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What Ben Sasse Got Right and Wrong at the Kavanaugh Hearings

Nebraska Sen. Ben Sasse’s opening remarks in the confirmation hearing for Supreme Court nominee Brett Kavanaugh won plaudits on both left and right. In his remarks Sasse discusses the politicization of the judicial confirmation process and of the judiciary more generally. He argues both phenomena arise from congressional abandonment of its legislative task over the last century—and specifically from delegating legislative authority to the executive branch. In essence, pushing legislative powers from Article 1 of the Constitution into Article 2’s executive branch has distorted the role of courts as established in Article 3.

To be sure, each separate claim is correct: The confirmation process and the judiciary have been politicized, and Congress has ceded legislative power to the executive branch. The hypothesized link between the two phenomena, that is, Sasse’s argument that the latter has caused the former, however, doesn’t quite work.

First, to praise. Sasse centers his remarks on Congress giving away its legislative power to the executive branch. While Sasse concedes “Congress would have a hard time sorting out every dot and tittle about every detail” required by modern policy-making (a thread his remarks do leave dangling), the real reason for the amount of congressional delegation to the executive branch, he says, is blame shifting. Legislators immunize themselves from constituent backlash against burdensome, if necessary, laws, by instead delegating decision-making to electorally unaccountable executive agencies. So far, so good. (Although I might push Sasse on blameshifting as the causal mechanism. But that is for another column.)

Yet while congressional delegation of legislative power to the executive branch is certainly its own constitutional and policy problem, what does the executive-legislative relationship have to do with the politicization of judicial confirmation and of the judiciary more generally?

Here is where Sasse’s argument doesn’t quite work. Sasse argues legislative delegation to the executive branch has transferred politics from Congress to the Supreme Court. Because “people yearn for a place where politics can actually be done,” and Congress has politically neutered itself, the confirmation process and the judiciary more generally have become politicized.

On the one hand, it isn’t clear why the judiciary would become politicized because the legislative branch transfers decision-making power to the executive branch. First, as an initial matter, Supreme Court decisions generating widespread political controversy don’t tend to be cases pertaining to oversight of administrative rulemaking, they are constitutional cases, particularly derived from the Court’s Fourteenth Amendment jurisprudence and the associated rights incorporated by that jurisprudence. Consider abortion, flag burning, prayer in school, and the like: none of these relate to Congress ceding its own power to the executive branch.

Further, while Chevron deference is a much contested doctrine these days, even among judges, nonetheless, courts have provided, and continue to provide, significant deference to administrative interpretation of congressional statutes. This depoliticizes judicial decision making in the sense of removing judges from second-guessing most policy decisions made by executive agencies. It is not clear the judiciary takes the rap for administrative decisions when Congress cedes its power to the bureaucracy.

Further, it’s unclear why voters would protest Supreme Court nominations when they object to administrative regulations. After all, angry constituents can protest in front of executive agencies just as easily as they can protest in front of the Supreme Court, and it is just as easy to protest at the confirmation hearing of executive appointees as it is to protest the confirmation hearing of a Supreme Court nominee.

All said, it is a good thing a U.S. Senator raised the delegation issue in a high-visibility venue. Sasse could have, and should have, raised it as its own critical, standalone constitutional issue without trying to shoehorn it in also to explain the protests at Kavanaugh’s hearings, let alone as a theory of judicial politicization more generally.

Reader Discussion

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on September 12, 2018 at 08:25:53 am

“In his remarks Sasse discusses the politicization of the judicial confirmation process and of the judiciary more generally. He argues both phenomena arise from congressional abandonment of its legislative task over the last century—and specifically from delegating legislative authority to the executive branch. In essence, pushing legislative powers from Article 1 of the Constitution into Article 2’s executive branch has distorted the role of courts as established in Article 3.”

It would be more accurate to state that both phenomena arise from the erroneous notion that private morality and public morality can serve in opposition to one another and are not complementary.

Catholics recognize there are no “private” relationships; every Catholic is Called to be “A Temple for The Holy Ghost”.

Sexual immorality and all impurity or covetousness, cannot coexist with Holiness; our Call to Holiness, has always been a call to be chaste in our thoughts, in our words, and in our deeds.

