How An Impeachment Of Brett Kavanaugh Would Work

The conversation about impeaching Brett Kavanaugh started shortly after his appointment, and in the wake of new reports about sexual assault accusations, it’s flared up again.

At least six 2020 presidential candidates have specifically called for Kavanaugh’s impeachment or impeachment investigations since the New York Times story broke, bringing to light previously unreported allegations of sexual assault against the Supreme Court justice. Those candidates included Julian Castro, Kamala Harris, Elizabeth Warren, Beto O’Rourke, Cory Booker and Tom Steyer. Bernie Sanders and Amy Klobuchar have called for more investigations.

Yes, Impeachment Applies To Judges

Per the Constitution, “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

According to Elizabeth Bazan, a legislative attorney with the Congressional Research Service, that section has been interpreted to mean members of the judiciary constitute “civil officers.”

Bazan wrote a report in 2010 outlining the impeachment process. In it, she said impeachment “has provided a means of exploring allegations of misconduct involving, with the one notable exception of Senator Blount, civil officers from both the judicial and executive branches.”

In fact, most impeachment trials have concerned either the judiciary or the executive, and all of the trials that have led to convictions involved federal judges.

However, it’s still rare. According to a piece by the Brennan Center, the House of Representatives has only impeached 15 judges, eight of which were convicted in the Senate.

How It Works

Federal judges are impeached and tried, and possibly convicted the same way as presidents.

The process starts with the House of Representatives, and this one would start with an inquiry in the House Judiciary Committee. The House has the power to bring charges by a simple majority vote. Then the Senate holds a trial based on those charges, and two-thirds, 67 senators, have to vote for removal.

Removal from office is the extent of an impeachment case, according to the Constitution.

Then, the Constitution states: “The party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to the law.”

How Likely Is Impeachment?

Democrats only hold 45 seats in the Senate, with two independents caucusing with them, making the 67-vote threshold unlikely.

Only one Supreme Court justice has been impeached — Justice Samuel Chase in 1805 — and he was acquitted in the Senate.

Because federal judges have life-long tenures, it’s commonly thought that impeachment, or their resignation, is the only way for them to leave the bench.

“The impeachment power has historically been limited to cases of serious ethical or criminal misconduct,” said Douglas Keith, in an article for the Brennan Center. “Of the 15 federal judicial impeachments in history, the most common charges were making false statements, favoritism toward litigants or special appointees, intoxication on the bench and abuse of the contempt power.”

In recent history, U.S. District Court Judge Samuel B. Kent was impeached in 2009 with charges of sexual assault, obstructing justice and making false statements. He resigned before his case was taken up by the Senate.

In 2010, Gabriel Thomas Porteous, Jr., another U.S. District Court Judge, was convicted by the Senate for bribery and making false statements.

By design, impeachment from any office is a difficult undertaking. Kavanaugh also has strong support in the Senate, making support for a removal unlikely.

“Because the impeachment power lies primarily in the hands of politicians, it is at times threatened for partisan reasons, but the impeachment and removal of judges is in fact rare and usually limited to grave ethical or criminal misconduct such as perjury, fraud, or conflicts of interest,” Keith wrote.

However, what an impeachment proceeding could do is allow for more investigative actions to be taken, just as in the case of the Donald Trump impeachment push. Democrats have been very critical of the lack of a proper FBI investigation into Kavanaugh’s accusers’ claims during his confirmation process. The House Judiciary Committee could gather more information about Kavanaugh’s past behavior and any potential lies he told during his confirmation to cover them up.

“We’ve been calling on House Democrats to take action since April to look into the sham Kavanaugh confirmation process,” Demand Justice chief counsel Christopher Kang said on MSNBC today. “We think they need to get to the bottom of the hundreds of thousands of Kavanaugh White House documents that were hidden, to get to the bottom of the hundreds of thousands of dollars of Kavanaugh’s debt that mysteriously disappeared. And most importantly, to get to the bottom of these sexual assault allegations and into this FBI investigation that clearly was a sham from the start,”

 

By Nikoel Hytrek
Posted 9/16/19

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