Senator Ben Sasse of Nebraska, a member of the Senate Judiciary Committee, joined me this morning to discuss the hearings on Judge Kavanaugh’s nomination by President Trump to join the United States Supreme Court:
HH: This is Kavanaugh week in the United States Senate, and joining me each morning will be United States Senator Ben Sasse of the great state of Nebraska. He is a member of the United States Committee on the Judiciary. Senator Sasse was elected in 2014, a graduate of my alma mater. But then, he went and didn’t go to law school. It surprised everyone. He went and got his PhD in history from Yale. I’m not sure what sort of history they teach at Yale. We’ll find out shortly. But Senator Sasse is unique among senators for that qualification. Welcome, Senator Sasse, good to have you this week.
BS: Good to be here, Hugh, and did you get your Kavanaugh week tattoo as you promised?
HH: You bet. I’m ready. It’s all, it’s on the back calf where my iron man should be.
BS: 50% of the people in the Maine probably had that when you were at the wedding.
HH: (laughing) Let me ask you, Senator Sasse, before we go to what’s going to happen this week, Doug Ducey is a good friend of mine. He’s a great governor of Arizona. He has to do the impossible. He’s got to replace John McCain. He probably will do that today or tomorrow. What qualities do you see from having been in the body for four years that the body most needs that Doug Ducey’s appointee might provide?
BS: Boy, on my run this morning, I thought through stuff you might ask, and nowhere was that on the list.
BS: Let me first just agree with you. Doug is a heck of a guy. I think Arizonans are really blessed to have him as a governor. I think he’s one of the most thoughtful of the 50 governors in the country right now.
BS: And so I’m, I’ve reached, I’m a friend of Doug’s as well, and so I’ve reached out to him and just said hey, I have no dog in this fight. I’m happy to be a sounding board for you if you want somebody who’s not in the Arizona process with you, and just to hear the starting topline of how he’s thinking about it. But I don’t want to talk about that in public. But I’ve just, I’m impressed by the guy, but I’ll just say this about the Senate as an institution. We’re really, really unhealthy. We’re 230 years into our Constitutional system, and I think the Congress is at its second-weakest point in U.S. history. In the early to mid-1930s, I think it was arguably weaker than now. But right now, almost, almost everybody is too strong, but a hefty majority of the people here, their number one long-term thought is their own incumbency. And the Senate as an institution was built to be the place where long-term vision casting happened in America. That’s why you have six-year terms, because you’re supposed to get out of the cycle of day to day, minute to minute, and the founders didn’t envision the 24/7 news cycle. But the point is to get beyond the next election cycle and say hey, what are the challenges and the long-term disruption of work and the changing nature of war as cyber becomes a core domain? And right now, the Senate just doesn’t have a lot of those people. So I guess the biggest thing I hope is that Doug picks somebody, appoints somebody who’s got the courage to not really care if in the short term something’s unpopular. We need a lot more long-term thought for the disruptions we’re going through.
HH: You’re also a member of the Committee on Armed Services. And my only piece of advice offered up on air and off is it’s someone who understands that we are in a rapidly-changing strategic environment. And tactically, the developments are rapid, as you just pointed out in cyber. But strategically, the world has just changed overnight. And even though we’re in an era of a mercurial president, and you know that as well as anyone, that passes pretty quickly. Senators can be there for 20 or 30 years like Supreme Court justices, and people have to want to be able to learn.
HH: Actually, I think it’s one of the great calling cards for a senator is someone who wants to be able to adapt as the years go by.
BS: Yeah, well said. I mean, just to underscore one thing you said about the changing nature of war, we’re 32 years into the era of cyber war, and we still really don’t have a strategy. It’s pretty breathtaking. There was nothing like this in the nuclear era.
BS: We had to use them in ’45, and by ’48, there was basically mutually assured destruction. And we realized we had a crisis on our hands, Eisenhower exiting his roles as Supreme Allied Commander of NATO and whatnot, and then being elected president in ’52. In that 1948-1952 period, the whole nation said holy crap, we need an offensive and defensive theory of nukes and how we’re going to build human capital, how we’re going to develop in an ongoing way. We’re three-plus decades into the cyber era, and we have nothing analogous.
HH: Yeah, and that is…
BS: We need more of what you’re saying.
