|Senator Ben Sasse, opening remarks|
at the Kavanaugh confirmation hearings
screen shot from C-SPAN3
First, he made it clear that the hysteria surrounding a well-qualified judge with bipartisan support among his colleagues has nothing to do with Brett Kavanaugh. It has to do with a misunderstanding of—and a corruption of—the balance of power laid out in our Constitution.
This is not something new. He says,
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 protestors 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 new the last 18 months.
It's ideological, and it’s political. And unfortunately it's treated like team sports:
Our political commentary talks about the Supreme Court like they’re people wearing red and blue jerseys. That’s a really dangerous thing.
He suggests that a better use of these hearings would be to do some Schoolhouse Rock civics lessons for our kids, to give them the opportunity to understand our government better:
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 do we fix it?
And then he spends a little time going over some constitutional basics.
The Constitution’s drafters began with the legislature. 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 that our republic isn’t healthy. Because people shouldn’t be thinking of protesting in front of the Supreme Court; they should be protesting in front of this body.
The problem is that Congress (he refers to the legislative body using the general term Congress, comprised of the House and the Senate) has abdicated its responsibilities. The founders believed that the desire for power—generally a bad human trait, but nevertheless part of human nature—could be harnessed to have three separate but equal branches of government all jealously maintaining their power from overreach by the other branches. The founders would be surprised to see what has actually happened.
Here’s his description:
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 governance decisions 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 that we make laws. No, we don’t. We make giant pieces of legislation, 1200 pages, 1500 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.
|from Schoolhouse Rock video|
Three Ring Government
That’s why there are so many fights about the executive branch, and about the judiciary, because this body rarely finishes its work.
He admits there’s a rationale, flawed though it may be, for the regulatory system:
The 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, while 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 is more self-serving. Legislators don’t want to take responsibility for difficult or unpopular decisions.
If people want to get reelected over and over again, and that’s their 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.
In the abstract, maybe it doesn’t seem so awful. But it has real life consequences to the people. Sasse offers an example of his fellow Nebraskans:
When Congress neuters itself and gives power to an unaccountable fourth branch of government, it means the people are cut out of the process. There’s nobody in Nebraska, there’s nobody in Minnesota or Delaware who elected the Deputy Assistant Administrator of Plant Quarantine at the USDA. And yet, if the Deputy Assistant Administrator of Plant Quarantine does something to make Nebraskans’ lives really difficult—which happens to farmers and ranchers in Nebraska—who do they protest to?
As the senator points out,
Almost all the power right now happens offstage. And that leaves a lot of people wondering, “Who’s looking out for me?”
He does offer a solution. It’s one of those simple but not easy things, but it beats what we’ve been doing:
The solution here is not to try to find judges who will be policy makers. The solution is not to try to turn the Supreme Court into an election battle for TV. The solution is to restore a proper Constitutional order, with a balance of powers. We need Schoolhouse Rock back.
We need a Congress that writes laws and then stands before the people and suffers the consequences and gets to go back to our own Mount Vernon, if that’s what the electors decide. We need an executive branch that has a humble view of its job, as enforcing the law, not trying to write laws in the Congress’s absence. And we need a judiciary to trust to apply written law to facts and cases that are actually before it.
This is the elegant and the fair process that the founders created. It’s the process where the people who are elected—two and six years in this institution, four years in the executive branch—can be fired. Because the justices, and the judges, the men and women who serve America’s people by wearing black robes, they’re insulated from politics.
So, we need to stop playing the decades-long game of politics surrounding the Supreme Court. Maybe we can get that if Congress will take back its power. There are hints that that could happen. The rolling back of regulations is a start. Making sure any new legislation is simple, straightforward, and necessary, based on the proper role or the federal government would help.
And—as it appears is a possibility at last—we can have a majority on the Court that know the limits of their power and abide by the law, instead of making it up as they go.
If you’ve got a young person around who isn’t getting taught this kind of civics in school, share Senator Sasse’s lesson with them. The whole 15 minutes is below. And for younger kids, maybe you should look up some of those old Schoolhouse Rock videos online. It’s amazing how the tunes—and the messages they carried—can come back decades later.