The Brett Kavanaugh Supreme Court hearings are ugly, there's no arguing that. Democrats are trying to end the hearing before it gets started. There are repeated interruptions by protesters. Republicans are accusing Democrats of the equivalent of contempt of court and protesters of “mob rule.” It's a manifestation of the hyperpoliticized environment we find ourselves in.
And in the middle of all this, one senator on the Judiciary Committee delivered a compelling theory about why everything about this Kavanaugh hearing is a mess.
In a word: Congress. In a few more words: Congress is abdicating its duty to write laws, which leaves people to place their hopes in the judicial branch to try to get their problems solved.
"At the end of the day, a lot of the power delegation that happens from this branch is because Congress has decided to self-neuter,” said Sen. Ben Sasse (R-Neb.), who used his 10-minute opening statement in the Kavanaugh hearings to indict his 534 colleagues for the politicization of the judiciary.
Sasse's argument, which he broke down into four, professor-like bullet points, goes something like this:
- Congress is set up to be the most political branch. “This is supposed to be the institution dedicated to political fights,” Sasse said.
- But in the name of politics, lawmakers have decided to keep their jobs rather than take tough votes. “Most people here want their jobs more than they really want to do legislative work, and so they punt their legislative work to the next branch,” Sasse said.
- Because Congress often lets the executive branch write rules, and Americans aren't sure who in the government bureaucracy to talk to, that leaves Americans with no other place than the courts to turn to express their frustration with policies. And the Supreme Court, with its nine visible members, is a convenient outlet. Sasse: “This transfer of power means people yearn for a place where politics can be done, and when we don't do a lot of big political debate here, people transfer it to the Supreme Court. And that's why the Supreme Court is increasingly a substitute political battleground for America."
- Sasse's final point is one you can probably guess is coming by now: That this process needs to change. If Congress did more legislating, these Supreme Court nomination battles would get less political, he argues: “If we see lots and lots of protests in front of the Supreme Court, that's a pretty good barometer of the fact that our republic isn't healthy. They shouldn't be protesting in front of the Supreme Court, they should be protesting in front of this body.”
Could you accuse Sasse of being overly simplistic here? Sure. It's much easier when the cameras are rolling to say that Congress should do its job than it is to actually do the hardest parts of that job, like decide how much war power to give the president in intractable military conflicts, or whether to confront the president on separating families at the border.
But there are plenty of examples to at least back up Sasse's first point that Congress isn't doing its job to the fullest. Authorizing military force is a power the Constitution has given Congress that experts think Congress has abdicated over the past few years. President Barack Obama repeatedly asked Congress for a new outline of his war powers, and Congress never gave it to him. And despite Republican lawmakers disagreeing with President Trump on everything from tariffs to immigration to his deference to Russia and views on the rule of law, the Republican-controlled Senate has only once passed legislation in defiance of Trump: a bill forcing him to sign Russia sanctions.
The next connection Sasse makes also sounds logical. If Congress isn't doing its job governing the country, then people will (inappropriately) rely on the judicial branch to do it.
Whether that's an accurate diagnosis is up for debate, but Americans have been given plenty of reasons lately to think that the courts are the answer. In at least the past few presidencies, judges have been major players in whether a president's policies on immigration or health care fail or succeed.
Courts have played especially outsize roles in Trump's White House. When Trump unilaterally rolls out his most controversial policies — a travel ban, separating immigrant families at the border, banning transgender people from the military — they aren't challenged by Congress; they're being challenged by Democratic attorneys general, and they end up in the courts.
Trump has also helped politicize the judicial process, arguably against his own interests. He's suggested getting rid of an entire federal court in California that has vexed him on a number of issues. Just this past weekend, he suggested that the Department of Justice shouldn't be investigating Republican members of Congress so close to a midterm election where Republicans' power hangs in the balance.
This is far from the first time politics and the Supreme Court have clashed, of course. The clash just feels noticeably heightened right now, and with good reason.
For Democrats, a lot is on the line: a potential swing vote putting someone on the court whom the president handpicked, knowing that the Supreme Court could decide his fate in the Russian election interference investigation.
A lot is on the line for Republicans, too: They have a chance to put a conservative on the Supreme Court just months before midterm elections where their majorities in Congress are at stake.
All of this ensures that the rest of the week's hearings are going to be ugly, too.
To Sasse, it all stems from Congress failing to be ugly itself: “The question isn't whether Kavanaugh is ready to do his job, the question is whether we are ready to do our job."