Several Republican senators offered admirable opening statements during the first day of the Senate confirmation hearing for Judge Brett Kavanaugh, President Trump’s nominee to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. Their statements yesterday were especially instructive, offering necessary reminders about the unique role of Supreme Court justices and members of the U.S. Senate, as well as the importance of civic awareness and education.

Senator Ted Cruz (R., Texas)

Thank you, Mr. Chairman. Judge Kavanaugh, welcome. Welcome to your family, to your friends. Demonstrating your good judgment, your wife was born and raised in West Texas, and you and she have been friends of Heidi and mine for 20 years. Thank you for your decades of public service, and I’m sorry that your daughters had to endure the political circus of this morning. That is, alas, the world that is Washington in 2018.

I want to discuss what this hearing is about and what it’s not about.

First, this hearing is not about the qualifications of the nominee. Judge Kavanaugh is, by any objective measure, unquestionably qualified for the Supreme Court. Everyone agrees that he is one of the most respected federal judges in the country. He has impeccable academic credentials — even if he did go to Yale — and you served over a decade on the U.S. Court of Appeals for the D.C. Circuit, often referred to as the ‘second highest court in the land.’ So, our Democratic colleagues are not trying to make the argument that Judge Kavanaugh is not qualified. Indeed, I have not heard anyone even attempt to make that argument.

Second, this hearing is not about his judicial record. Judge Kavanaugh has over 300 published opinions, which altogether amount to over 10,000 pages issued in his role as a federal appellate judge. Everyone agrees that a judge’s record is by far the most important indicium of what kind of justice that nominee will be. And, tellingly, we’ve heard very little today from Democratic senators about the actual substance of Judge Kavanaugh’s judicial record.

Third, it’s important to understand today is also not about documents. We’ve heard a lot of arguments this morning about documents. There’s an old saying for trial lawyers: If you have the facts, pound the facts. If you have the law, pound the law. If you have neither, pound the table. We’re seeing a lot of table-pounding this morning. The Democrats are focused on procedural issues because they don’t have substantive points strong enough to derail this nomination. They don’t have substantive criticism with Judge Kavanaugh’s actual judicial record, so they’re trying to divert everyone with procedural issues.

But let’s talk about the documents for a moment. The claims that the Democrats are putting forward on documents don’t withstand any serious scrutiny. Judge Kavanaugh has produced 511,948 pages of documents. That includes more than 17,000 pages in direct response to this committee’s written questionnaire, which is the most comprehensive response ever submitted to this committee. The more than a half million pages of documents turned in to this committee is more than the number of pages we’ve received for the last five Supreme Court nominees combined. Listen to that fact again. The over a half million documents turned over to this committee is more than the last five nominees submitted to this committee combined.

So, what’s all the fuss over the documents that are not turned over?

Most of those concerned Judge Kavanaugh’s three years as the staff secretary for President George W. Bush. Now many people don’t know what a staff secretary does. But that’s the position in charge of all of the paper that comes into and out of the Oval Office. Critically, the staff secretary is not the author of the paper coming into and out of the Oval Office; that paper is typically written by the attorney general, by the secretary of state, by other cabinet members, by other senior White House officials. The staff secretary is simply the funnel for collecting their views and then for transferring the paper back and forth. In other words, those documents written by other people say nothing — zero — about Judge Kavanaugh’s views. And they say nothing — zero — about what kind of justice Judge Kavanaugh would make. But they are by necessity the most sensitive and confidential documents in the White House. They are the documents that are going to the president — this is the advice and the deliberations of the president at the senior level, and the staff secretary is the conduit for those documents.

So, why is it that the Democrats are putting so much energy in saying, “Hand over all of those documents”?

