What Would Take to Impeach Brett Kavanaugh If He's Confirmed to the Supreme Court?

Democrats would have a lot of heavy lifting to do in order to impeach Kavanaugh if he is confirmed.

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In so many respects, the behavior of Republicans in response to sexual abuse allegations against Judge Brett M. Kavanaugh—President Donald Trump’s second nominee for the U.S. Supreme Court—has been appalling. Senate Republicans have spent more time attacking Democrats than considering the allegations of Christine Blasey Ford (the Palo Alto University psychology professor alleges that Kavanaugh tried to rape her back in 1982), Deborah Ramirez (who alleges that Kavanaugh placed his penis in her face when she was intoxicated at an early 1980s dorm party at Yale University) and Julie Swetnick (who alleges that Kavanaugh was present when she was drugged and gangraped in 1982). And when Republicans in the Senate Judiciary Committee begrudgingly agreed to a September 27 hearing on Ford’s allegations, most of them were still resisting an FBI investigation—it wasn’t until Arizona Sen. Jeff Flake demanded one the following day that they changed their minds.

An overwrought Kavanaugh, during his September 27 testimony, angrily accused Democrats of pursuing Ford’s sexual abuse allegations as an act of political revenge “on behalf of the Clintons.” And Sen. Lindsey Graham, during an over-the-top rant of his own at the hearing, tried to bully, strong-arm and coerce fellow Republicans into voting for Kavanaugh when he declared, “To my Republican colleagues: if you vote ‘no,’ you’re legitimizing the most despicable thing I’ve seen in my time in politics.” 

Between Republicans trying to ram Kavanaugh’s nomination through the Senate despite sexual abuse allegations from at least three different women to the overt and bitter partisanship that Kavanaugh displayed on September 27, some of Kavanaugh’s critics are wondering: if Kavanaugh is confirmed to the Supreme Court, could he be impeached at some point? The answer, technically, is “yes, but it’s most unlikely.” Articles of impeachment can be used to remove a justice from the U.S. Supreme Court, but it isn’t an easy process by any means—and Democrats would have a lot of heavy lifting to do in order to impeach Kavanaugh if he is confirmed.

According to the U.S. Constitution, Supreme Court justices and federal judges can be impeached just as presidents can be impeached. And the process for removing a justice from the High Court involves impeachment in the House of Representatives, followed by a conviction in a Senate trial. Impeachment in the House of Representatives doesn’t actually remove a president, federal judge or Supreme Court justice; rather, it is a recommendation of removal—and the Senate may or may not agree with that recommendation. 

Only three presidents in U.S. history have faced articles of impeachment in the House of Representatives: Richard Nixon, Bill Clinton and Andrew Johnson—none of whom were convicted in the Senate. Clinton and Johnson were acquitted in the Senate, while Nixon resigned in August 1974 before a Senate trial come even could about. Possibly, Nixon would have been convicted in a Senate trial had it gone that far, but Nixon choose to quit rather than waiting to be fired. And impeachment is even more of a rarity when it comes to Supreme Court justices.

In fact, the only U.S. Supreme Court justice in U.S. history who was impeached was Samuel Chase, appointed to the High Court by President George Washington—the first president of the United States—in 1796. Chase was impeached in the House in 1804 on the grounds that he allowed his partisan views to influence his decisions, but Chase was acquitted in the Senate in 1805 and remained on the Court until his death in 1811.

Then, in 1969, Justice Abe Fortas (appointed by President Lyndon B. Johnson in 1965) resigned rather than face impeachment. Fortas’ critics called for impeachment after learning that he was a paid consultant for a foundation operated by the family of a Wall Street tycoon under investigation for securities fraud.

If Kavanaugh were to become the first Supreme Court justice to be impeached since Samuel Chase in 1804, a lot of pieces would have to be in place.

First, it would take a strong Democratic majority in the House of Representatives. It remains to be seen whether or not Democrats will regain the House in the 2018 midterms, although many pundits have been predicting that they will regain the House but not the Senate. 

Second, even with a Democratic majority, there wouldn’t necessarily be enough votes in the House to successfully use articles of impeachment against Kavanaugh. Many House Democrats elected in Republican-dominated states might not have an appetite for impeachment.

Third, if Kavanaugh were impeached in the House, he could be acquitted in a Senate trial—especially if the Senate maintains a Republican majority in the midterms. But even if Democrats do manage to obtain a Senate majority on November 6, it is hard to imagine a lot of red-state Senate Democrats wanting to convict Kavanaugh. West Virginia’s Joe Manchin and North Dakota’s Heidi Heitkamp might even vote to confirm Kavanaugh just as they voted for the confirmation of Justice Neil Gorsuch, Trump’s first Supreme Court nominee. 

Again, impeachment in the House is merely a recommendation of removal from office. And the Senate, in an impeachment trial, can either agree or disagree with that recommendation. The Senate disagreed with the House’s recommendation after Samuel Chase’s impeachment in 1804—and similarly, Kavanaugh could be impeached in the House but acquitted in the Senate, which has the option of rejecting a House recommendation of impeachment. 

In an impeachment scenario, Democrats might use the naked partisanship that Kavanaugh displayed at the Senate Judiciary Committee hearing on September 27 against him. Supreme Court justices, in theory, can be extremely conservative in their judicial philosophy or extremely liberal in their judicial philosophy, but overtly promoting the interests of one particular political party over another is problematic—and Kavanaugh’s anti-Democrat, pro-GOP bias was painfully evident on September 27. But even so, removing Kavanaugh from the High Court if he is confirmed would be an uphill battle every step of the way.

If Kavanaugh is confirmed—and most likely, he will be even with a limited one-week FBI investigation of Ford’s sexual abuse allegations—that doesn’t mean that Democrats won’t be keeping a very close eye on him. But unless incontrovertible, smoking-gun proof of something really damning emerges, it is hard to imagine Kavanaugh being impeached. And if Kavanaugh, now 53, lives as long as Justice Ruth Bader Ginsburg, it’s entirely possible that he will still be sitting on the U.S. Supreme Court and handing down far-right decisions in 2050. 

 

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