In 2018, at the confirmation hearings for Judge Brett Kavanaugh, Senator Ben Sasse gave something of a Civics 101 lesson that is worth hearing again—and sharing.
He explains: “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.”
You can watch it above.
His four main points are as follows.
1. In our system, the legislative branch is supposed to be the center of our politics.
2. It’s 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.
3. 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. It is not healthy, but it is what happens and it’s something our founders wouldn’t be able to make any sense of.
4. We badly need to restore the proper duties and the balance of power from our constitutional system.
Here is Senator Sasse’s October 12, 2020, opening statement in the confirmation hearings for Amy Coney Barrett, giving an “8th grade lesson” in civics and religious liberty.
I think it would be very useful for us to pause and remind ourselves and do some of our civic duty to eighth graders to help them realize what a President runs for, what a Senator runs for, and on the other hand why Judge Barrett is sitting before us today and what the job is that you’re being evaluated for.
So, if we can back up and do a little bit of eighth grade civics I think it would benefit us and benefit the watching country – and especially watching eighth grade civics classes.
So, I’d like to distinguish first between civics and politics because there was a time – the Chairman said at the beginning of this hearing – there was a time when people that would be as different as Ruth Bader Ginsburg – and she was a heroic woman – that’s absolutely true, and Antonin Scalia, another brilliant mind and your mentor. People that different could both go through the Senate and get confirmation votes of 95 or 98 votes. And the Chairman said at the beginning of the hearing he doesn’t know what happened between then and now.
I think some of what happened between then and now is we decided to forget what civics are and allow politics to swallow everything. So, if I can start I’d like to just remind us of the distinction between civics and politics.
Civics is the stuff we’re all supposed to agree on regardless of our policy view differences. Civics is another way we talk about the rules of the road. Civics 101 is the stuff like Congress writes laws, the executive branch enforces laws, courts apply them.
None of that stuff should be different if you’re a Republican or a Democrat or a Libertarian or a Green Party member. This is basic civics. Civics is the stuff that all Americans should agree on like religious liberty is essential.
People should be able to fire the folks who write the laws and the voters can’t fire the judges. Judges should be impartial. This is just Civics 101.
Politics is different. Politics is the stuff that happens underneath civics. Civics is the overarching stuff we as Americans agree in common. Politics is the subordinate, less important stuff that we differ about.
Politics is like if I look at my friend Chris Coons and I say “Listen up jackwagon, what you want to do on this particular Finance Committee bill is going to be way too expensive and might bankrupt our kids.” Or if Chris looks back at me and says “Listen up jackwagon, you’re too much of a cheapskate and you’re underinvesting in the next generation.” That’s a really important debate. That’s a political debate. That’s not civics. Civics is more important than that. Civics doesn’t change every 18-24 months because the electoral winds change and because polling changes.
I think it’s important that we help our kids understand that politics is the legitimate stuff we fight about, and civics is the places where we pull back and say, “Wait a minute. We have things that are in common, and before we fight again about politics, let’s reaffirm some of our civics.”
So, I’d like to have just sort of a basic grammar of civics for five minutes. One thing we should all agree on and two things that we should all disagree with. We should agree on it, but one thing we agree about and are in favor of, and two things that we agree on that we should all reject.
First, a positive, grand, unifying truth about America, and that is religious liberty. Religious liberty is the basic idea that how you worship is none of the government’s business. Government can wage wars, government can write parking tickets, but government cannot save souls. Government is really important. War is important. Parking tickets are important. But your soul is something that the government can’t touch. So, whether you worship in a mosque, or a synagogue, your faith, or your lack of faith, is none of the government’s business. It’s your business, and your family’s, and your neighbor’s and all sorts of places where people break bread together and argue, but it’s not about power, it’s not about force, it’s not about the government.
This is the fundamental American belief. Religious liberty is one of those five great freedoms clustered in the First Amendment — Religion, Speech, Press, Assembly and Protest — these five freedoms that hang together, that are the basic pre-governmental rights, are sort of Civics 101 we all agree on well before we get to anything as relatively inconsequential as tax policy. So, civics should be the stuff we affirm together. And contrary to the belief of some activists, religious liberty is not an exception. You don’t need the government’s permission to have religious liberty.