Because they know beyond a shadow of doubt that President George W. Bush’s White House team is not going to allow every piece of paper that went to the president to be made public any more than any other White House would. Republican or Democrat, no White House would allow every piece of paper that went to and from the president to be made public. Indeed, there are rules and laws and procedures for when and how presidential papers become public. The reason the Democrats are fighting so loudly on this issue is they’re making a demand they know is impossible to meet — and by the way, is utterly irrelevant to what actually Judge Kavanaugh thinks, believes, or has said. It would open up all sorts of fishing expeditions to attack, re-litigate George W. Bush’s record as President, and what various cabinet members and senior advisers might or might not have said. But it is, at the end of the day, simply an attempt to distract and delay. Indeed, the multiple motions we’ve seen from Democrats to delay this confirmation — that reveals the whole joke. Their objective is delay.

So, what is this fight about? If it’s not about documents, it’s not about Judge Kavanaugh’s credentials, it’s not about his judicial record — what is this fight about? I believe this fight is nothing more and nothing less than an attempt by our Democratic colleagues to re-litigate the 2016 presidential election. 2016 was a hard-fought election all around. And, it was the first presidential election in 60 years where Americans went to the polls with a vacant seat on the Supreme Court, one that the next president would fill. Americans knew who had been in that seat: the late Justice Antonin Scalia, one of the greatest jurists ever to sit on the U.S. Supreme Court. It was the first time since President Dwight D. Eisenhower’s re-election campaign that a Supreme Court seat was directly on the ballot. Both candidates knew the importance of the vacant Supreme Court seat, and it was a major issue of contention in the presidential election. Donald Trump and Hillary Clinton were both clear about what kind of justices and judges they would appoint.

During all three presidential debates, both candidates were asked what qualities were most important to them when selecting a Supreme Court justice.

Secretary Clinton’s answer was clear. She wanted a Supreme Court justice who would be a liberal progressive willing to rewrite the U.S. Constitution, willing to impose liberal policy agendas that she could not get through the democratic process — that the Congress of the United States would not adopt, but that she hoped five unelected lawyers would force on the American people. That’s what Hillary Clinton promised for her judicial nominees.

Then-candidate Donald Trump gave a very different answer. He said he was looking to appoint judges in the mold of Justice Scalia. He said he wanted to appoint judges who would interpret the Constitution based on its original public meaning, who would interpret the statutes according to the text, and who would uphold the rule of law and treat parties fairly regardless of who they are or where they come from.

Then-candidate Donald Trump also did something that no presidential candidate has done before. He published a list of nominees that he would choose from when filing Justice Scalia’s seat, providing unprecedented transparency to the American people. All of this was laid before the American people as they went to the polls on November 8, 2016. And the American people made a choice that night.

Now, my Democratic colleagues are not happy with the choice the American people made. But, as President Obama famously said, “Elections have consequences.” Because the American people had the chance to vote, a national referendum on the direction of the Supreme Court. I have said a number of times that Justice Gorsuch’s nomination and Judge Kavanaugh’s nomination have almost a super-legitimacy in that they were ratified, they were decided by the American people in a direct vote in 2016.

And so the Democratic obstruction today is all about trying to reverse that election. They’re unhappy with the choice the American people want. And there’s a reason that the American people want strong constitutionalists on the U.S. Supreme Court.

Most Americans, and I know the overwhelming majority of Texans, want judges who will follow the law, and will not impose their policy preferences on the rest of us, and who will be faithful to the Constitution and the Bill of Rights — justices who will uphold fundamental liberties like free speech, like religious liberty, like the Second Amendment — that’s what this election was about.

And, if you look at each of these — let’s take free speech. It’s worth noting that in 2014, every Democratic member of this committee voted to amend the United States Constitution to repeal the free-speech provisions of the First Amendment. And sadly, every Democrat in the Senate agreed with that position, voting to give Congress unprecedented power to regulate political speech. It was a sad day for this institution. Years earlier, Ted Kennedy, the great liberal lion, had opposed a very similar effort. And Ted Kennedy said, “We haven’t amended the Bill of Rights in over 200 years. Now is no time to start.” Ted Kennedy was right then, and not a single Democrat in the U.S. Senate had the courage to agree with Ted Kennedy and support free speech.

