Kavanaugh “hates women, hates children” is indicative of an overly political Supreme Court nomination process, Sen. Ben Sasse said Tuesday in his opening statement at Kavanaugh’s Supreme Court confirmation hearing.

"We can and should do better than this," Sasse said. "It is predictable that every confirmation hearing now is going to be an overblown politicized circus, and it is because we've accepted a new theory about how our three branches of government should work, and in particular the judiciary."

"What Supreme Court confirmation hearings should be is an opportunity to go back and do 'Schoolhouse Rock' civics for our kids," he added. "We should be talking about how a bill becomes a law, what the job of article two is, and what the job of article three is."

"So let's try, just a little bit," he asked. "How did we get here, and how can we fix it?"

SEN. BEN SASSE: It's pretty obvious to most people going about their work today that the deranged comments actually don't have anything to do with you. So we should figure out why do we talk like this about Supreme Court nominations now. There's a bunch that's atypical in the last 19, 20 months in America.

Senator Klobuchar is right; the comments from the White House yesterday about trying to politicize the Department of Justice -- they were wrong, and they should be condemned, and my guess is Brett Kavanaugh would condemn them. But really the reason these hearings don't work is not because of Donald Trump. It's not because of anything in the last 20 months.

These confirmation hearings haven't worked for 31 years in America. People are going to pretend that Americans have no historical memory and supposedly there haven't been screaming protests saying women are going to die at every hearing for decades -- but this has been happening since Robert Bork. This is a 31-year tradition; there's nothing really new the last 18 months.

So, the fact that the hysteria has nothing to do with you means that we should ask, what's the hysteria coming from? The hysteria around Supreme Court confirmation hearings is coming from the fact that we have a fundamental misunderstanding of the role of the Supreme Court in American life now. Our political commentary talks about the Supreme Court like they're people wearing red and blue jerseys; that's a really dangerous thing.

And, by the way, if they had red and blue jerseys I would welcome my colleagues to introduce the legislation that ends lifetime tenure for the judiciary because if they're just politicians then the people should have power and they shouldn't have lifetime appointments. So until you introduce that legislation I don't believe you really want the Supreme Court to be a politicized body -- though that's the way we constantly talk about it now.

We can, and we should do better than this. It's predictable that every confirmation hearing now is going to be overblown politicized circus and it's because we've excepted a new theory about how our three branches of government should work and in particular how the judiciary should work.

What Supreme Court confirmation hearings should be about is an opportunity to go back and do Schoolhouse Rock civics for our kids. We should be talking about how a bill becomes a law and what the job of Article II is and what the job of Article III is.

So let's try just a little bit. How did we get here and how can we fix it? I want to make just four brief points.

Number one -- in our system the legislative branch is supposed to be the center of our politics. Number two -- it's not. Why not? Because for the last century and increasing by the decade right now, more and more legislative authority is delegated to the executive branch every year. Both parties do it. The legislature is impotent, the legislature is weak, and most people here want their jobs more than they really want to do legislative work and so they punt most of the work to the next branch.

Third consequence is that this transfer of power means the people yearn for a place where politics can actually be done and when we don't do a lot of big actual political debating here, we transfer it to the Supreme Court and that's why the Supreme Court is increasingly a substitute political battleground in America. It is not healthy, but it is what happens and it's something that our founders wouldn't be able to make any sense of.

And fourth and finally, we badly need to restore the proper duties and the balance of power from our constitutional system.

So, point one; the legislative branch is supposed to be the locus of our politics, properly understood. Since we're here in this room today because this is a Supreme Court confirmation hearing we're tempted to start with Article III but really, we need Article III as the part of the Constitution that sets up the judiciary. We really should be starting with Article I, which is us. What is the legislature's job?

The constitution's drafters began with the legislature. These are -- these are equal branches but Article I comes first for a reason and that's because policymaking is supposed to be done in the body that makes laws. That means that this is supposed to be the institution dedicated to political fights.

If we see lots and lots of protests in front of the Supreme Court that's a pretty good litmus test barometer of the fact that our Republic isn't healthy, because people shouldn't be thinking they -- or protesting in front of the Supreme Court; they should be protesting in front of this body.

The legislature is designed to be controversial, noisy, sometimes even rowdy because making laws means we have to hash out the reality that we don't all agree. Government is about power. Government is not just another word for things we do together. The reason we have limited government in America is because we believe in freedom. We believe in souls. We believe in persuasion. We believe in love -- and those things aren't done by power.

But the government acts by power and since the government acts by power we should be reticent to use power. And so it means when you differ about power you have to have a debate and this institution is supposed to be dedicated to debate and should be based on the premise that we know since we don't all agree we should try to constrain that power just a little bit but then we should fight about it and have a vote in front of the American people and then what happens?

The people get to decide whether they want to hire us or fire us; they don't have to hire us again. This body is the political branch where policymaking fights should happen and if we are the easiest people to fire it means the only way that people can maintain power in our system is if almost all the politicized decisions happen here -- not in Article II or Article III.

So, that brings us to a second point. How did we get to a place where the legislature decided to give away its power?

We've been doing it for a long time. Over the course of the last century but especially since the 1930s and then ramping up since the 1960s a whole lot of the responsibility in this body has been kicked to a bunch of alphabet soup bureaucracies. All the acronyms that people know about their government or don't know about their government are the places where most actual policymaking -- kind of in a way, lawmaking -- is happening right now.

This is not what Schoolhouse Rock says. There's no verse of Schoolhouse Rock that says give a whole bunch of power to the alphabet soup agencies and let them decide what the government's decision should be for the people, because the people don't have any way to fire the bureaucrats. And so what we mostly do around this body is not pass laws. What we mostly do is decide to give permission to the Secretary or the administrator of bureaucracy X, Y, or Z to make law-like regulations; that's mostly what we do here.

We go home, and we pretend we make laws; no, we don't. We write giant pieces of legislation -- 1,200 pages, 1,500 pages long that people haven't read -- filled with all these terms that are undefined and we say the secretary of such and such shall promulgate rules that do the rest of our dang jobs.

That's why there's so many fights about the executive branch and about the judiciary, because this body rarely finishes its work -- and the House is even worse. I don't really believe that; it just seemed like you needed to try to unite us in some way.

So, I admit that there are rational arguments that one could make for the new system. That Congress can't manage all the nitty-gritty details of everything about modern government and this system tries to give power and control to experts in their fields, where most of us in Congress don't know much of anything or -- about technical matters for sure but you could also impugn our wisdom if you want -- but when you're talking about technical, complicated matters, it's true that the Congress would have a hard time sorting out every final dot and tittle about every detail.

But the real reason at the end of the day that this institution punts most of its power to executive-branch agencies is because it's a convenient way for legislators to have to -- to be able to avoid taking responsibility for controversial and often unpopular decisions.

If people want to get reelected over and over again and that's your highest goal, if your biggest long-term thought around here is about your own incumbency, then actually giving away your power is a pretty good strategy. It's not a very good life but it's a pretty good strategy for incumbency.

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