Predictably, the start of Brett Kavanaugh’s confirmation hearing to the Supreme Court was an embarrassing fiasco for almost everyone involved. The Republican chair of the Judiciary Committee, Senator Chuck Grassley, had barely begun his opening remarks before Democratic Senator Kamala Harris interrupted to demand the meeting be adjourned, and less than two minutes in protestors started screaming. Protestors continued to interrupt the hearing, which was mostly just senatorial demagoguery on camera anyway, for the next four hours or so. There are many reasons for this: the stakes are high, everything connected with President Trump is radioactive, and the midterms are just two months away. But hours into a series of diatribes from senators on both sides of the aisle, Senator Ben Sasse from Nebraska took a different approach.
Sasse argued, rightly, that the “deranged comments” at the hearing were not really about Kavanaugh, or even the last two years of Trump – but instead, that the Supreme Court nomination process has been broken for the last 31 years, since the Senate’s atrocious Robert Bork hearings. In Sasse’s telling, Bork’s hearings exposed something new about the way we view the court. We no longer treat justices as impartial interpreters of the law, but as politicians wearing “red and blue jerseys.”
This is particularly dangerous for three reasons. First, the court is the only unelected branch of the federal government precisely because it is supposed to be apolitical. If justices are merely politicians in robes, then we the people should vote on them. Second, over the last half century the two elected branches of government have regularly ceded more and more authority to the judiciary. As Sasse notes, this is largely because it is easier for Congress and the president to punt responsibility on difficult questions to the court, since justices are immune from electoral consequences. This has the effect of permanently increasing the court’s role while simultaneously diminishing the public’s democratic influence. Third, we have also begun treating the court’s decisions as the final word on the Constitution. That is, we no longer simply see the Supreme Court as the highest level of the judicial branch, but as the highest level of government. Once the court has ruled, we the people and our elected representatives are supposed to meekly obey.
Sasse is right about the current situation, but it was not always this way. Both presidents and Congress used to argue against supremacy claims of the judiciary. In one example, Abraham Lincoln famously rejected claims of judicial supremacy after the Supreme Court’s Dred Scott ruling, which threatened to permanently enshrine the right of slavery, not just in slave states, but in the whole Union. Democratic Senator Stephen Douglas castigated Lincoln for disagreeing with the court, and argued it was unconstitutional, indeed, even un-American, to critique the court’s authority. For Douglas, once the court decided something, the issue was permanently closed. Lincoln responded by arguing that it is the Constitution that is supreme, not the judiciary. The Supreme Court is tasked with interpreting the Constitution, but that does not mean the court is always right. “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” Lincoln argued, “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” In short, we will have turned our democracy into an oligarchy of nine men and women in robes. But since 1958 in Aaron v Cooper, the Supreme Court has claimed that its decisions cannot be questioned by the elected branches, and those branches have largely given in.
Collectively, this dramatically raises the stakes for judicial hearings. If justices are merely politicians who have the final word on our most important national debates, then Kavanaugh’s confirmation hearing is not about his qualifications, but about how he will rule. And because justices are so rarely replaced, each vote matters more.
So Sasse is right to conclude that the circus hearings this week are not really about Kavanaugh, or even about Trump. Our judicial hearings have been a spectacle for three decades. But Trump and Congress are not doing anything to fix the problem. For that to happen we would need a Congress responsible enough to do its job by legislating on tough issues rather than deferring to the court, and a president willing to not just nominate justices that care about the Constitution, but capable of articulating, as Lincoln did, why the judiciary is both critically important in our system, and yet not supreme. It would, in short, take a president with a lot less bluster and a little more Sasse.