Ben Sasse and Schoolhouse Rock

Regardless of your take on the Brett Kavanaugh nomination, this is a brilliant analysis and denunciation of the current state of affairs in American politics by Ben Sasse.

I managed to find a service to transcribe it for me. I gave it the once-over, so it should be pretty accurate, but it is by no means perfect. Should be, as they say, close enough for government work. 😉

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 hearing 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 as substitute political battle ground 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 [in?] 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 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 were 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 defer 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 fight 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 do 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 19, 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 making 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’d go home and we pretend we make laws. No, we don’t. We write giant pieces of legislation — 1,200 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. 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 was even worse. Uh, 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 this new 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, 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 tiddle 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 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 longterm 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. And 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 to make 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 know that they have power over. All the power right now or almost all the power right now happens offstage, 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 battle ground. 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 hearing started with 90 minutes of theatrics that are preplanned with certain members of the other side here, it shows us a system that is wildly out of whack and thus the 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 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’ absence, and we needed to a Judiciary that tries to apply written laws to facts in 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. This is why we talk about an independent Judiciary. This is why they were ropes. This is why we shouldn’t talk about Republican and Democratic judges and justices. This is why we say justice is blind. This is why we give judges lifetime tenure, and this is why this is the last job 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 marked irrelevant and set it aside every morning when he puts on the black robe. 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 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 Kavanuagh doesn’t hate women and children. Judge Kavanuagh 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 were revealed to me it’s a dissatisfaction — I think he would argue with Constitutionally compelled dissatisfaction — with power-hungry executive branch bureaucrats doing our job when we fail 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 the Judge Cavanaugh’s ready to do his job. The question for us is whether we’re ready to do our job.