Opinion | The Case for Impeaching Kavanaugh

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Charles Grassley, the chairman of the Senate Judiciary Committee, and Mitch McConnell, the Senate majority chief, appear decided to name a vote subsequent week on the affirmation of Decide Brett Kavanaugh to be an affiliate justice of the Supreme Court docket, even within the face of this week’s sexual assault allegations towards him.

Senate Republicans assume, accurately, that if they’ll maintain the occasion line, his set up on the Supreme Court docket is a certain factor. That is definitely true — even when the Democratic caucus within the Senate holds agency towards Mr. Kavanaugh, they merely lack the votes to dam him. However the Republicans’ calculus accommodates a big error — particularly, the belief that if Mr. Kavanaugh is confirmed to the Supreme Court docket, that’s the top of the dialogue of whether or not he’s match to serve.

The Structure does present that federal judges, together with Supreme Court docket justices, “shall maintain their Workplaces throughout good Habits.” The settled understanding of this phrase is that so-called Article III judges get pleasure from lifetime tenure. However the Structure additionally makes each judicial and govt officers topic to impeachment. And, because it occurs, the Home of Representatives holds “the only Energy of Impeachment.” If the Democrats win again the Home in November, they’ll train that energy.

Impeachment proceedings within the Home are investigative in nature and include a full panoply of quasi-judicial powers, together with aids to investigations, similar to the facility to subpoena witnesses to compel them to seem and testify (topic, in fact, to constitutional privileges, if relevant, such because the Fifth Modification’s assure towards self-incrimination).

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If a easy majority of the Home determined to proceed with impeachment, the Home Judiciary Committee can be empowered to conduct a radical and cautious investigation of the sexual misconduct allegations that Professor Christine Blasey Ford has made towards Mr. Kavanaugh involving a drunken sexual assault when each had been highschool college students in suburban Washington, D.C.

Nor ought to the Democrats wait to formally take management of the Home in January. The Home Democratic management ought to pledge now that in the event that they win a majority, they are going to conduct an impeachment investigation, to get to the reality. Doing so immediately would clarify to the Senate Republicans that in the event that they rush to judgment, within the absence of a full and truthful investigation, there’ll nonetheless be an investigation.

To make certain, the impeachment of a Supreme Court docket justice is a uncommon factor in our democracy. The final member of the Supreme Court docket to face a reputable risk of impeachment was Affiliate Justice Abe Fortas, whom President Lyndon Johnson had nominated to switch Earl Warren as chief justice. Credible allegations of monetary misconduct involving a lifetime paid consultancy with the Wolfson Basis had been made towards Justice Fortas — Wolfson was going through federal legal costs that might simply have discovered their technique to the Supreme Court docket.

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Beneath withering bipartisan criticism, Justice Fortas withdrew his nomination, and in the end resigned from the Supreme Court docket. Had he not resigned, nevertheless, there’s a very good probability he would have been impeached. (The one justice to be impeached was Samuel Chase, who was accused in 1804 of permitting his partisan views to have an effect on his selections, however the effort to oust him failed within the Senate.)

After all, even when the Home impeached Mr. Kavanaugh, it could nonetheless take a two-thirds majority within the Senate to convict and take away him from the Court docket. However the Senate vote would absolutely have at the very least one thing to do with the deserves of the Home’s case: If a full and truthful investigation reveals that Mr. Kavanaugh has lied relating to the incident — he has denied it categorically and says nothing even remotely prefer it ever occurred — Republican senators could discover it exhausting to vote “no” within the #metoo period. It will be a horrible blow to the legitimacy of the Supreme Court docket, in fact, however that is the danger that Senators McConnell and Grassley appear keen to take.

Furthermore, an impeachment investigation may additionally embody allegations that Mr. Kavanaugh has committed perjury before the Senate, twice, related to his work on the nomination of District Judge Charles Pickering to be a judge on the Court of Appeals for the Fifth Circuit. Under oath, both in 2006 and in 2018, he said he had no involvement with the White House strategy sessions associated with Judge Pickering’s nominations. Subsequently released emails, involving these sessions, suggest that these answers were at best misleading and at worst totally false.

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Attending a strategy session as a White House staffer is not a crime. Lying under oath to the Senate Judiciary Committee, on the other hand, is. Perjury would be a perfectly justifiable, and constitutional, basis for impeachment.

An important caveat: Congress must take care to maintain the constitutional convention that has existed since the failed impeachment of Justice Chase. Federal judges, including members of the Supreme Court, should not be impeached based on their judicial rulings or philosophy. Accordingly, if the House were to initiate impeachment proceedings against Justice Kavanaugh in 2019, such proceedings should be strictly limited to questions associated with his alleged intentional and deliberate efforts to mislead the Senate about his character and fitness to serve.

We do not know the truth of the troubling allegations against Judge Kavanaugh. But, before someone is confirmed to the Supreme Court, good faith efforts to discover the truth should be made. And if the Senate won’t conduct a credible investigation now, the House should offer its assistance next year.

Ronald A. Krotoszynski Jr. is a professor at the University of Alabama School of Law.

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