Political columnists are writing a lot this week about the confirmation hearings for Supreme Court nominee Brett M. Kavanaugh. Too bad the job didn’t fall to writers better suited to the task: theater critics.
Never have more dramatics been staged to less effect. There’s no question that Kavanaugh will be confirmed, because Republicans have control of the Senate; there is little question that if they lost control, confirmation of any Supreme Court nominees from President Trump would cease. These hearings are held for the same reason that Civil War reenactors hold their mock battles: They look rather grand, and they connect us to our history.
Despite the hearings’ essentially decorative function, left-wing activists are treating them as a life-or-death struggle against the conservative nominee. Protesters scream from the back of the room and are removed, to be replaced by others who scream in their turn, to equally little avail. Meanwhile, the senators offer up Republican softballs and Democratic diatribes. On the first day of the hearings, Sen. Ben Sasse (R-Neb.) used his speaking time to decry the essential emptiness of all this activity and to point to a better way.
In a blistering 12-minute lecture, the former university president laid out the primary reason that Supreme Court confirmations have degenerated into hollow political theater: Congress has abdicated its role as the primary lawmaking body, delegating its constitutional authority to the unelected bureaucrats of executive-branch agencies and to the priest-kings of the Supreme Court.
“People yearn for a place where politics actually can be done,” Sasse said. “When we don’t do a lot of big actual political debating here, we transfer it to the Supreme Court.”
As the good senator noted, it’s a fundamentally unhealthy sign when protests are held outside courts, not legislatures. But practically speaking, the protesters are in the right place. Courts in the United States for decades have increasingly arrogated power over the most sensitive policy questions: integration, abortion, gun rights, free speech and same-sex marriage. In the meantime, political analyst Yuval Levin argues, members of Congress have increasingly shirked their constitutional responsibilities.
They remain as ambitious as politicians ever were, Levin wrote in the July/August issue of Commentary magazine, but their ambition is no longer for legislative power. Instead, they strive “for a prominent role in the theater of our national politics.” And Congress has become their stage, “a way to raise their profile, to become celebrities.” Major legislation increasingly happens only when there is a presidential agenda to direct it, and even then, the result is vague laws that leave the big decisions to regulatory agencies and courts. While complaints about “activist judges” aren’t totally unfounded, the truth is that courts are often forced to fill the enormous gaps left by a timid Congress.
As Sasse noted at the Kavanaugh hearing, congressional inaction is a good way to get reelected: You avoid making unpopular decisions that activist groups can use to mobilize voter anger. “It’s not a very good life,” he told his colleagues, “but it’s a pretty good strategy for incumbency.”
It’s also not a very good way to run a republic. Exiling important decisions beyond public accountability, or control, destroys the political legitimacy upon which democratic government depends. Which is why the protesters against Kavanaugh have been screaming so loudly.
“The solution,” Sasse concluded, “is not to try to find judges who will be policymakers. 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 a Congress that writes laws and then stands before the people and suffers the consequences.”
Sasse has precisely diagnosed the problem. But American politics will not recover unless the doctor is prepared to take his own advice.
For Ben Sasse, ironically, is one of the most prominent examples of what Levin is talking about: The senator from Nebraska has become well-known for his public statements on character and constitutional order while doing relatively little on the legislative front. Since entering the Senate in 2015, Sasse has sponsored only 16 bills. Compare that with the record of two other Republicans from his class: Tom Cotton of Arkansas, with 44 bills introduced, and Joni Ernst of Iowa, with 42.
Sasse’s limited legislative contribution is a great disappointment precisely because his vision of a more honorable and constitutionally grounded politics is so appealing. Simply exhorting his peers isn’t going to make that vision a reality. What’s needed is tireless and often thankless work in the legislative trenches.
Few in Congress seem interested in doing that kind of work. Until that changes, we’ll be stuck with third-rate television dramas like these Senate confirmation hearings. “You make the laws,” Kavanaugh told Sen. Orrin G. Hatch (R-Utah) on Wednesday morning. How nice it would be if that were true.