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Ben Sasse Explains Why the Politicization of the Supreme Court Is a Dangerous Thing

"Government is about power. Government is not just another word for things we do together," said Sasse.

Bill Clark/CQ Roll Call/NewscomBill Clark/CQ Roll Call/NewscomTake 15 minutes out of your evening, pour a glass of something fun, and watch the entirety of what Sen. Ben Sasse (R–Neb.) had to say at today's confirmation hearing for Judge Brett Kavanaugh.

After a few minutes of summarizing his views about Kavanaugh—no surprise here, Sasse seems pretty supportive of Kavanaugh's nomination—the senator winds up by asking, rhetorically, why and how choosing a new member of the Supreme Court became such a complete shitshow (my word, not his). The blame, as Sasse explains in his brutally honest stemwinder, does not lie with Kavanaugh or even the unorthodox occupant of the White House.

"The hysteria around Supreme Court confirmation hearings is coming from the fact that we have a fundamental misunderstanding of the role of the Supreme Court in American life now," says Sasse. "Our political commentary talks about the Supreme Court like they are people wearing red and blue jerseys. That's a really dangerous thing."

But why has every Supreme Court nomination become such an "overblown politicized circus," as Sasse put it? In short, it's because Congress has abdicated its responsibility to be the nation's law-making authority. Deferring to the decisions of unelected bureaucrats and actively handing over power to the executive branch has short-circuited the democratic process, Sasse argued, leaving Americans with the sense that they do not control government, but rather the other way around.

"This transfer of power means that people yearn for a place where politics can actually be done. And when we don't do a lot of big actual political debating here, we transfer it to the Supreme Court, and that's why the Supreme Court is increasingly a substitute political battleground in America," said Sasse. "It is not healthy, but it is what happens, and it's something that our Founders wouldn't be able to make any sense of."

For the next 10 minutes, Sasse expanded on that basic thesis with a professorial breakdown of Articles I, II, and III of the U.S. Constitution, focused on how the weakening of Congress' role has thrown off the delicate balance of power that is supposed to sustain the American democratic experiment. Passing power from Congress to an "alphabet soup" of executive departments and agencies is a convenient way for lawmakers to avoid responsibility, he said, accusing Congress of neutering itself.

"Government is about power. Government is not just another word for things we do together," said Sasse. "Almost all the power right now happens off-stage, and that leaves people wondering 'Who is looking out for me?'"

I highly recommend watching the whole thing.

There are those who say Sasse is overly interested in droning on about how things are supposed to work while not doing much of anything to actually fix the problems he identifies; for those people, today's sermon will provide a different kind of satisfaction. Just today, conservative columnist Jennifer Rubin wrote in the Washington Post that Sasse is the "subject of ridicule from Democrats and private eye-rolling from right-leaning pundits for his penchant for grand, empty pronouncements and complete deference to the White House."

But we are certainly better off having someone sound these alarms about the failings of the system, even if his ability to fix things is equal to that of the proverbial coalmine canary. As Reason's Elizabeth Nolan Brown pointed out this morning, Sasse was one of only a few Republicans to condemn President Donald Trump's Labor Day tweet suggesting that the Department of Justice should operate according to the president's whims, rather than working to uphold the rule of law. If he's unable to do much about it, that probably says more about Sasse's colleagues than it does about him.

Photo Credit: Bill Clark/CQ Roll Call/Newscom

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  • John||

    Jesus fucking Christ is Ben Sasse stupid. Thinking that the government shouldn't have much power and the Constitution should restrain it, is a fucking political statement. The moment people stopped agreeing about what the Constitution meant, the Supreme Court became political.

    You really can't overstate how fucking stupid this statement and Sasse really is.

  • Libertymike||

    You know who else is stupid?

    All the people who think Colin "don't color me 3-16 in my last 19 starts" Kapernick DESERVES a starting quarterback slot with an NFL team.

  • Cynical Asshole||

    You know who else is stupid?

    Anyone who gives 2 shits about whether or not Colin Kaepernick ever plays another down in the NFL.

  • Libertymike||

    What about those of us who want to be informed and engage in logical, reasoned discourse?