HH: It’s very, very scary, so hopefully that comes through. Let’s turn to the Kavanaugh hearings. You’re a member of Judiciary, and I have been saying I will watch you, and I will watch Chris Coons very closely. Among the Democrats, those who are running for president are going to showboat, but Senator Coons is very thoughtful as you are, and I think we’re going to get some interesting questions. What do you expect from Judge Kavanaugh this week?
BS: You know, I think a lot of people are focused on the Ginsberg movie right now. And it’s led to a whole bunch of people to talk about the history of other standards of kinds of questions people used to duck. I think Kavanaugh is such an intellectually thoughtful guy, he and Gorsuch co-authoring a book on stare decisis, and you’re the legal brain, I’m not. But I think there are a whole bunch of things that Kavanaugh the Harvard Law professor, Kavanaugh the Yale Law professor, Kavanaugh the Federalist Society regular, you know, rubber chicken dinner circuit speaker, would love to talk about, and I’m sure he’s being coached up by the dozens of people prepping him for this. Try to say nothing. Try to cite all the other times in the past when people have said nothing. So I think you’re going to see a dance where he’s going to have a desire to help do basic civics for the American people in this moment. And yet, he can’t comment on anything that could potentially come before the Court as an actual matter on which he’d have to rule. So I think you’re going to see him constantly try to draw a line between theoretical ways to think about problems and how our Constitutional system is structured, and particular policy hot button issues that he shouldn’t talk about.
HH: Now I’m curious, Senator Sasse, have you got a list of questions ready? Because how much time do you actually get to ask questions as opposed to make statements?
BS: So if you’re there all day, if you show up every day by the time the hearing starts, and you’re on the list when you’re gaveled in, you can probably get through two rounds a day. And I think our first rounds are going to be 10 minutes per senator. And then later, they’ll probably drop to 8. But if you stay all day, you can probably do 18 minutes a day. Not, today doesn’t count, because today, we all make opening statements, and then he makes an opening statement. He’s introduced by Condi Rice, by Rob Portman, by a few other people. So our actual question sessions start tomorrow. But I could imagine 18 X 3. So if I can do math, that’s 54 minutes.
HH: Yeah, well, okay. That’s not a lot of time. You’ll have to be very judicious. Let me ask you for your reaction, because he’s from the District of Columbia, Judge Kavanaugh could actually have asked any senator to introduce him. He took the senator from Ohio, which shows great innate good sense and probably a prophecy about the Big 10 championship, poor Nebraska. But what do you think it says that he asked Rob Portman to come forward and Condi Rice? What’s that communicate, given that he’s Donald Trump, this controversial, mercurial president’s nominee? But he’s got Condi Rice, a Bushie, and Rob Portman, who goes back forever and is maybe the nicest gentleman in the Senate? Sorry, Senator Sasse. What do you think it says?
BS: Yeah, well, hold up on that. I mean, let’s argue about that. I’ve seen Portman do some really jerky stuff on a kayak.
BS: So first of all, I wouldn’t read, and I know you’re not implying this, Hugh, but I wouldn’t read anything into it as a perceived Bush 43 administration snub to Team Trump. I think it’s probably more just formative experience years, you know, in his first work jobs in his late 20s and early 30s, and I guess mid-30s. He, you know, the Bush team had a real priority that they put on being team players where it’s not about your ego. It’s about whatever the larger cause is you’re trying to serve. And Rob Portman, having been OMB budget director during the time that Brett Kavanaugh was staff secretary, and I’m sure your listeners know, but I think so much of America is hearing this, these nonsense fights about documents that supposedly haven’t been produced, and Kavanaugh’s documents have been produced. What hasn’t been produced is everything George W. Bush ever journaled in the course of his life. And so Brett was staff secretary there, and Rob Portman as budget director is, you know, a job that regularly in most administrations competes with the vice president to be the most powerful position in the executive branch. And so they probably just worked together so closely. And anybody who’s ever been around Condi Rice just falls in love with her, her character and her breadth of interests. And so I’m sure both of them were just formative experiences in his development.
