OPENING STATEMENT OF SENATOR SASSE AT KAVANAUGH CONFIRMATION HEARING - PLEASE READ AS HE SLAMS THE CURRENT SYSTEM

Part 1:

Let’s do some good news; bad news. The bad news first. Judge, since your nomination in July, you have been accused of hitting women, hitting children, hating clean air, wanting dirty water. You’ve been declared “an existential threat to our nation.” Alumni of Yale law school incensed that faculty members at your alma mater praised your selection wrote a public letter to the school saying, “People will die if Judge Kavanaugh is confirmed.” This dribble is patently absurd and I worry that we’re going to hear more of it over the next few days, but the good news is it is absurd and the American people don’t believe any of it. This stuff isn’t about Brett Kavanaugh, when screamers say this stuff for cable tv news. The people who know you better, not those who are trying to get on tv, they tell a completely different story about who Brett Kavanaugh is. You’ve earned high praise from the many lawyers, both right and left, who have appeared before you during your 12 years on the D.C. circuit and those who had you as a Professor at Yale Law and Harvard Law. People in legal circles invariably applaud your mind, your work, your temperament, your collegiality. That’s who Brett Kavanaugh is and to quote Lisa Blatt?, a Supreme Court attorney from the left who has known you for a decade, “Sometimes a superstar is just a superstar and that’s the case with this judge, the senate should confirm him.”

It’s pretty obvious to most people going about their work today that the deranged comments actually don’t’ have anything to do with you, so we should figure out why do we talk like this about Supreme Court nominations now. There’s a bunch that’s atypical in the last 19-20 months in America. Senator Korbachar? Is right. The comments from the White House yesterday about trying to politicize the Department of Justice they were wrong and they should be condemned. My guess is that Judge Kavanaugh would condemn them, but really the reason these hearings don’t work, it’s not because of Donald Trump; it’s not because of anything in the last 20 months. These confirmation hearings haven’t worked for 31 years in America. People are going to pretend that Americans have no historical memory and supposedly there haven’t been screaming protesters saying women are going to die at every hearing for decades, but this has been happening since Robert Bjork?. This is a 31-year tradition; there is nothing really new the last 18 months.

So, the fact that the hysteria has nothing to do with you means that we should ask what’s the hysteria coming from. The hysteria around Supreme Court nomination hearings is coming from the fact that we have a fundamental misunderstanding of the role of the Supreme Court in American life now. 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. So, until you introduce that legislation I don’t believe you really want the Supreme Court to be a politicized body though that’s the way we constantly talk about it now. We can and we should do better than this; it’s predictable that every confirmation hearing now is going to be an 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 about how our government should work.

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Part 2:

What Supreme Court confirmation hearings should be about is an opportunity to go back and do Schoolhouse Rocks civics for our kids. We should be talking about how a bill becomes a law, 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.

1. In our system, the legislative branch is supposed to be the center of our politics.

1. 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.

1. Third consequence is that this transfer of power means that the people yearn for a place where politics can actually be done. We don’t do a lot of big actual 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 is something that our founders wouldn’t be able to make any sense of.

1. And, fourth and finally, we badly need to restore the proper duties and the balance of power from our constitutional system.

So, point one, the legislative branch is supposed to be the locust? of our politics properly understood. Since we’re here in this room today because this is a Supreme Court confirmation hearing, we’re tempted to s tart with Article III, but really we need that Article III is the part of the Constitution that sets up the judiciary. We really should be starting with Article I, which is us. What is the legislature’s job? 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 that this is supposed to be the institution dedicated to political fights. If we see lots and lots of protests in front of the Supreme Court, that’s a pretty good litmus test barometer of the fact that our republic isn’t healthy. Because people shouldn’t be thinking they should protest in front of the Supreme Court; they should be protesting in front of this body.

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Part 3:

The legislature is designed to be controversial, noisy, sometimes rowdy because making laws means that we have to hash-out the reality that we don’t all agree. Government is about power. Government is not just another word for things we do together. The reason we have limited government in America is because we believe in freedom. We believe in souls, we believe in persuasion, we believe in love and those things aren’t done by power. But, the government acts by power and since the government acts by power, we should be reticent to use power. And so it means when you differ about power, you have to have a debate. And, this institution is supposed to be dedicated to debate and should be based on the premise that we know since we don’t all agree, we should try to constrain that power just a little bit, but then we should fight about it and have a vote in front of the American people and then what happens? The people get to decide whether they want 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. So that brings us to a second point.

