Ka­vanaugh shouldn’t mat­ter this much

The Star Democrat - - OPINION -

The pub­lic should not need to fret this much about one Supreme Court nom­i­nee.

No one ex­plains this bet­ter than Sen. Ben Sasse, R-Neb. A civic scholar and for­mer univer­sity pres­i­dent, Sasse earned a doc­tor­ate in his­tory from Yale and a bach­e­lor’s in gov­ern­ment from Har­vard. None­the­less, he cites “School­house Rock!” when ex­plain­ing the proper roles of the fed­eral gov­ern­ment’s ex­ec­u­tive, leg­isla­tive and ju­di­cial branches.

“The leg­isla­tive branch is sup­posed to be the cen­ter of our pol­i­tics,” Sasse said while ad­mon­ish­ing his col­leagues dur­ing Ka­vanaugh’s con­fir­ma­tion hear­ing last Tues­day.

“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,” he said.

Sasse ex­plained how mem­bers of Congress ob­sess with re­main­ing in of­fice. As such, they avoid gov­ern­ing. In­stead, they em­power sec­re­taries and ad­min­is­tra­tors of fed­eral bu­reau­cra­cies to en­act and en­force “law­like” reg­u­la­tions.

In do­ing this, Congress el­e­vates the author­ity of the pres­i­dent, who ap­points fed­eral ad­min­is­tra­tors, and the ju­di­cial branch.

“It’s a con­ve­nient way for leg­is­la­tors to avoid tak­ing re­spon­si­bil­ity for con­tro­ver­sial and of­ten un­pop­u­lar de­ci­sions. If your big­gest long-term thought around here is your own in­cum­bency, then 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.

“There’s no­body in Ne­braska, Min­nesota, or Delaware, who elected the deputy as­sis­tant ad­min­is­tra­tor of plant quar­an­tine at the USDA,” Sasse said. “And yet if the as­sis­tant ad­min­is­tra­tor of plant quar­an­tine does some­thing to make Ne­braska farm­ers lives dif­fi­cult, who do they protest to? Where do they go?”

“Al­most all the power right now hap­pens off-stage. The Supreme Court be­comes our sub­sti­tute po­lit­i­cal bat­tle­ground. It’s only nine peo­ple. You can know them, de­mo­nize them, try to make them mes­si­ahs. But ul­ti­mately, be­cause peo­ple can’t nav­i­gate through the bu­reau­cracy, they turn to the Supreme Court look­ing for pol­i­tics.

“There is no verse of ‘School­house Rock!’ that says give a whole bunch of power to the al­pha­bet soup agen­cies and let them de­cide what the gov­ern­ment’s de­ci­sion should be for the peo­ple, be­cause the peo­ple don’t have any way to fire the bu­reau­crats... What we mostly do around this body is not pass laws... That’s why there’s so many fights about the ex­ec­u­tive branch and the ju­di­ciary be­cause this body rarely fin­ishes its work.

“The so­lu­tion is to re­store a proper con­sti­tu­tional or­der with the 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... 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’s ab­sence. And we need a ju­di­ciary that tries to ap­ply writ­ten laws to facts in cases that are ac­tu­ally be­fore it.”

Sasse ex­plained how the framers tried to in­su­late judges from pol­i­tics.

“This is why they wear robes,” Sasse said. “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.”

The only mean­ing­ful ques­tion for Ka­vanaugh should be this: “Does he have 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. If you don’t think he does, vote no. But if you think he does, stop the cha­rades,” Sasse im­plored.

Stop the games and lead. Gov­ern, as the founders in­tended, and re­store the bal­ance of power that made this countr y great.

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