Listen to Ben Sasse

Why can't Supreme Court Justices be fired?

Senator Ben Sasse, July 10, 2018

“One of the most consequential duties of the Senate is the consideration of a Supreme Court nominee. This is the congress' opportunity to shape the direction of the federal courts and to defend a judiciary has focused on laws, not on policy. For those of us who have been called to this limited role for a time, this work is important. It will outlast us by decades. None of us should take this duty lightly.

“With the appointment of Justice Gorsuch last year and now a record 22 judges to the courts of appeals, the past 18 months have been among the most consequential for the judiciary in the history of the nation. And that was before Justice Kennedy's retirement. And for as significant as things have been so far, the last year and a half of the judiciary, the current Supreme Court vacancy is arguably the most important thing that the Senate will do this year. This vacancy is a remarkable opportunity to affirm what the role of a judge is under our constitutional system of republicans, small "R," not partisan party Republican, but small "R" republican government.

“Fundamentally, this shouldn't be an exercise in policymaking, as vital and as important as policymaking can be at times. Making law is not the job of the courts in any way, shape, or form.

“Don't get me wrong. Setting goals and making policy can be very important, but it's done in the open and it starts at home. Americans answer our biggest questions outside of government with our friends and neighbors, with our communities of worship, and our rotary club, and our small businesses with entrepreneur and all sorts of volunteerism in America. And then when you get to government, the policymaking choices that the American people make, they do through their representatives who they elect, who they can hire and fire.

“To put it bluntly, members of the Senate can be fired. Members of the House of Representatives at the other end of this building can be fired. 435 of the 535 people we work with in the Congress are always within 23 months and 29 days of being sent back home by the “we the people” who are actually in charge of policymaking in America.

“But the Court is different. Nobody back home can fire a Supreme Court Justice. They have lifetime tenure. We should reflect more often on why our founders decided to give members of the judiciary lifetime tenure.

“That's why we don't want those judges with their lifetime tenure to be writing laws or making policy. If a judge wants to make policy, he or she should take off their black robe of impartiality and they should run for office. It's a legitimate thing to do. All of us in this body have done it. We think it's a way to love our neighbor and to serve our community. But in our system of we the people the voters get to decide who gets to make policy.

“Judges have black robes and they have lifetime tenure. They are not policymakers. Regrettably, as our ever-fraying sense of common identity in America is falling apart, in the eyes of many of our citizens, we are warping the role of the courts and of judges, reducing the courts from the plain and ever compelling words of Marbury v Madison that the job of the Supreme Court is “to say what the law is,” not what some judge wishes it were.

“We are, instead, seeing the judiciary warped into a profane occupation of pronouncing policy preferences but without any mechanism of meaningful accountability by which the people could still be in charge. We should not let that stand. We should not want to see that perpetual warping of the judiciary into a place of being policymakers and yet policymakers without accountability.

“We need a recovery of basic civics in the country, about what the role of a judge is and what the purpose of the courts are. We should not let this confirmation process turn into a battle for our own policy preferences that just breaks down our constitutional architecture – the constitutional architecture on which American free society depends.

“Sadly, that is apparently what many people in the Resistance aim to do. They aim to Bork Judge Kavanaugh's nomination by any means necessary. We're less than 24 hours into this and folks are already declaring that if you can't see that Brett Kavanaugh is a cross between Lex Luther and Darth Vader, then you apparently aren't paying enough attention.

“The American people are smarter than that. That kind of charge is silly and the American people don't want judges who think of themselves as super legislators. Unfortunately, far left Super PACs are shouting we have reached the apocalypse.

“I was outside last night right at the edge of the Supreme Court steps and in addition to the signs that were being held up saying that Brett Kavanaugh was hastening the end of the days, there were on the ground other signs printed up with other potential nominees' names to the court about how they were the ones who were going to bring about the end of days. This isn't true. We need less WWE Thunderdome and a lot more Schoolhouse Rock. The confirmation process of the Supreme Court nominee should be an occasion to do basic civics with our kids and it shouldn't be dividing Republicans and Democrats about policy preferences.

“It should be an occasion for Americans to come together and talk again about why judges wear black robes and why they have lifetime tenure. This should be a test of the character, the competence, and the constitutional commitments of someone would been nominated to the judiciary because in the American system judges have a peculiar role, no more and no less than what Article 3 of the Constitution gives them.