Indeed, they voted party line to repeal the free-speech provisions of the First Amendment. That is radical. That is extreme. And it’s part of the reason the American people voted for a president who would put justices on the Court who would protect our free speech.

How about religious liberty? Religious liberty is another fundamental protection that the Democrats in the Senate have gotten extreme and radical on. Indeed, our Democratic colleagues want justices who will rubber-stamp efforts like the Obama administration’s efforts litigating against the Little Sisters of the Poor. Litigating against Catholic nuns trying to force them to pay for abortion-inducing drugs and others. That is a radical and extreme proposition. And to show just how dramatic Senate Democrats have gotten, every single Senate Democrat just a few years ago voted to gut the Religious Freedom Restoration Act. Legislation that passed Congress with overwhelming bipartisan support in 1993, was signed into law by Bill Clinton and yet, two decades later, the Democratic party has determined that religious freedom is inconvenient for their policy and political objectives. They want justices that will further that assault on religious liberty.

And finally, let’s take the Second Amendment. In the presidential debates, Hillary Clinton explicitly promised to nominate justices who would overturn Heller v. District of Columbia. Heller is the landmark decision issued by Justice Scalia, likely the most significant decision of his entire tenure on the bench, and it upheld the individual right to keep and bear arms. Now, Hillary Clinton was quite explicit. She wanted judges who would vote to overturn Heller and indeed, a number of our Democratic colleagues, that’s what they want as well.

Overturning Heller, I believe, would be a truly radical proposition. To understand why, you’d have to understand what the four dissenters said in Heller. The four dissenters in Heller said the Second Amendment protects no individual right to keep and bear arms whatsoever, that it protects merely a collective right of the militia. The consequence of that radical proposition would mean that Congress could pass a law making it a felony, a criminal offense, for any American to own any firearm. And, neither you nor I nor any American would have any individual right whatsoever under the Second Amendment. It would effectively erase the Second Amendment from the Bill of Rights. That is a breathtakingly extreme proposition. It is what Hillary Clinton promised her justices would do, and at the end of the day it’s what this fight is about.

We know that every Democratic member of this committee is going to vote no. We don’t have to speculate. Every single one of them has publicly announced they’re voting no. Doesn’t depend on what they read in documents, doesn’t depend on Judge Kavanaugh says at this hearing — they’ve announced ahead of time they’re voting no, and most of the Democrats in the Senate have announced that in the full Senate. But everyone should understand, Judge Kavanaugh has handed over more documents than any nominee — more than the last five combined, Republican and Democratic nominees. It’s not about documents, it’s not about qualification, it’s not about record.

What it is about is politics. It is about Democratic Senators trying to re-litigate the 2016 election and, just as importantly, working to begin litigating the 2020 presidential election. But we had an opportunity for the American people to speak. They did. They voted in 2016, and they wanted judges and justices who will be faithful to the Constitution. That’s why I’m confident at the end of what Shakespeare would describe as “a lot of sound and fury signifying nothing,” I am confident that Judge Kavanaugh will become Justice Kavanaugh, and will be confirmed to the United States Supreme Court. Thank you, Mr. Chairman.

Watch Senator Cruz’s opening statement here.

Senator Mike Lee (R., Utah)

Thank you, Mr. Chairman. Thank you, Judge Kavanaugh, and thank you also, Ashley, Margaret, and Eliza for being here.

I want to start by saying that the fact that there is so much angst over a single nominee, a single judicial nominee, tells you everything you need to know about why it is that we need judges, now more than ever, who are willing to read the law and interpret it based on what the law says, rather than on the basis of something else. It also tells you more than anything else you could need to know about the need to restore a discussion of civics in this country, to restore a discussion about federalism and separation of powers, about where power is concentrated and where it shouldn’t be, and what the role of each branch of the federal government is and is not.

Many of the comments, many of the outbursts that we’ve had today suggest that we need to return to some of those fundamental principles, and I don’t care whether you’re a liberal Democrat or a conservative Republican or something in between. These principles apply. They’re principles to which we have sworn an oath, and they’re principles that I think we would do well to restore and focus on once again. If ever we’re to return to an era of civility, we will return to that era on the basis of those foundational, structural principles within our Constitution.

