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

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Supreme Court Justice Brett Kavanaugh is facing a new allegation of sexual misconduct, leading some Democrats to call for his impeachment. Above, he listens to a discussion at a Washington event. Photo by Zach Gibson - Getty Images

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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