With the Senate Judiciary preparing to recommend that Judge Brett Kavanaugh be confirmed to fill the SCOTUS seat recently vacated by Justice Anthony Kennedy, it’s looking increasingly likely that Kavanaugh will successfully make it through what has undoubtedly been the most bruising Supreme Court confirmation process since Justice Clarence Thomas in the early 1990s. And now that Democrats have played their final card (to no avail), Axios is reporting that Democratic operatives are already scheming to impeach Kavanaugh as quickly as they can.
Indeed, as the Nov. 6 midterm vote draws closer, Republicans expect the impeachment of both Trump and Kavanaugh to be “an animating issue.”
Here’s more from Axios, which cited several unnamed Democratic and Republican operatives in its report:
A well-known Democratic strategist says the “only question is who calls for it first.”
And top Republicans expect President Trump to begin making an even bigger issue of his own possible impeachment as a way of whipping up supporters in the final month of this fall’s midterm campaigns.
A veteran Republican close to Senate leaders and the White House: “Impeachment of Trump and Kav will be an animating issue on both sides.”
At the very least, expect Democrats to “question the legitimacy” of his seat.
Be smart: If Kavanaugh is confirmed, Democrats could be expected to question the legitimacy of his swing Supreme Court vote. Congress degraded itself yesterday. And the Trump White House of course has serious credibility issues.
Meanwhile, former Hillary Clinton Press Secretary Brian Fallon offered a more complete look at how Democrats could push for impeachment in a Thursday night tweet, where he declared that, should Kavanaugh be confirmed (an outcome that is looking increasingly likely) he would “not serve for life.”
If Senate GOP ignores Dr. Blasey Ford and tries to muscle an attempted rapist onto the Supreme Court:
1. They will pay dearly this November.
2. Senators up in 2020 (Collins, Gardner et al) will feel intense heat for next two years.
3. Kavanaugh will not serve for life.
— Brian Fallon (@brianefallon) September 27, 2018
During an interview with France 24, Yale Law Professor Bruce Ackerman illustrates a scenario where Kavanaugh could be impeached – not because of the sexual assault controversy, but because he’s suspected of lying about stolen memo used to push through Bush-era nominees. It’s also possible that he lied about his role in devising the Bush administration torture memos/
“Let us suppose we learn that there are documents which indicate quite unequivocally that Mr. Kavanaugh was involved with the construction of the torture memos. What will happen is he will be impeached for misrepresenting his position in his testimony both this time and when he was first confirm [to his appeals court judgeship for the Washington DC circuit].”
Earlier this month, former deputy attorney general Lisa Graves argued that Kavanaugh received memos stolen from Democrats on the Senate Judiciary committee during the Bush era and used them to help push through the administration’s nominees. Then he allegedly lied about it under oath.
Here’s Graves (per Slate):
Newly released emails show that while he was working to move through President George W. Bush’s judicial nominees in the early 2000s, Kavanaugh received confidential memos, letters, and talking points of Democratic staffers stolen by GOP Senate aide Manuel Miranda. That includes research and talking points Miranda stole from the Senate server after I had written them for the Senate Judiciary Committee as the chief counsel for nominations for the minority.
Receiving those memos and letters alone is not an impeachable offense.
No, Kavanaugh should be removed because he was repeatedly asked under oath as part of his 2004 and 2006 confirmation hearings for his position on the U.S. Court of Appeals for the D.C. Circuit about whether he had received such information from Miranda, and each time he falsely denied it.
But assuming Democrats amass enough votes in the House and the Senate to push through an impeachment vote, how exactly would this play out?
Unsurprisingly, Vox has published a handy explainer:
Impeachment and removal of a federal judge, including a Supreme Court justice, requires meeting a high political bar. Just as with presidents, a majority of the House must approve an indictment to impeach, and a two-thirds supermajority of the US Senate must convict for the judge or justice to lose their office.
There is considerable precedent for impeaching and removing lower-level federal judges. For Supreme Court justices, the number of precedents is much smaller: There is one case in which a Supreme Court justice was impeached but not removed, and no other examples.
As a 2010 report by Elizabeth Bazan for the Congressional Research Service explains, Article II, Section 4 of the Constitution provides for the removal of “the President, Vice President, and all civil Officers of the United States … on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The term “civil officers” is not defined in the Constitution, and Bazan notes that with one exception (US Sen. William Blount, one of the first two elected from Tennessee in 1796) every person impeached so far has been an executive or judicial branch official. The Senate ultimately decided that Blount was not a “civil officer” and acquitted him on that basis.
By contrast, Bazan writes, “the precedents show that federal judges have been considered to fall within the sweep of the ‘Civil Officer’ language.” The House has, in the course of federal history, impeached 13 judges, and the Senate has convicted and removed eight. Of those convicted, seven were district judges. The other was Robert Archbald, who served on the United States Court of Appeals for the Third Circuit and the now-defunct United States Commerce Court until his 1913 removal.
Thomas Porteous, a federal judge who was impeached in 2009, was facing criminal charges at the time of his impeachment, as were the other four judges who comprise the five most recent impeachment cases in the federal judiciary.
But as Vox also points out, these situations differ markedly from Kavanaugh’s situation (and Thomas’s as well):
If one takes the five impeachment cases in recent decades as a model, Kavanaugh’s conduct (and Thomas’s) does not appear similar. While Kent’s case involved sexual misconduct, he had also already been criminally convicted, whereas Maryland prosecutors show little interest in pursuing charges against Kavanaugh in the Ford case. There is little indication that federal prosecutors believe he committed perjury in his statements about the judicial memos.
More importantly, both Kavanaugh and Thomas have numerous supporters in the Senate and the House. At the time of their impeachment, these other judges didn’t.
In other words, not only would Democrats need the support of their entire caucus to succeed with an impeachment and removal – they would likely also need the support of most of their Republican colleagues. And unless evidence of some unspeakable act comes to light, it’s unlikely that this will happen.