Over the next few days, Judge Kavanaugh, a number of members of this committee are going to ask you questions, questions about cases that you’ve handled as a lawyer, cases that you’ve decided as a judge, about your record, about your qualifications. On that point about your record and your qualifications: The suggestion that you misled this committee at any point in your previous hearings is absurd, and the absurdity of that suggestion will be borne out in the coming days, I am certain of it. Some of these questions will in fact be fair, and others will be unfair, and I think it’s important for us to acknowledge that at the outset.

This is the third time you’ve had the quote-unquote privilege of appearing before this committee. So you’re seeing some familiar faces on this side of the dais. You’re also seeing some new faces, but I think you’ll find that in a lot of ways, nothing has really changed since you were last here twelve years ago. And some of these unfair questions will ask you to promise to vote a certain way in particular cases that are likely to come before the Court.

When you look back at history, answering these kinds of questions is sort of how the practice of holding these hearings began — so that Senators could ask nominees how they might vote, how they might rule, in particular cases. But this didn’t always happen. In fact, it wasn’t until 1916 that this even started. You see, there have been 113 justices confirmed to the Supreme Court so far. The first 66 were confirmed without a hearing. The idea of a hearing is relatively new. It’s about 102 years old. We went for between 125 and 130 under our constitutional republic without ever having a hearing. But regardless, we started having hearings just over a century ago.

The very first Supreme Court confirmation hearing occurred in 1916, with Justice Louis Brandeis. After Louis Brandeis was nominated to the Court, some called for a hearing. Now, if we’re honest with ourselves, if we’re honest about history, maybe it had to do with anti-Semitic fervor and the fact that Justice Brandeis was Jewish. But Senators also wanted to determine whether Brandeis would use his seat on the Supreme Court to advocate for some of the things that he had advocated for as a private citizen, as a public-interest attorney. They wanted to know how he might vote in particular cases. They didn’t ask Justice Brandeis to testify, significantly, but they did in fact ask some outside witnesses what they thought about his nomination.

The next important moment, one could argued, occurred in 1939, when Felix Frankfurter became the first nominee to himself testify before the committee. At the time, Frankfurter was controversial in part because he was he was born overseas. But senators also worried that Frankfurter was a radical based on his defense of anarchists in court. So again, senators wanted assurances about how Frankfurter might rule in particular cases, in particular what results he might reach in a particular type of case. Frankfurter, however, significantly, declined to engage with senators on those topics, and insisted that his public record spoke for itself.

Justice Stewart’s nomination in 1959 was another turning point. Senators seeking to resist Brown v. Board of Education wanted to grill Stewart on his views on integration. Others still wanted to grill Stewart about his views on national security. So senators turned up the heat a little bit more in that hearing. Like Frankfurter before him, Justice Stewart did not provide substantive answers to their questions. When they wanted to know how he might rule in particular cases, he appropriately declined, just as his predecessors had.

Twenty-eight years later, 28 years after Justice Stewart came through this committee, the Senate considered Robert Bork’s nomination to the Supreme Court. This was another significant turning point, and in my view, it remains a rock-bottom moment for the Senate, and for the Senate Judiciary Committee. Without getting into the gory details here, I think it suffices to say that Senator Ted Kennedy and Judge Bork did not agree on certain matters of constitutional law, and Kennedy’s response was to savage — unfairly in my opinion — the results Bork would reach if confirmed to the Supreme Court.

This history shows that, over the better part of a century, the Judiciary Committee has gradually created something of a new norm, a norm in which members demand that nominees speak about specific cases in return for favorable treatment from the committee as the jurists are going through this process.

Nominees, for the most part, have gracefully resisted trading confirmation in exchange for promises about how they might vote in particular cases brought before them. To give two famous examples: Justice Scalia refused to say whether Marbury v. Madison was settled law, on the ground that it could come before him. And sure enough, last term in Ortiz v. United States, the Supreme Court considered a case implicating the scope of Marbury. Likewise, Justice Ruth Bader Ginsburg created the so-called “Ginsburg standard” — no previews, no forecasts, no hints. Every current member of the Supreme Court has adhered to a similar principle, what we might called the “Ginsburg standard.”

