Sasse: 'The Congress Has Decided to Self-Neuter'

September 4, 2018

Sen. Ben Sasse (R., Neb.) said during Tuesday's confirmation hearing for Supreme Court nominee Brett Kavanaugh that Congress has decided to "self-neuter."

"At the end of the day, a lot of the power delegation that happens from this branch is because the Congress mass decided to self-neuter," Sasse said.

Sasse's comment came while giving his view on how the Supreme Court, in lieu of Congress, has become our "substitute political battle ground." He criticized people who have politicized the judicial branch—and Congress for enabling the shift—because they expect judges to implement policies the legislative body has been unable or unwilling to pass.

"We have a fundamental misunderstanding of the role of the Supreme Court in American life now," Sasse said. "Our political commentary talks about the Supreme Court like there are people wearing red and blue jerseys. That's a really dangerous thing. And by the way, if they have 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."

The senator gave a more in-depth overview of why the Supreme Court nominations have become so politicized and how the process might be fixed.

It's predictable that every confirmation hearing now is going to be overblown, politicized circus. And it's because we've accepted 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 School House 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.

[The] 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.

Sasse further explained why the legislature, not the high court, should be where political fights are hashed out.

"The Constitution's drafters began with the legislature—these are equal branches, but Article I comes first for a reason, and that's because policy making is supposed to be done in the body that makes laws. That means this is supposed to be the institution dedicated to political fights ... The people get to decide whether to hire us or fire us. They don't have to hire us again. This body is the political branch where policy making fights should happen. And if we are the easiest people to fire, it means the only way the people can maintain power in our system is if almost all the politicized decisions happen here, not in Article II or Article III," he said.

He said members of Congress prefer giving up their power because it takes away the burden of responsibility.

"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 be able to avoid taking responsibility for controversial and often unpopular decisions. If people want to get re-elected 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," Sasse said. "It's not a very good life, but it's a pretty good strategy for incumbency."

Sasse said the question for senators is not what Kavanaugh's personal beliefs are on policy matters but if he has the temperament and character to rule on the law.

"So the question before us today is not what did Brett Kavanaugh think 11 years ago on some policy matter; the question before us is whether or not he has a temperament and the character to take his policy views and his political preferences and put them in a box marked irrelevant and set it aside every morning when he puts on the black robe," Sasse said. "The question is does he have the character and temperament to do that. If you don't think he does, vote no, but if you think he does, shop the charades. Because at the end of the day, I think all of us know that Brett Kavanaugh understands his job isn't to rewrite laws as he wishes they were; he understands that he's not being interviewed to be a super legislator; he understands that his job isn't to seek popularity. His job is to be fair and dispassionate. It is not to exercise empathy; it is to follow written laws."