As the Senate confirmation hearing for Supreme Court nominee Judge Brett Kavenaugh endlessly droned on, the political bravado and bluster from both sides of the aisle could have been categorized in hurricane warning levels.
Fundraising letters were sent from both Democratic and Republican senators, fake fights erupted, false choice questions were posed, and in the end the American people were once again left without a reason to trust the motives or actions of elected officials.
Two senators called out the insanity and reminded their colleagues and the nation that the answers to ending the hyperpartisan battles for Supreme Court nominees are simpler than most think.
Sen. Ben Sasse, R-Neb., described the insanity of insults hurled at Kavanaugh as achieving absolute absurdity. He framed the politicization of the court and the confirmation hearings as having nothing to do with the current nominee, the president or even the American people.
Sasse argued, “The reason these hearings don't work is not because of Donald Trump. It's not because of anything these last 20 months. These confirmation hearings haven't worked for 31 years in America. This has been happening since Robert Bork. This is a 31-year tradition.”
He continued, “Our political commentary talks about the Supreme Court like they are people wearing red and blue jerseys. That's a really dangerous thing."
It's predictable now that every confirmation hearing will be an overblown, politicized circus. And it's because the country has accepted a bad new theory about how its three branches of government should work, particularly how the judiciary should function.
Sasse then transitioned to his main focus: “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.”
He is right to assert the legislative branch is at fault because it has abdicated authority and power to the executive and judicial branches. With a lack of policy action driven by real debate in Congress, the Supreme Court becomes the battleground.
Utah Sen. Mike Lee similarly spent most of his time over the course of the hearings reminding his colleagues on both sides what they are supposed to be doing. He began, “I still believe the Senate’s approach does a disservice to the country. If senators repeatedly ask nominees about outcomes, the public is entitled to think that judges are supposed to be outcome-oriented. This undermines the legitimacy of the courts. Over time, no free people would accept a judiciary that simply imposes its own preferences on the country, absent fidelity to legal principle.”
Lee continued, “There’s a better way for the Senate to approach its work. This process should be about your qualifications, your character and your approach to judging. It should not be about results in a select number of cases.”
The senator concluded with this request, “So my plea to my colleagues is that we ask Judge Kavanaugh hard questions. I believe we are required to. The Senate is not and should not be a rubber stamp. But if you disagree with an opinion he’s written, make a legal argument. Explain why you think it’s wrong. Don’t complain about the result as if it’s proof that he’s wrong. And don’t ask him to make promises. If it’s unacceptable for the president to impose a litmus test, it’s surely unacceptable for the Senate to do so.”
Sadly, many on the committee did not head the pleas of the two senators. The hearings could have been rightly described as a fundraising telethon for both political parties. America deserves better.
Fixing the process shouldn’t be difficult. It merely requires following the structures outlined within the Constitution. Citizens should remember that the way to quiet the prevailing political hurricanes is as simple as returning to “School House Rock.”