Senator Ben Sasse of Nebraska, a member of the Judiciary Committee, joined me this morning:
HH: Joined by Ben Sasse, Senator from Nebraska. Senator, welcome back. A quick question – what do you make of the anonymous op-ed in the New York Times?
BS: You know, I don’t know how to talk about it, yet. I mean honestly, I’m still processing it. It’s just so similar to what so many of us hear from senior people around the White House, you know, three times a week. So it’s really troubling, and yet in a way, not surprising. And I get, again, I want to be cautious, because I’m still processing it, but I think two things, morally. First, I think there are lots of really, really good people around the President who are trying to restrain his impulsiveness and his just regular lack of reflection on the long-term implications of different issues. And so I think it’s a very moral act to love your country, and frankly try to care about Donald Trump with all the challenges that every human has, but his are kind of unique. I think it’s a good way to serve your neighbor to stay in the administration even when you’re worried. I don’t understand the morality of why anyone would write the piece, because it seems pretty obvious to me that what it’s going to do is foster more paranoia. I mean, the team at the White House, again, lots of really good people there, but the team at the White House doesn’t work together well. They’re infighting all the time. And that starts at the top. And I think publishing something like this only makes that worse. So I wish whoever it was wouldn’t have done it, but I think that the stuff that’s in it is frankly not surprising to those of us who are trying to help the White House stay on track most days, because this is what you hear from two-thirds of the senior people there.
HH: I agree with that. I made that point on Meet the Press Daily last night. When you have a mercurial president, the way to make him less mercurial, if that’s your goal, is not to plant an anonymous op-ed in the New York Times slamming him as unbalanced and maybe in need of the 25th Amendment. That’s not the way to get what you want. So I question the motive.
BS: I do, too. I think that the ultimate decision to publish feels self-serving, and so for the sake of public trust, I think if somebody wants to talk about the 25th Amendment, they ought to do it in public. I think it’s obvious that what happens now in a world where we don’t really debate very much the actual substance of where the country’s going, I get why someone who might think about publishing it in their own name would know that then, they become the whole story, and it’s where they came from and what grievance they’re supposedly harboring, and what moment they flirted with voting for Bill Clinton in 1992 so they shouldn’t be trusted. And so I think there are arguments for not wanting to do it in your own name, but I ultimately think you know, if you want a White House with more big cause/low ego people working there, and you know that that has to start at the top, the last thing you really would want to do is try to have the President spend the next you know, 72 hours panicked, running around doing an interrogation of everybody. But I mean, the drama of this op-ed, the drama of the Woodward book, the drama of the Omarosa tapes, the drama of Cohen, the drama of Manifort, the drama of just the three-ring circus that is the White House almost every day, I think that it exhausts the American people. And I know that the founders would regard anything like this as you know, really unhelpful. You don’t run the country as a soap opera. And these people, most of them who are wanting the drama, shouldn’t be anywhere near the presidency. And so most of the fighting that he, the President uses the word fighting all the time. But most of the fighting is inside his own team.
HH: Now there are points in the Kavanaugh hearings where we also have circus. But there was a lot of substance yesterday. I want to focus on the substance, most particularly this. My pro-life friends are concerned that Judge Kavanaugh in his exchange with Senator Feinstein said precedents on precedents are important, Casey, in that case, confirming Roe, and that precedents on precedents have to be studied as such. But his favorite case, Brown V. Board, the highlight, the number one case, the most important moment in Supreme Court history, is the reversal of a precedence on precedence, Plessy, which was itself wrongly decided 58 years after it was wrongly decided. So what would you say to pro-life people about what you heard Judge Kavanaugh say about precedence on precedence yesterday, Senator Sasse?
