There has been a lot of political pander after Brett Kavanaugh’s Supreme Court hearing. Pundits from the right are praising his performance, while pundits from the left are predicting apocalypse and expect him to strike down everything liberals hold dear. Who’s right? How did we get here? Were these hearings always so hotly debated?
The short answer is no.
Just looking back 30 years ago, Sandra Day O’Connor was confirmed 99-0, and Anthony Kennedy was confirmed 97-0. But since then, Supreme Court votes have been increasingly contentious. Making the Supreme Court a political battleground.
Certainly it is not due to Justices’ qualifications. Each current Supreme Court Justice had, at the time of their nomination, decades of experience and Ivy League pedigrees. All are qualified for the position, whether they were nominated by a Republican or Democratic president. The constitution has no qualification guidelines anyway, just that the president should appoint judges “by and with the Advice and Consent of the Senate.” So why have Supreme Court nominations become increasingly political?
Senator Ben Sasse of Nebraska knows exactly the reason – Congress.
“It’s predictable now that every confirmation hearing is going to be an overblown, politicized circus. And it’s because we’ve accepted a bad new theory about how our three branches of government should work — and in particular about 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 do 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 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.”
Senator Sasse is right. For far too long Congress has forfeited its power to the Executive Branch. “We write giant pieces of legislation — 1,200 pages, 1,500 pages long that people haven’t read. Filled with all of these terms that are undefined and we say the Secretary of such and such shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and about the judiciary because this body rarely finishes its work,” continued Sasse.
The beauty of the legislative branch lies in its accountability. If the American people don’t like the job their representative is doing, they get to vote them out of office every two or six years and replace him or her with someone else. Passing power, and with it blame, to the Executive Branch undermines the ability of Americans to hold their government accountable.
So, if Americans can’t hold Congress accountable, and can’t navigate the sea of bureaucracy, the only place they have left to go is the Supreme Court. “Ultimately, because people can’t navigate their way through the bureaucracy they turn to the Supreme Court looking for politics. And knowing that our elected officials no longer care enough to do the hard work of reasoning through the places where we differ and deciding to shroud our power at times, it means that we look for nine Justices to be super-legislators. We look for nine justices to try to right the wrongs from other places in the process.”
Despite what pundits from the left or right may say, Justices that serve on the Supreme Court do not rule based on political affiliation. However, since Congress is failing to legislate, the Supreme Court is becoming increasingly like a lawmaking body, striking down or upholding rules the Executive Branch makes.
If Congress wants to regain its power, and stop the over politicization of the Supreme Court, it needs to actually do its job. Senator Sasse got many members talking after his statement, hopefully it will be the spark that Congress needs to get back on track.