April 26, 2017
"A huge part of this hearing was about trying to demonize the Federalist Society, an organization that if you really have a problem with any of those three principles, your oath of office is not an oath that you took without mental reservation."
Today, at a Judiciary Committee hearing on the nomination of Judge Amul Thapar — currently a district court judge for the Eastern District of Kentucky — to be a circuit judge on the 6th Circuit of Court of Appeals, U.S. Senator Ben Sasse responded forcefully to attempts to demonize the Federalist Society for its belief in the Constitution’s separation of powers.
Partial transcript below:
SASSE: I would love to just ask you some questions that really should be stunningly basic but our institution is not serious enough in in the Senate right now. Can you tell me, is it a radical idea to say that the state exists to preserve freedom?
SASSE: Is it a radical idea that the separation of governmental powers is central to our Constitution?
THAPAR: No, it was the wisdom of our Founders.
SASSE: And is it a radical idea to say that “emphatically the province and the duty of the judiciary to say what the law is, not what it should be?”
THAPAR: No, I hope that's exactly our duty because that's what I try to do.
SASSE: I serve in an office where the people can fire me. You are being considered for an office for the people wouldn't be able to fire you. So if you thought that you were secretly a philosopher king who should be wiser than all of the 320 million Americans and decide the answer, would that fit with the American Founders’ view of government?
THAPAR: Absolutely not.
SASSE: The reason you would have lifetime tenure in your next calling and as you do as a judge now is precisely because you're not accountable to the people in the same way that we on this dais are to be accountable to the people. I'd like to read to you in combination the three sentences that I was just asking you about because bizarrely about a third of this hearing has been preoccupied with the idea that it is somehow radical to believe in the American Constitution.
The Federalist Society's founding mission statement — I was at another meeting but I overheard some of the questioning on TV so I ran back; again I apologize for standing between you and lunch — but the Federalist Society is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that is emphatically the province and the duty of the judiciary say what the law is, not what it should be. The Federalist Society is a debating society of law students and lawyers. It's about the Constitution. We in this body have taken an oath to the Constitution.
If there is any senator of the 100 in this body that disagrees with any of the three, please resign today. This was nonsense. A huge part of this hearing was about trying to demonize the Federalist Society, an organization that if you really have a problem with any of those three principles, your oath of office is not an oath that you took without mental reservation.
So I think that the questioning that you been subjected to today was about 50/60/75% in good faith and about 25% trying to demonize an organization that stands for something that is aligned with the oath of office that the hundred of us have taken. Thank you for your answers today - appreciate the time you've submitted to the committee.