  • Atlas Slugged||

    JTFC you are ignorant of the NFL. Kap played for a terrible Niners team while playing at a near league average level. I don't blame him for wondering WTF when MIKE GLENNON signed for starter money and Kap wasn't even invited to camp.

  • Red Rocks White Privilege||

    Kap played for a terrible Niners team while playing at a near league average level

    Shit, by that logic Garrapolo deserved that fat paycheck after all, considering he went 5-0 with an equally shitty Niners team.

  • loveconstitution1789||

    Who is this colin kapernick you speak of?

  • Last of the Shitlords||

    CK has only his own waning skills t blame for his inability to get a slot on a team. Word has it that he was seeking $4 million per year, and was only offered around $ 900k.

    I hope theynshitcan all the kneeler sans show the little ingrates just how replaceable they really are. They have a skill set that cannot be monetized to any real degree outside the US and for much of any other purpose. They are fucking lucky to make the money they do, and should be completely obedient to their employers while they are on the clock.

  • damikesc||

    He was offered more by Nike to not play than by teams to play.

    THAT is why he is not playing.

  • Anti-Fasciitis||

    Imagine Carson Wentz said that he doesn't like gay people and thinks they're going to hell. Then the Eagles release him and no other teams want to sign him because as good as he is, they don't want the drama.

    Do you seriously believe ANY media figures would be accusing the NFL of colluding against him, just because worse QBs than Wentz have jobs? Of course not.

    The job of an NFL player is more than just performing on the field. It's maintaining an image that people are willing to pay to see. That's why Kap doesn't have a job. It doesn't help his case that he opted out of his contract, the fool.

  • JesseAz||

    Yes. Sasse explaining the devolution of the legislative branch to a bunch of asshats who gave their jobs away to the judicial and executive is stupid... What a fucking stupid take on Sasse's remarks, John. He was quite clearly inferring the the degradation of Congress directly started to lead the the politicization of the other branches at a quick pace. His speech was 15 minutes, try to make it through at least 3.

  • John||

    Yes it is stupid. It entirely misses the point that how a judge interprets the law is always going to be a political issue unless everyone agrees, which will never happen.

    Sasse is an idiot.

  • Red Rocks White Privilege||

    It's not a stupid statement, but he is stating what has been obvious for a long time. The process became political during the Bork hearings after Reagan nominated so many conservative-leaning justices, as the Democrats realized that even if they had a majority, a lot of the laws they supported could ultimately get overturned in the right circumstances. Over time, the Court's become the de facto law-making body because they're now considered the final word when it comes to any controversial law or social issue.

    Where Sasse misses the forest for the trees is the implication that Congress can take back that authority without a great deal of political upheaval. Like a lot of MUH PRINCIPLES conservatives, he doesn't get that the Left considers their ideology to be holy writ and anyone standing in their way deserves to be crushed.

  • chemjeff radical individualist||

    Where did Sasse say that Congress taking its power back would be easy?

    Like a lot of PLAY BY THEIR RULES Trumpists, you somehow think that "playing by the Left's rules" won't turn you into just another clone of the Left.

  • damikesc||

    It likely will.

    But better to have OPPOSING sides trying to do it.

    One side ALONE doing so is tyranny.

  • Juice||

    The process became political during the Bork hearings

    LOL, but not any other time in history.

  • damikesc||

    Not like that. No.

    It's why nominees won't say anything in hearings.

    Because Ted Kennedy who, unlike Bork, left a woman to die felt Bork wasn't suitably supportive of women's rights.

  • the Aspen beat||

    Holy Smokes! This guy can think and talk! He must've taken a wrong turn to wind up in that room.

  • the Aspen beat||

    It's obvious that you didn't actually watch the video. Sasse didn't say that government should have less power, he said that the power should be in an accountable legislative branch, not an unaccountable judiciary.

    As for stupid, that's a word I'd assign to a person who comments on something he hasn't read or watched.

  • Telcontar the Wanderer||

    You know who else made a grand, empty gesture that didn't effect any lasting change...?

  • Libertymike||

    The Man of La Mancha?

  • CE||

    Nike?

  • JesseAz||

    Uncle Ben?

  • Telcontar the Wanderer||

    Technically, by letting Vader kill him, Kenobi deterred Luke from running back and trying to rescue him.