“In Judge Kavanaugh we have a compelling guy. He's a standout dad and even his most ardent critics will argue he's one of the most thoughtful judges on the courts of appeals today. He's got a ton of impressive opinions to his name, especially on the subjects of separation of powers and administrative law, which are now dominating the docket not only of the D.C. Circuit Court of Appeals where he currently sits but also on the Supreme Court to which he’s been nominated. Judge Kavanaugh was put on the Circuit Court at age 41, 12 years ago, a remarkably young man to be put on such a prestigious court.

“And in his 12 years on the court he authored more than 300 opinions. And I think the current count is more than 100 of his opinions have been cited by more than 200 of his peers on other courts across the country. He is truly a judge's judge, and last night I heard from people on both the right end and the left end of the policy spectrum that legal experts who have said to me quotes that were sort of remarkably eerie in their echo: ‘Brett Kavanaugh is always the smartest person in every room he's in, and yet when you're in the room you'd never know that he knows it because of his humble manner and winsome ways.’

“If my colleagues want to pursue these confirmation hearings as mere naked partisanship, they should actually resign their seats and try to get cable news jobs. But if we want to take our jobs seriously, if we want to have an honest debate, then we should be taking seriously our charge to uphold the three branches of government, their separate responsibilities, and the ways they check and balance one another.

“With those 300 opinions, we've got a lot of homework to do. I'm looking forward to beginning to dive in further into Judge Kavanaugh's opinions of the last 12 years and I'm pretty confident that what we're going to find is a guy who has lots of deference and respect for the limited job that a judge is called to fulfill. I hope that my colleagues in this chamber will join me in diving into those opinions and foreswearing the Thunderdome silliness that many people outside are urging us to turn the confirmation process into.”

Comments
No. 1-17
farmersonlydotcom
farmersonlydotcom

@Jules* You're never going to keep all those filthy mexicans out unless you step up your word count. A child could leap over that last nonsense fantasy you typed out.

So you want to introduce an entirely new scheme for review? Which would only be used by both sides to completely grid-lock the court? HA!

The fact that you can impeach a Supreme Court Justice means that the Oath of Office is in fact binding already. I guess that's way too complicated for you to grasp though.

Jules*
Jules*

Judges are not elected.

Make the oath of office binding, so rulings that violate the oath result in loss of the position and the benefits. That is, introduce the possibility of consequences for malfeasance. Just the possibility of being found ruling in violation of the Constitution would force review of the Constitution by these rogue judges, and would have a chilling effect on their current arrogance, which is based on the conviction they can do whatever they want and it is nearly impossible to hold them accountable.

BuzzFuzzel
BuzzFuzzel

Judging by the performance of both houses of the legislative branch over the past few decades I would have to say it is doubtful even 10% of them understand the Constitutional separation of powers with checks and balances. Take for example their failure to exercise control of the National Debt, their utter failure to gain compliance and cooperation from the executive branch in their oversight responsibilities; and their total capitulation to the Executive branch which has ignored statutes by failing to insure the Laws passed by Congress be faithfully executed. Contempt of Congress has become a meaningless concept, except that is for the contempt I and a majority of my fellow citizens have for that useless branch of our government.

GumBoocho
GumBoocho
  1. All federal judges should have 10 year term limit.
  2. If either house votes it by majority, any judge at any time should have to stand for a recall election. US is supposed to be a Republic, not an Oligarchy.
DavidMKern
DavidMKern

The issue is that Erick, Sasse, and the non-progressive portion of America want judges to rule on the plain text of the Constitution, while the other half of America wants the exact opposite. Because the progressive left doesn’t have the popular approval to pass the legislation it wants, it has installed judges willing to ignore the clear meaning of the Constitution to conjure up new constitutional rights out of thin air. When Supreme Court rulings are based on the word “penumbra,” it is clear that judicial magicians are inferring constitutional rights that don’t exist. However, no amount of constitutional arguments from Erick, Ben Sasse, or any other conservative is going to convince the progressive left that the courts constitutional role is to interpret the law rather than to create it. That genie has already been let out of the bottle a half century ago. The progressive left is at war with the US Constitution. They are fighting to win, and if the only way they can win is by cheating, it just doesn’t matter to them:

Stories