Sen. Ben Sasse said Thursday he was unsettled by Judge Brett M. Kavanaugh’s answers to questions about abortion precedent during his confirmation hearing this week. The Nebraska Republican told radio show host Hugh Hewitt he was chucking his planned questions for Thursday’s second round and would instead pursue the judge’s reasoning on precedent, saying he’s “worried about some of the gray line.” “On the one hand, when there’s a precedent, you don’t want every circuit court in America to be making up their own decisions about whether or not that precedent is a precedent that’s a big deal. On the other hand, Plessy. I mean, there are obviously cases where, situations where cases have been wrongly decided, and they need to be overturned,” Mr. Sasse said. Plessy was the 19th Century case that established the “separate but equal” doctrine underpinning segregation. It was overturned in the landmark Brown v. Board of Education decision that Judge Kavanaugh called the Supreme Court’s greatest moment. Questions about precedent were raised after Judge Kavanaugh declared Roe v. Wade, the 1973 case that established a national right to abortion, as an established precedent that had been reaffirmed by other cases. He said that made it “precedent upon precedent.” Democrats are convinced Judge Kavanaugh would overturn Roe should he win a seat on the Supreme Court. But Mr. Sasse’s reaction to the judge’s testimony suggests conservatives aren’t certain how he’ll approach abortion cases. Sign up for Daily Newsletters Manage Newsletters Copyright © 2021 The Washington Times, LLC. Click here for reprint permission.<doc-sep>Sen. Ben Sasse (R., Neb.) said during Tuesday's confirmation hearing for Supreme Court nominee Brett Kavanaugh that Congress has decided to "self-neuter." "At the end of the day, a lot of the power delegation that happens from this branch is because the Congress mass decided to self-neuter," Sasse said. Sasse's comment came while giving his view on how the Supreme Court, in lieu of Congress, has become our "substitute political battle ground." He criticized people who have politicized the judicial branch—and Congress for enabling the shift—because they expect judges to implement policies the legislative body has been unable or unwilling to pass. "We have a fundamental misunderstanding of the role of the Supreme Court in American life now," Sasse said. "Our political commentary talks about the Supreme Court like there are people wearing red and blue jerseys. That's a really dangerous thing. And by the way, if they have red and blue jerseys, I would welcome my colleagues to introduce the legislation that ends lifetime tenure for the judiciary. Because if they're just politicians, then the people should have power and they shouldn't have lifetime appointments." The senator gave a more in-depth overview of why the Supreme Court nominations have become so politicized and how the process might be fixed. It's predictable that every confirmation hearing now is going to be overblown, politicized circus. And it's because we've accepted a new theory about how our three branches of government should work and in particular how the judiciary should work. What Supreme Court confirmation hearings should be about is an opportunity to go back and do School House Rock civics for our kids. We should be talking about how a bill becomes a law and what the job of Article II is and what the job of Article III is. So let's try just a little bit. How did we get here, and how can we fix it? I want to make just four brief points. Number one, in our system, the legislative branch is supposed to be the center of our politics. Number two, it's not. Why not? Because 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. The legislature is weak. And most people here want their jobs more than they really want to do legislative work. And so they punt most of the work to the next branch. [The] third consequence is that this transfer of power means the 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. 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. And fourth and finally, we badly need to restore the proper duties and the balance of power from our constitutional system. Sasse further explained why the legislature, not the high court, should be where political fights are hashed out. "The Constitution's drafters began with the legislature—these are equal branches, but Article I comes first for a reason, and that's because policy making is supposed to be done in the body that makes laws. That means this is supposed to be the institution dedicated to political fights … The people get to decide whether to hire us or fire us. They don't have to hire us again. This body is the political branch where policy making fights should happen. And if we are the easiest people to fire, it means the only way the people can maintain power in our system is if almost all the politicized decisions happen here, not in Article II or Article III," he said. He said members of Congress prefer giving up their power because it takes away the burden of responsibility. "The real reason at the end of the day that this institution punts most of its power to executive branch agencies is because it's a convenient way for legislators to be able to avoid taking responsibility for controversial and often unpopular decisions. If people want to get re-elected over and over again and that's your highest goal, if your biggest long-term thought around here is about your own incumbency, then actually giving away your power is a pretty good strategy," Sasse said. "It's not a very good life, but it's a pretty good strategy for incumbency." Sasse said the question for senators is not what Kavanaugh's personal beliefs are on policy matters but if he has the temperament and character to rule on the law. "So the question before us today is not what did Brett Kavanaugh think 11 years ago on some policy matter; the question before us is whether or not he has a 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," Sasse said. "The question is does he have the character and temperament to do that. If you don't think he does, vote no, but if you think he does, shop the charades. Because at the end of the day, I think all of us know that Brett Kavanaugh understands his job isn't to rewrite laws as he wishes they were; he understands that he's not being interviewed to be a super legislator; he understands that his job isn't to seek popularity. His job is to be fair and dispassionate. It is not to exercise empathy; it is to follow written laws."