By JOHN CULHANE-Politico
The FBI’s supplemental background check of Supreme Court nominee Brett Kavanaugh has just been completed. We don’t yet know what, if anything, was uncovered beyond what we already knew—or whether anything in the report will change votes in the Senate. Indeed, we may never even know what’s in the report, given contradictory statements by GOP senators as to whether the findings, or at least a summary of them, will be made public.
What we do know is that the background check, which was supposed to examine all credible allegations of sexual assault made against Kavanaugh, has made matters more complicated. For reasons that aren’t completely clear—either the Senate’s actual request for supplemental information was narrower than promised, or the White House directed the FBI not to pursue certain leads—many senators are worried that the Republican-guided FBI investigation won’t be sufficient to quell concerns about the judge’s fitness to serve on the Supreme Court.
If the investigation has been as superficial as some reporting suggests—despite calls from GOP Senators Jeff Flake, Lisa Murkowski and Susan Collins for it to be thorough—and if Kavanaugh does manage to squeak through, Democrats are not likely to let it go. Indeed, it is entirely possible—no, likely—that, if they win control of the House of Representatives in November, the new majority party will consider articles of impeachment against Kavanaugh before his seat on the high court is warm. The course of such a proceeding has the potential to be so perilous and unpredictable that wavering Republican senators should consider that possibility before casting their votes to put Kavanaugh on the court in the first place. Facts that come to light in impeachment could come back to haunt senators who vote to support him.
So how would impeaching a Supreme Court justice work, exactly?
The Constitution contemplates removal from office of judges on the same terms as are available against any federal official—terms that are by now familiar because they’re so frequently mentioned against Trump. Under 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.” In all cases, the House investigates and votes on articles of impeachment, and any articles that receive a majority vote are then passed along to the Senate. That body then conducts a trial, and a supermajority of two-thirds is required for removal of the officer.
Although there have been only a tiny number of impeachment proceedings against federal judges at any level since the Constitution was ratified, those that have taken place have laid down significant markers that can help us understand the possibilities in this case.
According to the Brennan Center for Justice, only 15 federal judges have been impeached in the nation’s history. Of those, only eight were convicted and removed from office. When it comes to the Supreme Court, there’s barely any history at all— only one justice, Samuel Chase, was impeached in the House, and the Senate fell far short of removing him from the bench. He ended up serving on the high court until he died, in 1811. These few cases, though, should be enough to get the Senate’s attention now.
Does the Senate have an argument to make for impeaching Kavanaugh? Although the term “high Crimes and Misdemeanors” is not exactly a model for the kind of precise drafting that contemporary law requires, it’s clear enough to exclude certain kinds of cases that Kavanaugh’s most vociferous opponents might want to make against him. The raging, partisan screed that served as his opening statement last week has many questioning his judicial temperament, but that’s a problem to consider before giving him a lifetime appointment—not grounds for removal, even if he dials the anger up to 11 once he’s on the bench. Similarly, even if he immediately becomes the fifth vote to overrule Roe v. Wade,well, that’s too bad for those hoping to oust him—even if he dissembled about how he might rule on abortion during the confirmation process. Justices are free to rule as they wish, no matter what they might have indicated (or, increasingly, refused to indicate) during questioning.
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