Our Representative, Representative Democracy

In the Senate confirmation hearing for Brett Kavanaugh yesterday, Senator Ben Sasse (R-NE) gave an amazingly honest speech in his opening comments. In essence, Sass argued that congress is inept and does not do its job, and that is why the Kavanaugh hearing is so ugly and personal -- reality detached in Sasse’s opinion. Sasse argued that Supreme Court (SC) judges are not partisans and if they are, they should not have lifetime appointments. As long as Americans misunderstand the role of the SC, confirmation hearings like this will be an “overblown, politicized circus.”

He went on to argue that congress, not the SC or the executive branch, should be the center of American politics, but it is not. The reason that congress is not the center of American politics is because for the last century and increasingly in recent decades, congress has abdicated its legislation role to the executive branch and executive agencies that write regulations. In essence, regulation writing is where a lot of policy making happens.

Congress, not the supreme court or the executive branch, should be where policy is made. That would give voters a chance to hire or fire their representatives, but congress has punted policy making elsewhere. As a result, the American people think that policy making is going on in the SC, and therefore we have this bitter confirmation hearing over judge Kavanaugh. Because congress is not doing its job, political battles and policy making are not being fought in congress, and that leads the SC to become a key political battleground.

Sasse: “. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is 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 and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”

Sasse goes on to argue that (1) the technical complexity in modern laws is simply too much for congress to handle and real experts are necessary, but (2) the main reason congress punts so much of its job is to avoid taking responsibility for making controversial and unpopular decisions, so (3) if a legislator’s highest goal is re-election, punting responsibility allows people in congress to side-step the political heat and get re-elected. He asserts that if re-election is your highest goal, then giving away your power is “actually pretty good strategy. . . . . congress has decided to self-neuter. . . . . The important thing is that when congress neuters itself, and gives power to an unaccountable 4th branch of government [executive agencies], it means the people are cut out of the process.”

Sasse points out that when a executive agency passes a rule that makes life difficult, affected people can’t navigate the complexity and thicket of lobbyists to do executive agency lobbying. He asserts that almost all the power is now exerted off stage by unelected bureaucrats. Voters have nowhere to go except the SC to seek political accountability. Under the circumstances, the SC has become a “substitute political battleground. . . . . We look for nine justices to be super legislators. We look to nine justices to try to right the wrongs from other places in the process.”

To fix the mess, Sasse proposes a return to a proper constitutional distribution of power, which in his view, would largely remove the SC as a political battleground and shift it to congress where it belongs.

Some observations:

1. Sasse is right about re-election being the highest goal. Enough has leaked out elsewhere over the years for that to be clear, but hearing it this bluntly and explicitly is almost a miracle. He is also right that the legislation congress writes is sloppy, undefined, and mostly unread. It is also mostly not understood.

2. Sasse may be right about the balance of power being wrong, but there is no chance that our ossified, self-centered two-party system is capable of moving to reform itself over time so that the focus of politics shifts to the congress. That is too threatening to incumbency. Itv simply cannot happen with out two-party system and its corrupt system of financing.

3. Sasse thinks Kavanaugh will be a great SC justice, arguing that, contrary to criticisms, he does not hate women and children or want polluted air or water for the American people. Nonetheless, Kavanaugh will vote in ways that arguably can lead to, or maintain, those situations to some extent. As much as Sasse believes that Kavanaugh will not be a partisan, it is clear that Kavanaugh will be one. Basically, Sasse has argued persuasively that SC justices should not be judges for life (a point I have no opinion about), regardless of how non-partisan they pretend to be.

4. Sasse conveniently ignores one key aspect of Kavanaugh’s legal thinking. Kavanaugh has moved from being a judge who believed the rule of law should apply to a sitting president to one who is uncomfortably close to advocating almost absolute immunity from the law for a sitting president. When Clinton was in power, Kavanaugh advocated not one shred of mercy because the president was not above the rule of law. But in his time in the Bush administration, Kavanaugh did a 180-degree flip and now thinks presidents should be mostly immune from lawsuits and subpoenas. That arguably is out of synch with Sasse’s argument for a ‘proper’ balance of power.

As good as is rhetoric is, Sasse is not persuasive when it comes to the reality of a partisan judiciary or his own assessment of Kavanaugh’s alignment of beliefs with his own. The SC really is a battleground and that is not going to change any time soon. Judges have to be viewed as partisan players because that is what they are to a significant extent. Justice is partisan, and that is how most Americans seem to see this.

NOTE: Sasse is a radical right ideologue who wants to see many or most executive functions of the federal government mostly or completely eliminated. He is deeply antagonistic toward government in general.

B&B orig: 9/5/18