“When God Is denied”, by those who embrace sexual immorality and all impurity or covetousness, and thus sexually objectify the human person, human Dignity is denied, and disappears as we render onto Caesar, or ourselves, what belongs to God, The Most Holy And Undivided Blessed Trinity. (Treaty of Paris-Revolutionary War)

What we are in fact witnessing, is a new Revolutionary War, an attack on The Holy Ghost, and thus Salvational Love, God’s Gift of Grace and Mercy.

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Nancy
on September 12, 2018 at 14:31:08 pm

I am not certain that Kavanaugh is the best representative for ethics here, when it's clear that he lied under oath to Congress. Or does he get the Trump Exemption, where it's ok to have a sinner in charge as long as he hates poor people and minorities enough?

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excessivelyperky
on September 12, 2018 at 14:36:41 pm

Sasse was VERY good here. To avoid your critique, he could have talked about how the balancing tests favored by the modern (left leaning) court allow judges to make public policy. Justice Thomas' recent dissent in Whole Woman's Health v Hellerstedt is instructive on this:

“The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.”

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CJ Wolfe
on September 12, 2018 at 16:32:01 pm

"And to quote Lisa Blatt, a Supreme Court attorney from the left who has known you for a decade, "Sometimes, a superstar is just a superstar and that's the case with this Judge. The Senate should confirm him."

I am hopeful that this "superstar", as well as the current members of The Supreme Court, have not allowed their hearts to be hardened to the point that they no longer recognize the precedent that was set by The Author of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, In The Beginning, at our Creation, when God Created every human person, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, The Most Holy And Undivided Blessed Trinity, worthy of Redemption.

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Nancy
on September 12, 2018 at 17:05:58 pm

".. it’s ok to have a sinner in charge as long as he hates poor people and minorities enough?"

Yes - now that is another example of the advanced thinking of the those Leftists living in the basement of their parents homes and having to inhale all those fumes from the kerosene boiler.
Sniff away, sniff away!!!

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gargamel rules smurfs
on September 12, 2018 at 17:13:24 pm

Quite right.

How Rogers is able to advance this notion is quite beyond me: "Further, while Chevron deference is a much contested doctrine these days, even among judges, nonetheless, courts have provided, and continue to provide, significant deference to administrative interpretation of congressional statutes. This depoliticizes judicial decision making in the sense of removing judges from second-guessing most policy decisions made by executive agencies."

It just so happens, Mr Rogers that so much of this deference coincides with the Leftist Progressive Project - or had he not noticed? and the only time, the Black robes, especially at the lower Federal levels DO NOT defer is when the Agency promulgating the regulation / rule or change in rule is an agency headed by an appointee of The Trumpster.

I am at times *awestruck* by some comments of Rogers.

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Guttenburgs Press and Brewery
on September 12, 2018 at 18:14:01 pm

That is about the stupidest thing I've read all day. It's not even intelligible.

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Erich Sielaff
on September 12, 2018 at 18:19:35 pm

Sasse's comments were like a breath of fresh air. I think his view of the politicization of the court is valid when you consider that as far as the vast majority of the public is concerned, Court decisions seem to be the dynamic policy change agent, not legislative action.

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Erich Sielaff
on September 12, 2018 at 20:20:27 pm

"Court decisions seem to be the dynamic policy change agent, not legislative action."

You hit it on the head.
Now that could, perhaps, be due to the Legislative's ability (and let us not forget their "desire") to deflect accountability away from themselves and also due to their unique ability to posture and promote themselves as not only "being about the peoples business" BUT also advancing the good of the peoples business. Both of which are pure fabrications, BTW.

BTW2: The "fumes" commentary had to do with a "long train of abuses" / accusations leveled by the *perky* one and is a continuation on a theme - not to be concerned with it, at all!

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Image of gargamel rules smurfs
gargamel rules smurfs
on September 14, 2018 at 05:41:13 am

[…] was important in itself – and is magnified by the visibility of the venue (even if it didn’t quite explain why judicial confirmation hearings became so […]

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Image of Ben Sasse on How the Administrative State Injures American Democracy
Ben Sasse on How the Administrative State Injures American Democracy

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.