    Thus, among other things, directly benefitting countless millions of workers via the spending stimulated and jobs created by the Death Star II project, single-handedly reviving the declining Imperial economy.

  • Telcontar the Wanderer||

    All of which, of course, applies just as much if you were actually referring to Peter Parker's uncle, whose role in promoting economic growth in the Galactic Empire was just as, arguably even more, notable than anything Kenobi could ever hope to achieve.

  • Telcontar the Wanderer||

    The answer I had in mind, incidentally, was "Tank Man".

  • ||

    Delta House?

  • Hamster of Doom||

    Our hearts changed, man. And frequently our BAC.

  • loveconstitution1789||

    FDR?

  • Juice||

    Talk about politicizing the judicial branch.

  • PoorSocialistLosertarian||

    Listen: I'll just come out and say it.

    Trump is an unconstitutional president.

    His SCOTUS picks are null and void.

    As such, the current court is illegitimate, and the USA has no legitimate court system.

    This invalidates all policy during the Trump administration.

    Therefore, until the Trump presidency is annulled, this government is illegitimate. QED.

  • IceTrey||

    How so?

  • PoorSocialistLosertarian||

    All I'm saying is that, because of Donald Trump, the entire federal government of the USA is invalid. Therefore, we should start anew, hopefully grounded in our true ideals: classless community, devoid of profit motive.

    Anyway, even if you're not ready to take the final journey with me, we should all agree that the government of the USA is illegitimate, and wields no actual power that anyone is obligated to follow, until someone who is like-minded takes our country back.

    I really don't see how taking reality for what it is could be more dangerous than the alternative.

  • Libertymike||

    You've got a ways to go to match OBL.

  • JesseAz||

    Think he is mocking the hihn sock puppet trying to be the conservative Obl.

  • Red Rocks White Privilege||

    If the sequel (LeaveTrumpAloneLibertarian) is typically worse than the original, the final act in the trilogy is nearly guaranteed to be so.

  • Left ± Right > Hihn||

    Goddammit am I gonna have to take up the mantle of FoolishSamuraiAku-literian?

  • OverWandersTelcon-tarian||

    If you want to be one of the cool kids, yeah.

  • Left ± Right > Hihn||

    ...well played, Telcontar.

    Well played.

  • OverWandersTelcon-tarian||

    FTR, I was already planning to get around to doing that before reading your comment. You were the wind beneath my wings, though.

  • LeaveTrumpAloneLiberal-tarian||

    wields no actual power

    Tell that to all the Iraqis and North Vietnamese we liberated, socialist. They're much better off now thanks to our tax dollars and bombs.

  • John||

    As Reason's Elizabeth Nolan Brown pointed out this morning, Sasse was one of only a few Republicans to condemn President Donald Trump's Labor Day tweet suggesting that the Department of Justice should operate according to the president's whims, rather than working to uphold the rule of law. If he's unable to do much about it, that probably says more about Sasse's colleagues than it does about him.

    Nothing says liberty like a national police force that is only accountable to itself and not those elected to run it. If DOJ isn't accountable to the President, they are not accountable to anyone. I will take the whims of the President, who can be voted out of office or impeached over the whims of an unaccountable prosecutor.

  • chemjeff radical individualist||

    If DOJ isn't accountable to the President, they are not accountable to anyone.

    I think you forgot about the two other branches of government there.

  • DiegoF||

    I guess there are two ways of looking at it. One is that Ben Sasse is a sitting member of Congress. As such, it's not unreasonable to view his public rhetoric as in part addressed to the actions or proposed actions of his colleagues. They are in charge--the sole body in charge of this particular check--with overseeing the President's administration of the Executive Branch. If he is rallying them to crack the whip in one particular direction, well then that is certainly his prerogative and he is doing his job. Congress created the bureaucracy and is tasked with its oversight; it can destroy it or its powers or budget, or restrain its scope, or impeach its officers or the President, for whatever reason strikes its fancy.

    On the other hand, if Sasse is perpetuating the myth that Justice is not completely subordinate to the President, that it is somehow independent in its decision making or does not answer to him, that the President cannot fire anyone in that department for any reason that strikes his fancy or some such thing--then Sasse is in fact doing our national political culture and our popular understanding of our republic's function a great disservice by perpetuating such myths!