HH: All right, now if I were king of the forest, not queen, not duke, not earl, and I was in your chair, I would, and the Washington Post asked me this. They might run it today. I don’t know if they decided, what questions would you ask, I would ask Brett Kavanaugh the three worst decisions in the history of the Supreme Court are Dred Scott, Plessy V. Ferguson and Korematsu. I teach it every year. These are the, this is the triple crown of stupidity. Dred Scott brought on the Civil War, Plessy legalized segregation, and Korematsu stripped the rights of American citizens on the basis of their ethnicity and suspicion in time of war. And they have in common a lot. The fourth is Roe V. Wade. And that’s a different issue. That will be talked about a lot. Do you think anyone will raise these and ask why it is a Court goes so badly off the rail at big moments and how you prevent that from happening?
BS: Wow, I mean, I think I might now.
BS: That’s a pretty darn good question, and phrasing triple crown of stupidity, I’m going to steal and trademark as well. That’s interesting, because I think, you know, I’m the second or third-most conservative person in this body by voting record, but I’m not very partisan. I think our tribalism is a mess and going to lead us down a dead end here. And so my gut is not many people would have thought to ask it that way, because the Dems are mostly going to view it as if their job is try to do gotcha questions. And that would, in a certain way, help somebody frame up, if you’re Kavanaugh, the Democrats don’t want to give him a big, fat pitch across the center of the plate, because he’ll be able to explain his views on stare decisis in ways that I think will be pretty compelling to the American people who often haven’t thought about the difference between why certain opinions should be regarded, should be given lots of deference, and other ones we should ask a question about how did we do something this stupid?
BS: …as Plessy. So I think Republicans are not likely to have thought to ask that question, because it does put a finer point on some hard things that in the same vein, people might not think that he wouldn’t want to answer about stare decisis. So I think it’s a really good question, and I’m not done with all my work for tomorrow, yet. I’ve got an opening statement this morning, and as you well know, I spent the entire night, Saturday night to Sunday morning, in a football stadium to see exactly one play in football. So I haven’t finished all my questions, but I may harvest yours.
HH: All right, well please do. I think the Democrats would be well advised not to go after gotcha, but to try to gain from this testimony support for doctrines they like. They love Chevron deference. They love the agencies. They could get Brett Kavanaugh to say good things about Chevron deference that he’ll never write in an opinion, right? But do they ever think strategically that way, Senator Sasse?
BS: No. I mean, this place, there’s not a lot of strategy, because there’s not an overarching sense of the American we right now, right? Like so many of these people, and I think it’s true of both parties, so many of these people have reduced their life to playing a role, to playing a character where they assume the grand debate is between Republicans and Democrats. And so it’s about scoring short-term points to get on TV tomorrow morning, even if the audiences of our broadcast cable are really, really tiny.
HH: They’re 3 million people. It’s 1%. It’s crazy.
BS: Yeah, exactly.
HH: It’s just crazy.
BS: So no, I don’t think people are doing the strategic thing that you’re saying they should do, and I think that ties to the larger civics we should all be doing, which is you look at the data about what American high school kids know about our system of government. And it’s a failing, it’s the kind of grade you’d give to a Republican collapse.
BS: And so we should be doing the kind of stuff you’re talking about.
HH: Last question for you today, and we’ll talk again each day this week.
HH: What’s your advice to President Trump about Twitter and the hearings?
BS: I honestly hadn’t thought of that, yet. I mean, Twitter, I don’t regard it as a very serious place most of the time. I work pretty hard in my Twitter not to think of it as related to work, but more related to a couple dozen buddies from high school and college that I keep up with by public facing email. So I don’t tend to think of Twitter very seriously. I think after yesterday, it’s probably pretty hard to minimize Twitter and the potential of the President doing himself real damage. What he said yesterday was an attack on the rule of law. And it’s a big, big problem. And so I, I mean, the President and I talk about a number of things. We wrestle on trade, for instance. He’s never asked my advice on Twitter, so I’ve never given it. But if I were to give it, I would recommend, you know, you have a smaller number of strategic priorities that are longer term than, you know, the urge for the next tweet.
HH: And silence on the Kavanaugh hearings?
BS: That would be great, yeah.
HH: I thought you would say that. I will be back with you tomorrow. Good luck today in listening to all these opening hearings. I’ll be listening to yours very carefully. We’ll find out how it goes and we’ll talk with Senator Sasse again tomorrow.
End of interview.