How did we get to a place where the legislature decided to give away its power? We’ve been doing it for a long time. Over the course of the last century, but especially since the 1930’s and then ramping up since the 1960’s a whole lot of the responsibility in this body has been kicked to a bunch of alphabet soup bureaucracies. All the acronyms that people know about their government or don’t know about their government are the places where most actual policy making, kind of in a way lawmaking, is happening right now. This is not what Schoolhouse Rock says. There is no verse of Schoolhouse Rock that says give a whole bunch of power to the alphabet soup agencies and let them decide what the governance decisions should be for the people because the people don’t have any way to fire the bureaucrats. So, what we mostly do around this body is not pass laws. What we mostly do is decide to give permission to the secretary or the administrator of the bureaucracy X, Y or Z to make law-like regulation. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1,200 pages, 1,500 pages long that people haven’t read filled with all 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 and the House is even worse. I don’t really believe that, but it seemed just seemed like you needed to try to unite us in some way. So, I admit that there are rational arguments that one could make for this new system – that Congress can’t manage all the nitty gritty details of everything about modern government and this system tries to give power and control to experts in their fields where most of us in Congress don’t know much of anything about technical matters for sure but you could also impune our wisdom if you want but when you’re talking about technical complicated matters, it’s true that Congress would have a hard time sorting out every final dot about every detail, but 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 goal around here is about your own encumbency, then actually giving away your power is a pretty good strategy. It’s not a very good life, but it’s a pretty good strategy for encumbency. And so at the end of the day, a lot of the power delegation that happens from this Branch is because Congress has decided to self-neuter. Well, guess what, the important thing isn’t whether or not the Congress has lame?? jobs, the important thing is that when the Congress neuters itself and gives

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Part 4:

power to an unaccountable fourth branch of government, it means the people are cut out of the process. There is nobody in Nebraska, there’s nobody in Minnesota or Delaware who elected the Deputy Assistant Administrator of Plant? Quarantine at the, USDA; and, yet, if the Deputy Assistant Administrator of Plant Quarantine does something to make Nebraskans’ lives really difficult, which happens to farmers and ranchers in Nebraska. Who do they protest to; where do they go? How do they navigate the complexity in the thicket of all of the lobbyists in this town to do Executive Agency lobbying? The can’t and so what happens is that they have no ability to speak out and to fire people through an election. And so ultimately when the Congress is neutered, when the administrative state grows, when there is this fourth branch of government, it makes it harder and harder for the concerns of citizens to be represented and articulated by people that the people know that they have power over. All the power right now, or almost all the power right now happens off stage and that leaves a lot of people wondering who is looking out for me. And, that brings us to the third point.

The Supreme Court becomes our substitute political battleground. It’s only nine people. You can know them, you can demonize them, you can try to make them messiahs, but 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 9 justices to try to right the wrongs from other places in the process. When people talk about wanting to have empathy from their justices, this is what they are talking about. They’re talking about trying to make the justices do something that Congress refuses to do as it constantly abdicates its responsibility. The hyperventilating that we see in this process and the way that today’s hearing started with 90 minutes of theatrics that are pre-planned with certain members of the other side here, it shows a system that is wildly out of whack.

And thus a fourth and final point. The solution here is not to try to find judges who will be policymakers. The solution is not to try to turn the Supreme Court into an election battle for tv. The solution is to restore a proper Constitutional order with a balance of powers. We need Schoolhouse Rock back. We need a Congress that writes laws and then stands before the people and suffers the consequences and gets to go back to our own Mt. Vernon, if that’s what the electors decide. We need an Executive Branch that has a humble view of its job as enforcing the law, not trying to write laws in the Congress’s absence, and we need a judiciary that tries to apply written laws to facts and cases that are actually before it. This is the elegant and the fair process that the founders created. It’s the process where the people who are elected, 2 and 6 years in this institution, 4 years in the Executive Branch, can be fired. Because the justices and the judges, the men and women who serve America’s people by wearing black robes, they are insulated from American politics. This is why we talk about an independent judiciary. This is why they wear robes. This is why we shouldn’t talk about Republican and Democrat judges and justices. This is why we say Justice is Blind. This is why we give judges lifetime tenure and this is why this is the last job interview Brett Kavanaugh will have because he is going to a job where he is not supposed to be a super legislator. So, the question before us today is not what did Brett Kavanaugh think 11

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Part 5 of 5

years ago on some policy matter. The question is whether he has the 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. The question is, does he have the character and the temperament to do that. If you don’t think he does, vote no. But, if you think he does, stop the charades because at the end of the day I think all of us know that Brett Kavanaugh understands his job is not to rewrite laws as he wishes they were. He understands he is 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. Contrary to the onion-like smears that we have outside, Judge Kavanaugh doesn’t hate women and children. Judge Kavanaugh doesn’t lust after dirty water and stinky air. No, looking at his record it seems to me that what he actually dislikes are legislators that are too lazy and too risk adverse to do our actual jobs. It seems to me that if you read his 300 plus opinions, what his opinions reveal to me is a dissatisfaction, I think he would argue a Constitutionally-compelled dissatisfaction, with power-hungry Executive Branch bureaucrats doing our job when we fail to do it. And in this view, I think he is aligned with the founders. For our Constitution places power not in the hands of this city’s bureaucracy, which can’t be fired, but our Constitution placing the policy –making power in the 535 of our hands because the voters can hire and fire all of us. And, if the voters are going to retain their power, they need a legislature that’s responsive to politics, not a judiciary that’s responsive to politics. It seems to me that Judge Kavanaugh is ready to do his job. The question for us is whether we are ready to do our job.

>>2876333

It's from Fox News - I am transcribing.

>>2876580

He's our guy obviously