New Calls To Impeach Justice Kavanaugh: How It Would Work And Why It Likely Won't

Sep 16, 2019
Originally published on September 16, 2019 11:54 pm

There are renewed calls for Supreme Court Justice Brett Kavanaugh to be impeached, after an essay in the New York Times, excerpting a book by Times reporters, was published this weekend.

The essay includes a previously unreported allegation of sexual misconduct against Kavanaugh involving a female student while he was at Yale University. NPR has not confirmed the allegation. The reporters include the name of someone who said he witnessed it, but that person has declined to speak publicly about it and has not responded to NPR's attempts to reach him. According to the Times, the female student also declined to be interviewed, and her friends say she doesn't recall the incident.

Kavanaugh is also not speaking. "The Justice declines to comment," a Supreme Court spokeswoman told NPR. He has denied past allegations of sexual misconduct.

Some Democrats running for president, including Kamala Harris, Julián Castro and Elizabeth Warren, are now calling for Kavanaugh's impeachment.

"There has not been an investigation with the level of attention that normally would occur around these kinds of allegations and especially related to the subject at hand, which is the appropriateness of this individual serving on the highest court of our land for a lifetime appointment," Harris said Monday on NPR's Morning Edition.

Calls for impeachment, though, put Democrats in a political pickle — their base believes Kavanaugh lied about these incidents in his testimony before Congress, and they are dissatisfied with what they believe was a cursory investigation by the FBI. Sen. Chris Coons, for example, sent the very allegation reported on in the Times essay to the FBI on Oct. 2 of last year. Nonetheless, Kavanaugh was confirmed 50-48 four days later.

But the Democratic leadership believes impeachment of Kavanaugh — or President Trump, for that matter — can't be done without hard evidence that can sway public opinion (and some Republicans) to its side. Otherwise, Democratic leaders see it as a futile effort expending too much political capital, distracting from their policy agenda and jeopardizing their chances to retain the House and beat Trump in 2020.

So how would impeachment work, and more importantly, how likely is it that he would be impeached (hint: not very)?

Can a Supreme Court justice be impeached?

Yes. The U.S. Constitution lays it out in Article II, Section 4:

"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."

Judges fall under "all civil Officers of the United States."

What does the Constitution say about judges' "behavior"?

There's a reference to judges' behavior in Article III, Section I (emphasis ours):

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

But that does not mean that bad behavior is necessarily grounds for impeachment. Here is how the Legal Information Institute at Cornell Law School explains it:

"Article III, section 1 specifically provides judges with 'good behavior' tenure, but the Constitution nowhere expressly vests the power to remove upon bad behavior."

How would the process work?

It would be the same as removing a president, which Democrats currently are also struggling with how to address, given that the majority of House Democrats now favor beginning the impeachment process against President Trump.

The House would need to bring it up, and charges would need to be filed having to do with "treason, bribery, or other high crimes and misdemeanors." The House would need just a majority for impeachment, but to remove the official, two-thirds of the U.S. Senate would need to vote to do so.

The House is controlled by Democrats, and the Senate is controlled by Republicans.

Has a Supreme Court justice ever been impeached?

Yes, but only one — it was more than 200 years ago, and he wasn't removed from office.

The justice was Samuel Chase. He criticized President Thomas Jefferson's policies before a grand jury in Baltimore, and with Jefferson's party controlling Congress, Jefferson gave the green light to impeach Chase. The House impeached him in 1804, but the Senate, in 1805, did not affirm it and remove him.

That established a high bar for impeaching or removing a justice and established that their decisions should not matter in impeaching or removing them from office.

Then-Chief Justice William Rehnquist wrote a book on judicial impeachment and, as cited by Douglas Keith at the Brennan Center for Justice, noted about Chase's impeachment that it was "enormously important in securing the kind of judicial independence contemplated by" the Constitution.

Have any judges been removed from office?

Yes, eight have been removed from office after convictions in the Senate. Fifteen have been impeached, mostly for "making false statements, favoritism toward litigants or special appointees, intoxication on the bench, and abuse of the contempt power," the Brennan Center notes.

The last to be removed from office was G. Thomas Porteous, a federal judge in New Orleans, in 2010. He was convicted on four articles of impeachment.

The AP wrote at the time:

"[T]he 63-year-old judge had a gambling problem and began accepting cash and other favors from people with business before his court. He also was accused of lying to Congress and filing for bankruptcy under a false name."

A year earlier, a federal judge out of Texas, Samuel Kent, was impeached by the House after admitting "to sexually harassing and abusing two female members of his staff," as NPR reported at the time. He was also convicted of obstruction of justice. Kent, however, resigned before the Senate could vote to remove him from office.

Will House Democrats push forward to impeach Kavanaugh?

It's highly unlikely.

House Judiciary Committee Chairman Jerry Nadler of New York told WNYC on Monday that he has questions for FBI Director Christopher Wray on how the FBI handled the investigation into the Kavanaugh allegations, but he is focused on Trump.

Also, Kavanaugh's removal is a near impossibility in the Republican-controlled Senate. Sen. Lindsey Graham, chair of the Senate Judiciary Committee, tweeted Monday: "I promise you Justice Kavanaugh will not be impeached over these scurrilous accusations."

