Sen. Ben Sasse On Trump's Supreme Court Pick

Steve Inskeep speaks with Republican Sen. Ben Sasse of Nebraska about where he disagrees with President Trump. But that doesn't include Trump's pick for the Supreme Court, Neil Gorsuch.

STEVE INSKEEP, HOST:

Let's hear a supporter of Supreme Court nominee Neil Gorsuch. Republican Senator Ben Sasse of Nebraska is one of the Senate's more conservative members. He was a prominent critic of President Trump throughout the presidential campaign, but feels very differently about the judge the president now wishes to promote. And Senator Sasse is on the line from Capitol Hill. Good morning, sir.

BEN SASSE: Good morning, Steve. Thanks for the invite.

INSKEEP: I'm glad you could come by, at least on the phone. What attracts you to Judge Gorsuch?

SASSE: I think he's the kind of judge the founders envisioned. You know, when you look at his opinions, as I've started doing over the last few weeks when he was one of the finalists, it's really hard to figure out his policy and political preferences on any issue. He's a judge's judge who believes in three separate branches, and Congress writes laws, and the president administers them, and a judge's job is to protect our rights.

INSKEEP: People have described him as an originalist. Would you explain what that is?

SASSE: I think, you know, there are so many different terms thrown around in the legal arcana, and I'm one of the only members of the Judiciary Committee that actually isn't an attorney. So I work hard to try to put this in the common sense terms that Nebraskans teach in civics to their kids think of it as. But an originalist means they're somebody who's trying to figure out what the Constitution means and protect our First Amendment rights and all of our rights and not trying to legislate from the bench. So I think the shortest way to think about an originalist is it's the opposite of a judge who thinks of themself as a super-legislator.

INSKEEP: And we're getting into the whole debate over conservative versus liberal views of the law and what is judicial activism and who's being an activist here, I suppose.

SASSE: Fair enough. That's probably true, but I want to work hard to take away the terms conservative and liberal if we can because most people when they hear them think about policy preferences and policy outcomes. And the Supreme Court, in the Constitution, they don't have any place for purple or for blue or for red jerseys for justices. There's no Democratic and Republican seats or gyms or coffee shops at the Supreme Court. Every American should be able to celebrate the fact that we aspire to nine justices who are looking to defend our rights and to defend the Constitution, not to advance policy preferences.

INSKEEP: Well, let me ask about that, Senator, because you just pointed out you don't want people to think of Republican or Democratic justices, you don't want this to be a partisan matter. Why did Republicans in the Senate choose to make this a partisan matter by refusing to consider Merrick Garland, President Obama's nominee, which is why there's a nomination now?

SASSE: Well, I mean, I think we could have infinite theoretical and historical debates about the Biden rule and the Schumer rule and the so-called first term rule and the lame duck of a presidency rule.

INSKEEP: Sure. That's all been discussed here, yeah.

SASSE: But - yeah, but the situation we face now is there's a vacancy on the court. We have a president who was just elected in a transparent process where he said these are the kinds of people I'd put on the court. Millions of Americans voted based on that logic, and he picked one of those 21 people. And when you go and actually read Judge Gorsuch's opinions, he's a judge. He's not trying to legislate. He's not trying to get to policy outcomes.

INSKEEP: Although - help make a case to Democrats who are skeptical, if you can. You mentioned this has been an intricate debate, but Mitch McConnell also was pretty clear about the bottom line. He didn't want to change the ideological makeup of the court, he thought it was unfair that Justice Scalia should be replaced by a very different kind of judge. That's one of the things that he - one of the things that he said. And so he held up the process and now is arguing that the process should go forward for a Republican. Can you make a case to Democrats who are very leery of that, that they should let the process go forward even though Republicans did not?

SASSE: Well, leader McConnell and I don't necessarily see eye-to-eye on every issue under the sun, but I think the way you just summarized it is probably not what McConnell would say, the sort of conflation of process and outcome and which, you know, which party a judge is - or a president is when they get to nominate. But I think the thing I would point my colleagues to is the fact that last night Judge Gorsuch said something in his statement at the White House which is something I hear that he tells young law students all the time.

If, as a judge, you like all of your policy outcomes - if every time you rule in a case you like the way it was decided, as a private citizen you look at it and say, oh, I like this, this advances my goals, there's probably something wrong with you as a judge. Because your job isn't to get to those policy outcomes, you should lots of times feel as a citizen when you take off your robe, well, that's a bummer. That isn't the outcome I wish would have happened, but that's what the law leads me to.

INSKEEP: (Laughter) I'd love to read a judicial decision that includes the phrase that's a bummer, that would be kind of fun.

SASSE: I work to get that's a bummer in my press statements once in a while...

INSKEEP: That's good.

SASSE: ...So we'll try to get some judge to write it in an opinion.

INSKEEP: We'll watch for that. I want to play some tape of one of your Democratic colleagues, Chris Coons of Delaware, who we're also hearing from in today's program. And we asked him about Judge Gorsuch, and here's one thing that he said.

CHRIS COONS: I'm going to keep an open mind. I'm going to dig into his record. I've already started reading into the background of a number of his cases. He is on the conservative end of the legal spectrum, and he supports a number of radical departures from settled law that concern me.

INSKEEP: OK, radical departures from settled law. There are indications - Nina Totenberg, our colleague, is reporting this - that based on his record, he has a different view of federal regulations. He may want to strip a lot of federal authority to make regulations which previous conservative justices had approved. I know you don't want this to be about issues, but about the law, but how would America be a different country in a few years if this man's judicial philosophy prevails?

SASSE: Well, I don't know the answer to that. And I don't think we should want to know because I think what you're saying is, what will be the policy implications? And a justice's job is to wait and look at the cases that come before them, for instance when circuits are split. So let's back up to what Chris said for a minute. First of all, I should say I have a ton of respect for Chris Coons. I like the guy a lot. I think he has a ton of integrity.

I think the words radical departure are fairly stunning when he just said that he hasn't really read many of the opinions that he's just started looking at. I mean, it feels a little bit like Senator Schumer yesterday, before we knew who it was going to be, already was preparing talking points to say the guy kicks puppies and, you know, probably heckles piano recitals. And I went out last night - I was on the Hill last night - and I went out to the Supreme Court 'cause I knew there were a bunch of protests happening, and I wanted to talk to the people. I wanted to hear from them. Why are you protesting?

And I don't mean to be dismissive, but when you get to the steps of the court and all the people there - not all of them, but the vast majority who are protesting, this is a terrible nominee - they had signs that said on one side oppose at the top half and on the other side hash tag #stop at the top half, and the bottom half was blank. And then they had magic markers, and they were filling in Gorsuch's name as they began to protest.

INSKEEP: OK.

SASSE: And so I said tell me what's wrong with this guy. And they said, well, his opinions are atrocious. And I said, well, have you read any of them? And one of the guys - he goes - looked at me sort of stone-eyed, well, who are you to ask me that question? I said, well, I'm actually...

INSKEEP: Senator, I love this story, got to stop you there.

SASSE: Fair enough.

INSKEEP: Senator Ben Sasse of Nebraska, thanks very much. We'll continue the conversation.

SASSE: Thanks, Steve.

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