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Ben Sasse’s Master Class

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Ben Sasse’s Master Class

At the often-farcical first-day hearings for Supreme Court nominee Brett Kavanaugh, the Nebraska senator explains the Constitution’s separation of powers. September 5, 2018
Politics and law

Day one of the Senate Judiciary Committee hearings on the nomination of Brett Kavanaugh to the Supreme Court was largely a farce, but the committee’s youngest member, Nebraska Senator Ben Sasse, stepped up as the adult in the room. In the middle of what Sasse accurately labeled a “politicized circus,” he delivered a master class on the proper allocation of authority among the judicial, legislative, and executive branches of the federal government. Sasse’s separation-of-powers roadmap is one that nominee Kavanaugh has followed throughout his 12 years on the federal bench.

At the outset, Democratic senators played the part of resistance warriors and sought to derail the proceedings. Perched at the left flank of the Democrats’ left-side phalanx, the two junior-most of their number—2020 presidential aspirants Cory Booker and Kamala Harris—jostled for camera time, while Republican chairman Chuck Grassley struggled to maintain order. Grassley implausibly claimed that the Democrats had had plenty of time to read 42,000 pages of materials from Kavanaugh’s White House years that had been released some 15 hours earlier. He largely missed the broader point: the objecting senators had announced their opposition to Kavanaugh the moment that he was nominated.

In the gallery, scores of protesters attempted to invoke the heckler’s veto and were promptly escorted out by capitol police. A coterie protesting for abortion rights donned the red habits and bonnets of the oppressed women of the novel-cum-dystopian-television-series The Handmaid’s Tale. The father of a victim of the school shooting in Parkland, Florida, accosted Kavanaugh during a recess, before security intervened. Kavanaugh’s former law clerk, Zina Bash, who has been prepping the judge for the hearing, became the subject of a deranged social-media firestorm, when conspiracy-minded leftists argued that she was making surreptitious hand signals to white supremacists.

Amid this chaos, the 46-year-old Sasse, who holds a Ph.D. in American history from Yale, explained the Framers’ view of American government. Sasse argued that judges wear black robes instead of red and blue jerseys—and get life tenure, rather than seeking elected terms of office—because the judicial branch is supposed to leave policymaking to Congress. Sasse invoked the civics of Schoolhouse Rock!, the public-service shorts that aired on Saturday mornings in the 1970s, 1980s, and 1990s. The Schoolhouse Rock short “I’m Just a Bill,” first aired in September 1975, shows a talking piece of legislation explaining to a boy how a bill becomes a law:

I’m just a bill

Yes, I’m only a bill

And if they vote for me on Capitol Hill

Well, then I’m off to the White House

Where I’ll wait in a line

With a lot of other bills

For the president to sign

And if he signs me, then I’ll be a law.

How I hope and pray that he will,

But today I am still just a bill.

These lyrics still explain the legislative process, but as Sasse observed, they’re increasingly irrelevant to how the federal government exerts control. Though the legislative branch “is supposed to be the center of our politics,” it isn’t, because “more and more legislative authority is delegated to the executive branch every year.” Starting in the 1930s and especially since the 1960s, Sasse said, a “self-neutering” Congress ceded much of its authority to “a bunch of alphabet-soup bureaucracies.”

Perhaps as much as any judge sitting on the federal bench, Kavanaugh has stood athwart this congressional abdication of constitutional duty, yelling, “Stop!” The seminal Supreme Court case enabling Congress to transfer its power to alphabet-soup agencies is the New Deal–era decision Humphrey’s Executor v. United States (1935), which upheld the constitutionality of agencies “wholly disconnected from the executive department” that were “created by Congress as a means of carrying into operation legislative and judicial powers.” In a footnote in a dissenting opinion earlier this year, in PHH Corporation v. CFPB, Kavanaugh questioned the foundations of Humphrey’s Executor. He dissented from the D.C. Circuit’s opinion upholding Congress’s decision to vest authority over the Consumer Financial Protection Bureau (CFPB) in a single director, unanswerable to the president. Kavanaugh viewed that as a step too far beyond what Humphrey’s Executor allowed.

The litigant in the CFPB case decided not to ask the Supreme Court for review, though similar cases are pending. But in other cases in which Kavanaugh has dissented from his colleagues’ acquiescence to congressional delegations of authority, the high court has agreed with his reasoning. In 2008, in Free Enterprise Fund v. PCAOB, the D.C. Circuit upheld the constitutionality of the Public Company Accounting Oversight Board—an independent body appointed by another independent body (the Securities and Exchange Commission). Judge Kavanaugh viewed the twice-independent agency as an unconstitutional extension of Humphrey’s Executor. The Supreme Court agreed, and Chief Justice John Roberts’s opinion favorably cited Kavanaugh’s.

Kavanaugh did not delve much into the substance of these issues in his brief opening statement before the committee on Tuesday. (He instead focused his designed-to-be-inoffensive remarks on his personal story, highlighting his dutiful embrace of his role as husband, son, and father.) But as he had in his speech when the president announced his Supreme Court nomination, Kavanaugh stressed how he teaches his law students “that the Constitution’s separation of powers protects individual liberty.”

Those separation-of-powers concerns explain some of the progressive opposition to Kavanaugh’s nomination—an opposition that, as Sasse explained, has been similar for every Republican Supreme Court nomination for the last 31 years. Yes, senators objecting to Kavanaugh’s nomination are indeed worried about how he might rule on hot-button cases that animate their base—among them abortion rights and gun control, the first two issues highlighted by ranking Democrat Dianne Feinstein in her opening remarks. But make no mistake: when Sasse decries the delegation of authority to administrative agencies “because people don’t have any way to fire the bureaucrats,” progressives tend to view that as a feature, not a bug.

They’re wrong; and Sasse is right that the current political circus is unhealthy for the republic. The Founders would be unhappily surprised to learn that so many Americans view presidential contests as live-or-die, “Flight 93” elections; or that many voters in those elections are animated principally by prospective Supreme Court nominations, as 21 percent of American voters reported they were in 2016 exit polls.

Sasse, a persistent critic of his own party’s president, is no “drain the swamp” populist. But such populism can be all that’s left for objectors in a political system that leaves most divisive decisions to unelected administrators and judges. Jurists like Kavanaugh—judicially modest, but forcing elected legislators to do the business of legislating—are necessary preconditions for lowering the political heat.

Photo: Chip Somodevilla/Getty Images

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