One year ago, a bitterly divided Senate voted to confirm Supreme Court Justice Brett M. Kavanaugh to a lifetime appointment on the nation’...
One year ago, a bitterly divided Senate voted to confirm Supreme Court Justice Brett M. Kavanaugh to a lifetime appointment on the nation’s highest court; the vote was 50 to 48.
Now, as the Oct. 8 anniversary of his confirmation nears, the New York Times reports it has uncovered and corroborated a previously unreported claim of sexual misconduct against Kavanaugh, and that it found the FBI interviewed none of the potential witnesses. The story, published Saturday evening, compelled several Democrats to demand a new investigation into the Supreme Court justice.
Even before the recent spate of sexual misconduct allegations, murmurs among Kavanaugh opponents fixated on whether he had lied under oath before the Senate Judiciary Committee. Saturday’s story from the Times quickly raised new questions about whether Kavanaugh perjured himself and reignited calls for his impeachment.
“Brett M. Kavanaugh lied to the U.S. Senate and most importantly to the American people,” presidential contender Sen. Kamala D. Harris (D-Calif.) said Sunday of last year’s confirmation hearings. “He was put on the Court through a sham process and his place on the Court is an insult to the pursuit of truth and justice. He must be impeached.”
President Trump rejected Democrats’ calls for impeaching Supreme Court Justice Brett Kavanaugh on Sept. 15. (Reuters)
Since Saturday, Sen. Elizabeth Warren (D-Mass.) and former housing and urban development secretary Julián Castro, also Democratic presidential candidates, pushed for Kavanaugh’s impeachment, too.
What is impeachment?
At the constitutional Convention of 1787, the delegates concluded that even those holding the highest office would not be above the law, birthing the American system of impeachment.
Under the Constitution, the president, the vice president and “all civil Officers of the United States” (including those in the executive branch, plus federal judges) may be removed from office for “treason, bribery, or other high crimes and misdemeanors.” The procedure for impeaching a president or a federal judge is broadly the same.
There are two parts to the process:
The House is entrusted with the responsibility of voting on impeachment. Its members decide by a majority vote.
Then the Senate holds a trial for the underlying misconduct. A conviction requires two-thirds of the Senate, or 67 votes. If there is a conviction, the Senate would remove the individual from office.
How likely is Kavanaugh’s impeachment and removal?
Impeachment proceedings are contingent on Democrats controlling the House, the only body that can bring an article of impeachment. The current House breakdown is 235 Democrats, 198 Republicans, one Independent and one vacancy, according to the Cook Political Report, which puts impeachment in the realm of political possibility.
Yet Kavanaugh’s removal is exceedingly unlikely, given the supermajority threshold in the Senate, where there are 53 Republicans, 45 Democrats and two Independents (who caucus with the Democrats). The “supermajority” threshold for removal is exceedingly high by design: The delegates crafted it to prevent politics from driving the outcome, instead ensuring any misconduct was offensive enough to have bipartisan support for removal.
Nineteen federal officials — including 15 judges and two presidents — have been impeached, but fewer than half have been removed by the Senate because of the supermajority standard.
The most famous cases resulted in impeachment but not removal. Andrew Johnson and Bill Clinton were the only two presidents to be impeached by the House. Each reached the Senate for trial, but both were acquitted, Johnson by a single vote. Neither was removed from office.
Only one sitting Supreme Court justice — Samuel Chase — was impeached, on charges of being too partisan in 1805. As with Johnson and Clinton, Chase was acquitted by the Senate and continued to serve.
What are judges impeached for?
There isn’t a clear definition of “impeachable offense,” though historically it is often framed by statutory felonies and involves a significant abuse of power, according to Jed Shugerman, a professor at Fordham University School of Law and expert in constitutional law. “Current culture has also changed our understanding of what an abuse of power is,” he said.
In 1970, arguing for the impeachment of Justice William O. Douglas, then-Rep. Gerald Ford (R-Mich.) defined impeachable offenses as “whatever a majority of the House of Representatives considers it to be at a given moment in history. … Something less than a criminal act or criminal dereliction of duty may nevertheless be sufficient grounds for impeachment.”
Douglas was never impeached; the hearings held by the House Judiciary Committee produced no credible evidence and concluded without a vote.
What’s clear, however, is that perjury is a significant offense, especially for a judge.
The question of lying under oath is particularly important for someone who would be or is a member of the judiciary, according to Graves, the former Senate Judiciary Committee lawyer who called for Kavanaugh’s impeachment after his confirmation to the Supreme Court.
A judge, she said, is a symbol of integrity and the law. To the extent that a judge’s integrity is tainted, it disables that person from being able to continue as a judge.
“Lawyers are officers of the court,” Graves told The Post. “Courts rule on matters and assess witness credibility all the time, so honesty, integrity and truthfulness are paramount qualities for a judge.”
This principle is evidenced by prior successful judicial impeachment proceedings:
Alcee L. Hastings was impeached and removed from the bench for perjury in 1988. (Hastings now serves in Congress, as a Democrat representing Florida’s 20th District.) Walter L. Nixon was impeached and removed for lying to a grand jury in 1989. Most recently, Thomas Porteous Jr. was impeached and removed for committing perjury on financial disclosures in 2010.
Clinton’s impeachment was also based on his alleged lying under oath during a deposition, a proceeding that Kavanaugh was intimately familiar with from his time working on special prosecutor Kenneth W. Starr’s investigative team.
“Even though our political discourse has been defiled by the proliferation of so many politicians’ lies, the rules for testifying under oath, whether it’s at the U.S. Senate, trial or deposition, is one of the only sacred vows in a secular society. It should be taken seriously because of that,” Graves said. "[Kavanaugh] certainly held President Clinton to that standard. He’s not above the law any more than the president is above the law.”
Now what?
For now, the burden rests with the House.
It’s possible the House Judiciary Committee quickly moves to reinvestigate Kavanaugh and draft articles of impeachment.
Rep. Jerrold Nadler (D-N.Y.), who chairs the committee, has previously said he would support such an action. In August, he requested the National Archives release records from Kavanaugh’s time in George W. Bush’s White House.
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