<doc-sep>(CNN) — Sen. Ben Sasse said Tuesday at Brett Kavanaugh’s Supreme Court confirmation hearing that President Donald Trump’s politicization of the Justice Department was worthy of condemnation. “The comments from the White House yesterday about trying to politicize the Department of Justice – they were wrong,” the Nebraska Republican said. “And they should be condemned, and my guess is Brett Kavanaugh would condemn them.” RELATED: Democrats disrupt start of Kavanaugh hearing with protest over withheld documents Sasse’s comment came during an extended series of remarks he made about the shortcomings of confirmation hearings and his criticism of the discourse around Kavanaugh’s nomination to fill the vacancy created by Justice Anthony Kennedy’s retirement this summer. On Monday, Trump had knocked Attorney General Jeff Sessions for his leadership of the Justice Department and bemoaned that “two easy wins” would be in doubt this fall because of charges brought by the Justice Department against two Republican members of Congress, Reps. Chris Collins of New York and Rep. Duncan Hunter of California. Collins was charged with securities fraud and Hunter with misuse of campaign funds, and both congressmen have pleaded not guilty. Sen. Jeff Flake, an Arizona Republican who’s a frequent critic of Trump, followed Sasse in addressing the President’s remarks, calling them “why a lot of people are concerned about this administration and why they want to ensure that our institutions hold.” Some Democrats warned on Tuesday that the President’s tweet about the political implications of the charges against two pro-Trump members of Congress amounted to an attack on the judicial system and a demonstration of disrespect for the rule of law. Sasse, in his remarks at the hearing, lambasted “hysteria” around Supreme Court confirmations and attributed it to an overly partisan understanding of the judiciary. “Our political commentary talks about the Supreme Court like they’re people wearing red and blue jerseys,” Sasse said. “That’s a really dangerous thing.” CNN’s Ellie Kaufman contributed to this report.<doc-sep>
Senator Ben Sasse (R, Neb.) questions Supreme Court nominee Brett Kavanaugh during the second day of his confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., September 5, 2018. (Joshua Roberts/Reuters) In his opening statement at the hearings on Judge Brett Kavanaugh’s nomination to the Supreme Court, Senator Ben Sasse (R., Neb.) argued that our understanding of how the three branches of the federal government should work has gone badly awry. Sasse’s statement has drawn praise from conservatives, including at NRO, and the Wall Street Journal published a version of it. It’s not hard to see why the senator has earned the applause. He made accurate and important observations that transcend the partisan scuffling over Kavanaugh—observations that have been central to conservative thought for a long time but that too few elected officials ever consider. The passion that so many people invest in the Supreme Court, he said, is a symptom of constitutional dysfunction. Congress should be “the center of politics” (presumably meaning national politics). But Congress has shirked the job of legislating, instead ceding much of its power to the courts and to the bureaucracy. It has given up power in order to hide from responsibility. All true. But while the pieces of Sasse’s argument are sound, he has stuck them together in a way that does not fit. He tries to argue that congressional delegation of power to executive-branch agencies has caused the public to turn to the courts. Here’s the core of his case: When the administrative state grows—when there is this fourth branch of government—it becomes harder for the concerns of citizens to be represented and articulated by officials who answer to the people. The Supreme Court becomes a substitute political battleground. . . . Because people can’t navigate their way through the bureaucracy, they turn to the Supreme Court looking for politics. This account is implausible. It is certainly true, as Sasse says, that Congress has expanded the power of the federal courts by passing vague laws that the other branches of government must essentially finish writing. But most of the public involvement in Supreme Court confirmation battles does not concern the administrative state at all. There are a lot more citizens on each side who are worked up about the Court’s decisions on abortion, same-sex marriage, guns, and other social issues than who are concerned about reining in or empowering “alphabet-soup bureaucracies.” Congress didn’t cede power to the bureaucracy to set policy in most of these areas. It didn’t cede power to the courts, either. The courts just took it. To the extent Congress is responsible for the current division of power over these issues, its mistake has been not to wrest that power back. The politicization of Supreme Court confirmations is much more easily and directly traceable to the Court’s social-issues rulings from the 1960s onward than it is to the congressional delegation of power to the executive branch that began decades earlier. The Journal’s editors have accurately summarized Sasse’s argument. Their headline runs, “Blame Congress for Politicizing the Court: When lawmakers hand power to bureaucrats, the people expect judges to act as superlegislators.” The Court actually brought on much of this politicization itself. (See Justice Antonin Scalia’s dissent in Planned Parenthood v. Casey for a fiery and focused elaboration of this point.) And we will not succeed in restoring a properly functioning constitutional order if we forget it.