BS: Have you hacked my laptop, Hugh? I literally, we are, we are singing off the same song sheet. I plan to, I had planned to focus on 1st Amendment issues today. I get 20-22 minutes early this afternoon, and I think I’m going to do exclusively precedent for reasons exactly related to what you’re saying. I mean, A) it is complicated stuff before we even get to Roe and pro-life issues. But B) it’s complicated stuff that the American people really haven’t ever had debated in front of them. So there’s a lot of reasons why thoughtful, hard-working Nebraskans who are smart and engaged don’t really know how to think about precedent, because it’s not stuff we’ve dealt with. And it seems to me that he’s saying two different things which are reconcilable, but I’m worried about some of the gray line between them. On the one hand, when there’s a precedent, you don’t want every circuit court in America to be making up their own decisions about whether or not that precedent is a precedent that’s a big deal. On the other hand, Plessy. I mean, there are obviously cases where, situations where cases have been wrongly decided, and they need to be overturned. And no matter how many times people use words like superprecedent or precedent on precedent, or confirmed precedent, it still doesn’t change the fact that, and precedent does, as he rightly says, go all the way back to an understanding that’s in Article III proper. But it doesn’t mean that there are never decisions that are wrong. And so I want to hear him talk about that, and how we know when things are wrong why when Brown V. Board in 1954, which is indeed one of the most important moments in not just Supreme Court history, but American history, why you would know that 58 years after Plessy, it was wrong and should be overturned, and other ones sound like they’re sacrosanct.
HH: I believe the answer lies in the concurring opinion of Chief Justice Roberts in Citizens United where he runs through the stare decisis factors, which Judge Kavanaugh also referred to yesterday, one of which is did the decision settle the country as to the issue at hand, as it has, for example, on same sex marriage? The country is settled on that. It is not settled on abortion rights. Also, reliance damages, which he brings up, there are ways to distinguish precedents on precedents. And usually, it’s on those two issues. Did the country accept your precedent on precedent? Or did it fight back, as it did with Plessy and the civil rights action and the pro-life movement? And indeed, do people have reliance damages built in on the old precedent? But that’s pretty high-minded stuff. Do you think the country will follow that?
BS: Well, can we flip the table and you become law professor for a minute and tutor me, because I think that what you’re saying makes a lot of sense. And yet, aren’t you also kind of saying that the justice’s job is now to be a little bit of a sociological analyst and a pollster to determine when the country is settled on the issue? You and I both think these guys aren’t supposed to be politicians. We both think that when liberal justices start talking about international law, if they were using issues like you know, settled opinion, and they meant in the elite, international community, you and I both blow a gasket. So what is it, how do we decide when and how they do that analysis of where the country is?
HH: I quote Mr. Dooley. No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns. That was heard of Mr. Dooley in one of his famous remarks. And they follow where the country is, perhaps five years later, seven years later, ten years later, and the Chief Justice’s concurrence makes that. I’ve got to get to Federalist 69 and the hypothetical. Your buddy, Mike Lee, was actually the most dangerous moment for Judge Kavanaugh yesterday. First of all, he got him to answer a hypothetical about the commission on good things. He actually answered a hypothetical. If your Democratic colleagues listened to talk radio or listened to each other or listened to Mike Lee, they would have jumped on that and said why not ours? Why his hypothetical and not mine? And number two, he cited Federalist 69 wherein it says you cannot subject a president to criminal proceedings until after he has been impeached, tried, and removed. And someone on the Democratic side should have just quoted 69, but none of them read it.
BS: Yeah. Amy does. Klobuchar does. So let’s throw that in.
HH: That was a good exchange. Yeah, that was a good exchange.
BS: But you’re absolutely right. I think Federalist, the Federalist Papers are in his bloodstream. Mike had asked him, Senator Lee had asked him at the very beginning name your favorite, and he said this isn’t quite as hard as picking between your two daughters who your favorite is, and it was wonderful. I prefer these kind of events on radio than on TV. I think you can actually pay more attention if you ignore the theatrics of people’s hands, but if you saw it, if people saw it on TV, it was amazing, because Kavanaugh looked literally pained to have to pick a favorite of the Federalist Papers.
