Last week we learned that — according to a group of Democratic senators — newly released materials show the FBI failed to fully investigate sexual misconduct allegations against Supreme Court Justice Brett Kavanaugh when he was nominated to the court in 2018.
In response, the FBI said it had received more than 4,500 tips on Kavanaugh, providing what it deemed to be relevant ones to former President Trump’s White House team.
Almost immediately upon learning the news, social media was abuzz with calls for Justice Kavanaugh’s impeachment.
Public outrage aside, the bar to impeach a sitting Supreme Court justice is significantly higher than most people would imagine. It simply isn’t a realistic path for those seeking to remove Justice Kavanaugh from the nation’s highest court.
Only one justice has ever been impeached. In 1805, Justice Samuel Chase was impeached by the House of Representatives but later acquitted by the Senate.
But what about the threat of impeachment? Justice Abe Fortas resigned in 1969 before he could be impeached for taking $20,000 a year for life from the family of a Wall Street executive who was under investigation for securities violations.
Could the threat of impeachment work here? Maybe, but probably not.
The nation would essentially be reliving the two impeachments of former President Trump.
To impeach a Supreme Court justice, a majority of the House of Representatives is needed (likely, assuming that this would all be initiated and wrapped up before the 2022 midterm elections) but then the same two-thirds supermajority in the Senate (a practical impossibility).
For those who like to gamble on long shots, a 2019 Vox article references an academic paper in which the authors argue that any federal judge who misbehaves, including a Supreme Court Justice, could be removed through an ordinary court proceeding.
A response to this paper takes issue with the reasoning behind the good behavior argument. The argument also presupposes that other Supreme Court justices would allow one of their own to be removed from office absent impeachment. This seems remarkably unlikely given the times in which we live.
So what other options might exist? Congress could pass a law disqualifying people from being judges if they are convicted of certain crimes.
Even if this happened, it is doubtful that it could be applied retroactively to a judge or justice who has committed a crime and, of course, this is entirely speculative in its application to Justice Kavanaugh, who has not even been charged with a crime in relation to the fact sets discussed in his confirmation hearing.
There is a strong argument to be made that judicial structures and procedures should always protect the nation, not individual judges.
Where any judge begins to serve and new information is discovered about their fitness for office, there need to be reasonable and clear procedures to have them removed.
But we need to keep in mind that evidentiary support makes or breaks any impeachment case.
Democratic leadership would be well-advised that absent significant, incontrovertible new evidence against Justice Kavanaugh, swaying public opinion against the party before the 2022 midterms would fall somewhere between political folly and suicide.
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