Even though nominees have not caved to the pressure, I still believe that there are some aspects of the Senate’s approach here that might do a disservice to the country and might be frowned upon by future historians. If senators repeatedly ask nominees about outcomes, then the public will be more entitled, or at least more inclined, to think that judges are supposed to be outcome-minded, that that’s supposed to be their whole approach to judging, that that’s supposed to be what judging is in fact about. But this, of course, undermines the very legitimacy of the courts themselves, the very legitimacy of the tribunal that you’ve been nominated by the president to serve on. Over time, no free people would accept a judiciary that simply imposes its own policy preferences on the country, absent fidelity to legal principle.

There’s a better way for the Senate to approach its work. This process, in my opinion, should be about your qualifications, about your character, and perhaps most importantly, about your approach to judging, your own view about the role of the federal judiciary. It should not be about results in a select number of cases.

You’re obviously exceptionally well-qualified. Even your staunchest critics would not claim otherwise. Your academic pedigree, your experience as a practicing lawyer, your experience in government, and your twelve years experience sitting on what many refer to as the second highest court in the land, the U.S. Court of Appeals for the D.C. Circuit.

You are independent. You’ve written that “some of the greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law.” You’ve said that judges “cannot be buffaloed, influenced, or pressured into worrying too much about transient popularity when we are trying to decide a case” and that “one of the most important duties of a judge” is to “stand up for the unpopular party who has the correct position.”

And you’ve lived up to your words during your time on the bench. Everyone knows that you served in the Bush administration. And yet when you became a judge, in only two years, you ruled against the Bush administration a total of eight times. For you, it simply doesn’t matter who the parties are. It simply doesn’t matter that you may have worked for an administration before you became a judge. The only thing that matters is your commitment to correctly applying the law to the facts of any particular case.

As far as your approach to judging, you have appropriate respect for precedent. You co-authored an 800-page book on precedent that, among other things, explains that a change in a court’s membership alone “should not throw former decisions open to reconsideration or justify their reversal.” You’ve explained that, for a precedent to be overruled, it must be “not just wrong but a case with serious practical consequences.” You’ve voted to overturn circuit precedent only four times during your time on the D.C. Circuit — and each of those cases involved a unanimous decision reached by your colleagues. And you follow binding precedent even if you believe that binding precedent was itself wrongly decided.

You decide cases on legal merits, not based on the identity of the parties, and certainly not based on any political beliefs that you may harbor. We’ve already heard that your nomination will somehow be bad for women, for the environment, for labor unions, for civil rights, for a whole host of other things that Americans hold near and dear. I have a laundry list of cases in which you’ve ruled for people in each of those groups.

But there’s a more fundamental point here that I think needs to be made: The judiciary’s decisions are legitimate only to the extent that they are based on sound legal principle and reasoning. And ruling for a preferred party is not itself a sound legal principle. It’s quite to the contrary. Jury-rigging decisions and backfilling legal reasoning to reach a particular result — a particularly politically acceptable result in a particular case, no matter how desirable that result might be in any instance — is not a legitimate mode of judicial decision-making, and no free people purporting to have an independent judiciary should ever be willing to settle for that.

So my plea to my colleagues today is that we ask Judge Kavanaugh hard questions. I believe we’re required to do so. The Senate is not and never should be a rubber stamp, particularly when it comes to issuing lifetime appointments, even lifetime appointments on the highest court in the land. But if you disagree with an opinion he’s written, make a legal argument as to that issue. Explain why you think it’s wrong. Don’t complain about the results as if the result itself is proof that he’s wrong, when you separate out the result from the legal analysis, from the facts and how they interact with the law in that particular case. And don’t ask him to make promises about outcomes in particular cases. If it’s unacceptable for the president to impose a litmus test, it is surely unacceptable for the United States Senate to do so.