So going out on that limb has to weigh on Democrats as well. Trump and Senate Majority Leader Mitch McConnell both have leaped to Kavanaugh's defense. Trump tweeted about Kavanaugh several times on Monday, defending the justice he appointed and saying that Democrats "are looking to destroy, and influence his opinions" and that "They should be sued!"

McConnell called the allegations against Kavanaugh "uncorroborated and unsubstantiated."

Not even all Senate Democrats are totally on board.

Sen. Doug Jones of Alabama noted on MSNBC that Kavanaugh could be impeached if he, in fact, lied to Congress. But, he added, "At some point, though, I mean, he was confirmed. That is what our Constitution says."

Sen. Amy Klobuchar of Minnesota, who is also running for president, said on ABC's This Week that it was premature to say Kavanaugh should be impeached, but she criticized the confirmation process that played out as a "sham" and is calling for more documents.

"I don't think you can look at impeachment hearings without getting the documents," she said.

If the impeachment process is unlikely to result in Kavanaugh's removal, why do some Democrats want to go through with it anyway?

Harris acknowledged on NPR that Kavanaugh is unlikely to be removed from office, but she still believes Congress should act.

"I don't think in the United States Senate, that the leader of the Senate would allow that there would be a vote if the House returned articles of impeachment to actually convict," she said, tying in Trump as well, "but that doesn't mean the process shouldn't take hold. And this relates to the topic of impeachment as it relates to another individual."

She added, "If you gauge what the United States Senate has done to the current leadership, it has been coddling and frankly not holding it to account, this administration, on a number of levels. But it doesn't mean that those of us who have a responsibility to act shouldn't act."

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Some Democrats are calling for Supreme Court Justice Brett Kavanaugh to be impeached. This comes after The New York Times published an essay that details an allegation of sexual misconduct that had not previously been made public. NPR has not independently confirmed the incident. A spokesperson for the Supreme Court told NPR that Kavanaugh has no comment on this allegation, and he has denied similar allegations.

Calls for impeaching a Supreme Court justice are unusual, so joining me now is NPR's senior political editor Domenico Montanaro. Welcome to the studio.


CORNISH: The basic question - what does it take to impeach a Supreme Court justice? When was the last time that even happened?

MONTANARO: It's the same process for impeaching a president. You need a majority in the House to impeach, but that doesn't remove someone. It has to go to the Senate for that, where two-thirds of the senators is needed to convict. The last Supreme Court justice, by the way, to be impeached was Samuel Chase way back in 1804. A year later, though, the Senate declined to convict him.

The federal judges that have been removed, and it's only been eight in the last 200 years, mostly have been convicted of things like making false statements, showing favoritism, being drunk on the bench or abusing their ability to hold people in contempt.

In this case, obviously, Democrats don't have control of the Senate, and the Senate majority leader, Mitch McConnell, said there's no chance that he's going to bring this forward, and he called it an unhinged personal attack.

CORNISH: And yet, California Senator Kamala Harris is among those who are calling for impeachment. She defended the idea to NPR's Noel King this morning.


KAMALA HARRIS: There's not been an investigation with the level of attention that normally would occur around these kinds of allegations, and especially related to the subject at hand, which is the appropriateness of this individual serving on the highest court of our land for a lifetime appointment.

CORNISH: What's the benefit to a Democratic candidate to take this stance? She's not the only one.

MONTANARO: Yeah, sure. I mean, she addressed the fact that she's running for president in an - in her interview this morning. She said that she knew that that would be part of the criticism but thought that it was important to bring up anyway. But let's face it. She is running for president. And, you know, she needs to raise her profile. And any Democratic strategist would say, today, it worked. This is something that the base loves. They feel that Kavanaugh lied and that the FBI did a very cursory investigation. And when we polled on impeaching the president, for example, three-quarters of Democrats said that they were in favor of it.

But it's a different story with congressional leadership. I should point you to today. New York Democrat Jerry Nadler - he chairs the House Judiciary Committee and would shepherd any impeachment proceedings. He said he's far more focused on investigating the president and not going forward with a Kavanaugh impeachment. So any impeachment proceeding would have to start in the House, as we laid out earlier. So that avenue appears closed.

CORNISH: And is his reluctance a sign of the risks for Democrats?

MONTANARO: Yeah, sure. I mean, and that's why you don't see Nadler or other moderates in the Senate jumping on this. You don't even need polls, really, to tell you that. I mean, just look at the body language today. President Trump, Mitch McConnell - they're happy to take this issue on and blast Democrats and keep it front and center, whereas moderates like Doug Jones of Alabama, Amy Klobuchar of Minnesota - they're saying that they need more evidence to begin any kind of impeachment proceeding against Kavanaugh, even though they say the process was a sham, in Klobuchar's words, and Jones said that if Kavanaugh lied that he could be impeached. You know, but judicial nominations - those are key to President Trump's base and to his political support. But clearly, this process would make moderates feel very uncomfortable.

CORNISH: That's NPR's Domenico Montanaro.

Thanks for explaining it.

MONTANARO: You're welcome. Transcript provided by NPR, Copyright NPR.