Sen. Ben Sasse’s School House Rock Speech

Senator Ben Sasse at the Judge Kavanaugh confirmation hearing

The confirmation hearings for Supreme Court nominee Brett Kavanaugh have represented the culmination of every broken element of politics coming to a head. Protestors screaming to interrupt Republican Senators have only been placated by Democratic Senators demanding paperwork and due process in a matter over which they’ve already made their decisions, making that paperwork and process moot. Approximately 140 arrests have taken place in the three days of hearings, accomplishing little more than embarrassment for those responsible. The last three days on Capitol Hill have been nothing short of a circus; but this is expected — and by those in the Democratic Party collaborating to invite these hundreds of protestors to shout, scream, and cry, it is even intended.

Ironically, it is the legislature where the people should be protesting — but not as useful idiots of manipulative power-brokers within Congress. The design of the United States government was intended to limit and constrain power; but by the efforts of politicians and presidents across the last century, those laws which restrained power have been eroded to pave the road for oligarchy, plutocracy, and bureaucracy which serves to subjugate, not serve. In the course of this week’s hearings, one senator grew tired of the side show before him, and decided to use his time to address the brokenness of the system. Whether you are a proponent or opponent of government, Republican, Democrat, or otherwise, Sen. Ben Sasse’s words need to be heard for the powerful criticism they represent of our government as a whole.

It’s predictable that every confirmation hearing now is going to be an 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. Third consequence is that this transfer of power means the people yearn for a place where politics can 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 power 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 a Supreme Court confirmation hearing, we’re tempted to start with Article III (Article III is 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 Legislatures; 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 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 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 that 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 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.

So that brings us to our 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 1930’s and ramping up since the 1960’s, 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 in our government, or don’t know about their government are the places where most actual policy-making, kind of in a way law-making, is happening right now. This is not what School House Rock says. There’s no verse of School House 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, we pretend like we make laws; no we don’t. We write giant pieces of legislation — twelve hundred pages, fifteen hundred 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 and 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 it’s work. And the House is even worse — I don’t really believe that, it just seemed like I need to unite us in some way.

So, I admit that there are rational arguments one could make for the stew 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, where most of us in Congress don’t know much of anything about technical matters, for sure, and 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 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 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. So at the end of the day, a lot of the power delegation that happens from this branch is because the Congress has decided to self-neuter.

Well guess what? The important thing isn’t whether or not the Congress has lame jobs, the important thing is that when the 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 that makes Nebraskans’ lives really difficult, which happens to farmers and ranchers in Nebraska, who do they protest to? Where do they go? How do they navigate the complexity and the thicket of all the lobbyists in this town, to do Executive agency lobbying? They can’t. And so what happens is, they don’t have any ability to speak out and to fire people through an election. And so ultimately, when the Congress is neutered, when the administrative State grows, when there is this fourth branch of government, it makes it harder and harder for the concerns of citizens to be represented and articulated by people that the people now that they have power over. All the power right now, or almost all the power right now, happens off-stage and that leaves a lot of people wondering who’s looking out for me.

And that brings us to the third point. The Supreme Court becomes our substitute political battleground. It’s only nine people, you can know them, you can demonize them, you can try to make them messiahs; but ultimately, because people can’t navigate their way through the bureaucracy, they turn to the Supreme Court, looking for politics. And knowing that our elected officials no longer care enough to do the hard work of reasoning through the places where we differ and deciding to shroud our power at times, it means that we look for nine Justices to be super-legislators. We look for nine Justices to try to right the wrongs from other places in the process. When people talk about wanting to have empathy from their Justices, this is what they’re talking about. They’re talking about trying to make the Justices do something that the Congress refuses to do, as it constantly abdicates its responsibility. The hyperventilating that we see in this process, and the way that today’s hearings started with 90 minutes of theatrics that are pre-planned with certain members of the other side, here, it shows us a system that is wildly out-of-whack.

And thus, a fourth and final point. 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 the balance of powers. We need School House Rock back, we need a Congress that writes laws and stands before the people and suffers the consequences, and gets to go back to our own Mt Vernon if that is 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’ absence — and we need a Judiciary that tries to apply written laws 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, and four years in the Executive branch — can be fired because the Justices and the judges, the people who serve America’s people by wearing the black robes; they’re insulated from politics. This is why we talk about an independent Judiciary. This is why they wear robes. This is why we shouldn’t talk about Republican and Democratic Justices and judges. This is why we say “Justice is Blind.” This is why we give judges lifetime tenure, and this is why this is the last interview Brett Kavanaugh will ever have — because he’s going to a job where he’s not supposed to be a super-legislator.

So the question before us today is not, “What does Brett Kavanaugh think, 11 years ago on some policy matter,” the question before us is whether or not he has the temperament and the character to take his policy views and his political preferences and put them in a box labelled “irrelevant,” and set them aside every morning when he puts on the black robe. The question is whether or not he has the temperament and character to do that; if you don’t think he does, vote no, but if you think he does, stop 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.

Contrary to the Onion-like smears that we hear outside, Judge Kavanaugh doesn’t hate women and children. Judge Kavanaugh doesn’t lust after dirty water and stinky air. No, looking at his record, it seems to me that what he actually dislikes are legislators that are too lazy and too risk-averse to do our actual jobs. It seems to me that if you read his 300-plus opinions, what his opinions reveal to me is a dissatisfaction, an acute, he would argue, a Constitutionally-compelled dissatisfaction with power-hungry Executive branch bureaucrats doing our job when we failed to do it. And in this view, I think he’s aligned with the Founders, for our Constitution places power not in the hands of this city’s bureaucracy, which can’t be fired, but our Constitution places the policy-making power in the 535 of our hands because the voters can hire and fire us. And if the voters are going to retain their power, they need a Legislature that’s responsive to politics, not a Judiciary that’s responsive to politics.

It seems to me that Judge Kavanaugh is ready to do his job; the question for us is whether we’re ready to do our job. 

Sen. Ben Sasse (R-NE) [Source]

Government is power; the Founders knew this, and attempted to create a system by which power can be checked and mitigated, observed and managed by the people. It often seems like this has been forgotten in DC, but Sen. Sasse’s words serve as a powerful reminder to those who were elected by people who believe in the possibility of a government of, for, and by the people. In the absence of the possibility of a true Stateless society, we can only hope and pray that this reminder is heeded, less the United States become little more than an endlessly corrupt caricature of its past self, irredeemable and absorbed by electoral narcissism. For down that road, we already know what will come: with the barbarians standing already at the gates, the Spectre of Rome’s mistakes awaits us.