HH: Yeah, we were up to eight by the time he was…
BS: And he cited, exactly, seven or eight. But Mike’s, Mike’s hypothetical was really, really important. It related to what I was trying to do when I followed up later.
BS: And I was curious as to whether or not you’d, if you think that he said the same thing there, because I made up my president of the purple party in ten years that drives him or herself…
HH: Yes, the unitary executive stuff. Yes, you did the same thing. But…
BS: And he was willing to answer it, but he kept going to, was it Clinton V. Jones?
BS: I’m trying to remember which of the Clinton girlfriends it was, but…
HH: It’s Clinton V. Jones, yeah.
BS: They, that hypothetical seemed to say, I think, and it surprised me a little bit that Kavanaugh said that his view is that the civil proceedings can happen while a president’s in office. The criminal proceedings have to wait until after impeachment or after the end of their term. Is that how you heard it, too?
HH: Yes, that’s how I heard it, and the answer, and the reason why is because a criminal proceeding weighs much heavily, much more heavily on a mind. It requires much more preparation time, which is actually true in the real world. Let me end, and he also suggested that Congress, the Article I, can go under Clinton V. Jones, and enact laws that govern civil procedure that when the president can wait, etc. What do you expect of today, Ben Sasse? We’re wrapping up the questioning of the Judge today, correct?
BS: We are. Yeah, I think we all get 20 minute rounds. So he was there until, I think we left at 10:30 last night. He should be out a couple of hours earlier today. And then tomorrow is outside witnesses. I think that a number of Democrats, you saw it from Senator Harris of California, you saw it from Senator Leahy of Vermont, have tried to lead him down some have you now or ever in the past, you know, fraternized in secret with communists. They asked a bunch of these questions in the general as if they’ve got some smoking gun. And I think it’s pretty obvious that they don’t. So Pat Leahy’s was terrible where he tried to say you know, what have you said on issue X, Y, or Z, and did you know this guy, a Republican staffer, in 2001-2003 who did a bunch of illegal stuff, hacking into computers of Democrats on Capitol Hill, and did you know this guy and did you know you were dealing with stolen documents? And he kept implying that he had some email that showed Kavanaugh had been a part of some grand conspiracy. And when it turned out that Kavanaugh wouldn’t take the bait and just kept saying you know, I didn’t do anything improper, but I don’t know what you’re talking about, so show me the email you got, then when Leahy got to a place where he was flustered, he basically turned on Grassley and said well, there are a whole bunch of documents which we have in secret but we’re not allowed to talk about here in public, which is just such obvious B.S. And Grassley did a wonderful job of noting that all the emails that are marked committee confidential, which means that the Bush Presidential Library turned them over saying we don’t think these things need to be in public, because they’re President Bush’s papers, and they’re maybe of national security import, but if senators want to go read them, or if senators want to let their staffs go and read them, they can and then you can tell us, Bush Library, that you want us to release the records, and we’ll consider it, and we probably will. But why don’t you first just go read them. And Grassley revealed that Amy Klobuchar is the only person, Democrat on the committee, whose ever actually gone to read any of this stuff. And Leahy implied that’s where the smoking gun is.
HH: Isn’t that amazing?
BS: So I think that’s so dangerous for public trust, and I think you’ll probably see a little more nonsense like that. But I think they’re going to fizzle on the left, because they don’t have anything. They’ve never laid a glove on him, and he’s been, you know, an impressive witness both temperamentally and substantively. And so I don’t think there’ll be much there. I think there’ll be a bunch of nerds on my side, myself included, who want to dig into some issues some more.
BS: I think that that’ll peter out.
HH: Superprecedent – precedent on precedent, Citizens United concurrence by the Chief Justice. Ben Sasse, we’ll talk to you tomorrow, Senator. Thanks. Everyone’s been enjoying these segments. We appreciate you being the John Madden color commentator on the Judiciary Committee.
End of interview.