  • Anti-Fasciitis||

    How are they accountable to Congress? They defy document subpoenas with impunity and stonewall when called to testify. Rosenstein was even threatening members of Congress with investigations if they pushed too hard to get documents.

  • chemjeff radical individualist||

    How are they accountable to Congress?

    It's called "impeachment". It's also called "power of the purse strings".

    Rosenstein was even threatening members of Congress with investigations if they pushed too hard to get documents.

    Umm, sure, yeah.

  • Last of the Shitlords||

    The DOJ is absolutely accountable to the president. Funny how the constitution suddenly doesn't work the same way for a republican president as a democrat president.

    Fuck the democrats. They can eat shit. They lost, and are lucky most of them aren't being prosecuted right now. If I were AG they sure as fuck would be.

  • chemjeff radical individualist||

    Yes, we all know how much of a fan of the Constitution you are around here. "Prosecute all the Democrats"? Why, it says so right there in Article 12 of the Constitution!

  • Last of the Shitlords||

    So you don't think a significant portion of the DNC leadership, amd congressional democrats are guilty of various easily provable crimes? Or you just don't care?

  • ShotgunJimbo||

    Don't get him too fired up, he'll start having his normal tantrum of "wah wah, civil war, kill the lefties I dont agree with"

  • I'm Not Sure||

    "The hysteria around Supreme Court confirmation hearings is coming from the fact that we have a fundamental misunderstanding of the role of the Supreme Court in American life now,"

    "The hysteria around Supreme Court confirmation hearings is coming from the fact that we have a fundamental misunderstanding of the role of the US government in American life now,"

    Fixed it for ya.

  • CE||

    It's hard to find another organization with lower approval ratings than Congress.
    Do we really want to turn the final decisions over to those clowns?

    The Supreme Court is politicized now not because they are on Team Red or Team Blue, but because they are the referees, and the team in power gets to pick them.

  • chemjeff radical individualist||

    It's hard to find another organization with lower approval ratings than Congress.
    Do we really want to turn the final decisions over to those clowns?

    Better than most other alternatives in play.

  • Nardz||

    What about your noble savages?
    Won't they show us the way to good governance?

  • chemjeff radical individualist||

    You mean immigrants?
    I'd vote for an immigrant before I'd vote for any of these Trumpian pieces of shit.

  • Last of the Shitlords||

    Of course you would Little Jeffy, of course you would.

  • DiegoF||

    Sorry Mr. Sasse; you are at best a poor substitute. I prefer getting Sassy with Massie. (Three snaps.)

  • Bearded Spock||

    "...conservative columnist Jennifer Rubin...."

    Admit it, Boehm: you're trolling us, aren't you?

  • Incomprehensible Bitching||

    Sassy!

  • wef||

    The faster the mass of dimwits recognizes it's all pompous, liturgical apologetics for the power class running an extortion-protection racket, the better.

  • chemjeff radical individualist||

    That was an absolutely amazing speech from Sasse. He is 100% right on the problem. Congress won't do its job so it outsources its power to unelected people, so that Congresscritters can avoid taking responsibility for unpopular decisions.

  • Nardz||

    Welcome to the chorus, Jeff.
    It's almost like you've been reading other people here saying this exact same thing over and over again and decided to regurgitate it.
    At least it's accurate

  • Anti-Fasciitis||

    Sasse was one of only a few Republicans to condemn President Donald Trump's Labor Day tweet suggesting that the Department of Justice should operate according to the president's whims, rather than working to uphold the rule of law.

    You think the DOJ is upholding the rule of law now? They're trying to obstruct the implementation of an election outcome they didn't like.

    They're completely uninterested in investigating Hilary's crimes while scouring the history of anybody associated with Trump. Yeah, rule of law. What a joke.

  • josh||

    "There are those who say Sasse is overly interested in droning on about how things are supposed to work while not doing much of anything to actually fix the problems he identifies"

    The first step to fixing most of those problems is to get things working like they're supposed to.

    I like the guy, and it was a smart speech politically. He comes across as looking like one of the few grown-ups in a room full of children.

  • the Aspen beat||

    Holy Smokes! This guy can think and talk! He must've taken a wrong turn to wind up in that room.

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