Religious liberty is the default assumption of our entire system, and because religious liberty is the fundamental 101 rule in American life, we don’t have religious tests. This committee isn’t in the business of deciding whether the dogma lives too loudly within someone. This committee isn’t in the business of deciding which religious beliefs are good and which religious beliefs are bad and which religious beliefs are weird. And I just want to say, as somebody who’s self-consciously a Christian, we got a whole bunch more really “weird” beliefs. Forgiveness of sins, the Virgin Birth, resurrection of the dead, eternal life. They’re a whole bunch of really, really crazy ideas that are a lot weirder than some Catholic moms giving each other advice about parenting. And yet there are places where this committee has acted like it’s the job of the committee to delve into people’s religious communities.
That’s nuts. That’s a violation of our basic civics. That’s a violation of what all of us believe together. This is not a Republican idea. It is not a Democrat idea. It’s a Democrat idea and a Republican idea, but more fundamentally, it’s an American idea. The good news is whether you think your religious beliefs might be judged wacky by someone else, it’s none of the business of this committee to delve into any of that in this context, because in this committee, and in this Congress, and in this constitutional structure, religious liberty is the basic truth. And whatever you, or I or Judge Barrett believe about God isn’t any of the government’s business. We can all believe in that in common.
We should all reaffirm that in common, and that should be on display over the course of the next four days in this committee. Now a couple of terms that all of our eight-graders should know as things we should reject in common. And again, shared rejection, not Republican versus Democrat or Democrat versus Republican, but a shared American rejection. And the first is this: judicial activism. Judicial activism is the idea that judges get to advocate for or advance policies, even though they don’t have to stand for election before the voters and even though have lifetime tenure.
Judicial activism is the really bad idea that tries to convince the American people to view the judiciary as a block of progressive votes and conservative votes, Republican justices and Democratic justices. This is the confused idea that the Supreme Court is just another arena for politics. When politicians try to demand that judicial nominees, who are supposed to be fair and impartial, when politicians try to get judicial nominees to give their views on cases or to give their views on policies, to try to get them to pre-commit to certain outcomes in future court cases, we are politicizing the courts and that is wrong.
That is a violation of our oath to the Constitution. Likewise, when politicians refuse to give answers to the pretty basic question of whether or not they want to try to change the number of justices in the court, which is what court packing actually is. When they want to try to change the outcomes of what courts do in the future by trying to change the size and composition of the Court: that is a bad idea that politicizes the judiciary and reduces public trust.
On the other hand, depoliticizing the Court looks a lot like letting courts and judges do their jobs and the Congress do our jobs. You don’t like the policies in America? Great, elect different people in the House and in the Senate and in the presidency. Fire the politicians at the next election, but voters don’t have the freedom to fire the judges; therefore, we should not view judges, and we should not encourage the judges or public to view them, as ultimately politicians who hide behind their robes. The antidote to judicial activism is originalism.
Originalism, also known as textualism, is basically the old idea from eighth grade civics that judges don’t get to make laws. Judges just apply them. An originalist comes to the court with a fundamental humility and modesty about what the job is that they are there to do. An originalist doesn’t think of herself as a super legislator whose opinions will be read by angels from stone tablets in heaven. Judicial activism, on the other hand, is the bad idea that judges’ black robes are just fake, and truthfully they are wearing red or blue partisan jerseys under there.
We should reject all such judges, and so today, when we have a nominee before us, we should be asking her questions that are not about trying to predetermine how certain cases will be judged. A final term that we should be clear about, I mentioned early but I think it’s worth underscoring, is we should underscore what is court packing.
Court packing is the idea that we should blow up our shared civics, that we should end the deliberative structure of the Senate by making it just another majoritarian body for the purposes of packing the Supreme Court. Court packing would depend on the destruction of the full debate here in the Senate, and it is a partisan suicide bombing that would end the deliberative structure of the United States Senate, and make this job less interesting for all 100 of us, not for 47 or 53, because it’s hard to get to a super majority that tries to protect the American people from 51-49, 49-51 swings all the time. What blowing up the filibuster would ultimately do is try to turn the Supreme Court into the ultimate super-legislature.
Court packing is not judicial reform, as some of you who wrote the memo over the weekend got the media to bite on.
Court packing destroying the system we have now. It is not reforming the system we have now, and anybody who uses the language that implies filling legitimate vacancies is just another form of court packing, that’s playing the American people for fools.
The American people actually want a Washington D.C. that depoliticizes more decisions, not politicizes more decisions.
So, Judge, I am glad that you are before us. I am looking forward to hearing your opening statement later today, and I look forward to the questioning you have to endure over the next two or three days even though you probably look forward to it a little bit less.
Congratulations and welcome.