Judge Kavanaugh, I look forward to your testimony, and I’m grateful to you and your willingness to serve our country and to be considered for this important role.

Watch Senator Lee’s opening statement here.

Senator Ben Sasse (R., Neb.)

Senator Klobuchar, you did Madison, Lin-Manuel Miranda, the Magna Carta, and your Dad taking you to court. Well done. I had all that on my bingo card.

I have little kids, and I’ve taken my two little girls to court a few times, too, mostly to juvie just to scare them straight, not to turn them into attorneys. There’s wisdom in Minnesota.

Congratulations, Judge, on your nomination. Ashley, congratulations, and condolences. This process has to stink. I’m glad your daughters could get out of the room, and I hope they still get the free day from school.

Let’s do some good news–bad news.

The bad news first, Judge: Since your nomination in July, you’ve been accused of hating women, hating 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 quote, “People will die if Brett Kavanaugh is confirmed.”

This drivel 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’ve appeared before you during your twelve years on the D.C. Circuit. And those who’ve 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 don’t actually 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 to 20 months in America.

Senator Klobuchar 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, and my guess is that Brett Kavanaugh would condemn them.

But really, 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. People are going to pretend that Americans have no historical memory and supposedly there haven’t been screaming protestors saying, “Women are going to die” at every hearing for decades. But this has been happening since Robert Bork. This is a 31-year tradition. There’s 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 confirmation 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 they 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 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 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 Schoolhouse 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. It is not healthy, but it is what happens, and it’s something our Founders wouldn’t be able to make any sense of.

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 by the locus 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 start with Article III. But really, we need Article III as 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 is because policymaking 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 ought to be protesting in front of the Supreme Court. They should be protesting in front of this body.

The legislature is designed to be controversial, noisy, sometimes even rowdy, because making laws means we have to hash out 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 if they want to hire us or fire us. They don’t have to hire us again.

This body is the political branch where policymaking 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 all the politicized decisions happen here. Not in Article II or Article III.

So, that brings us to a second point. How do 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 1930s and then ramping up since the 1960s, 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 policymaking, kind of in a way, lawmaking is happening right now.

This is not what Schoolhouse Rock says. There’s 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.  

And 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 bureaucracy X, Y, or Z to make law-like regulations. That’s mostly what we do here. We go home and 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. It just seemed like I needed to unite us in some way.)

So, I admit that there are rational arguments that one could make for this new system. The 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 can also impugn our wisdom if you want. But when you’re talking about technical, complicated matters, it’s true that the Congress would have a hard time sorting out every final dot and tittle 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 reelected over and over again — and that’s your highest goal — if your biggest long-term thought around here is about your own incumbency, then actually giving away your power is a pretty good strategy. It’s not a good life, but it’s a pretty good strategy for incumbency.

And so, at the end of the day, a lot of the power delegation that happens from this branch is because the 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 power to an unaccountable fourth branch of government, it means the people are cut out of the process.

There’s 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 that makes 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 and the thicket of all the lobbyists in this town to do executive-agency lobbying? They can’t.

And so what happens is that they don’t have any 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 they have power over.

All the power right now, or almost all the power right now, happens offstage. 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 ’em. You can demonize ’em. You can try to make ’em 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 nine 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’re talking about. They’re talking about trying to make the justices do something that the 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 us 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 the 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 Mount 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 in 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 — two and six years in this institution, four 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’re insulated from 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 Democratic 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 ever have. Because he’s going to a job where he’s not supposed to be a super-legislator.

So, the question before us today is not what did Brett Kavanaugh think eleven years ago on some policy matter. The question before us is whether or not 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 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 isn’t to rewrite laws as he wishes they were. He understands that he’s 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 hear 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-averse 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 failed to do it.

And in this view, I think he’s 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 places the policy-making power in the 535 of our hands because the voters can hire and fire 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’re ready to do our job. Thank you, Mr. Chairman.

Watch the video of Senator Sasse’s opening statement here.