September, 2018
Washington -- The Kavanaugh hearings are now over. Senator Ben Sasse (my Nebraska senator) has captured headlines with his condemnation of the confirmation process. He blames Congress for not doing its job of legislating, forcing the Supreme Court to be politicized over issues that should rightly be dealt with by the legislative branch.
That is a valid criticism. Sasse also correctly notes that Congress has been giving away its powers to the the executive as well as the judicial branch.
There is a remedy, of course, and that is for Congress to exercise its Constitutional powers rather than to shrink from them vis-a-vis both other branches.
By pointing all this out, Sasse has either built a powerful case for his no vote on Kavanaugh or painted himself into a corner as to why not. Sasse's no vote would simultaneously strike a blow against a nominee who champions the expansion of executive power and a blow for Congress's assertion of its advice and consent powers over judicial nominees.
Sasse has essentially asked himself to put up or shut up. Could a no vote from Sasse be in the offing?
Beyond the Sasse disquisition on the failures of Congress, there are other reasons why traditional conservatives – if Sasse is one – would vote against Kavanaugh. He is an activist judge who has shown minimal respect for stare decisis and has demonstrated scant regard for Madisonian checks and balances. I am not the first to note that Kavanaugh was a late addition to the list of potential nominees with more traditionally conservative credentials, likely because his expansive view of executive power could be the deciding factor in the struggle of the President against the Special Counsel.
There is another reason Sasse might vote no, and be joined by one or two other Republicans. That is to put the Kavanaugh nomination in the hands of Democratic senators from red states, forcing their hands to support the Trump nominee or face defeat at the polls. (It is the conventional wisdom that Senators Manchin, Heitkamp, Donnelly, and McCaskill are in trouble if they do not vote for Kavanaugh.) This scenario could come to pass even without political chicanery behind it, so it is worth exploring. I am inclined to think that these senators' votes for Kavanaugh would be more likely to spell their demise than their votes against him, as they would lose Democratic votes and enthusiasm. So it is not beyond the pale to think that devious minds (like Senator McConnell's) are thinking of how both to confirm Kavanaugh and hold the Senate in Republican hands through the Kavanaugh vote.
That might be too much for Sasse. His record shows he talks a good line but seldom, if ever, follows through with action, either on principle or on politics.
