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:

  1. Congress is set up to be the most po­lit­i­cal branch. “This is sup­posed to be the in­sti­tu­tion dedi­cat­ed to po­lit­i­cal fights,” Sasse said.
  2. 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. 
  3. 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." 
  4. 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."