The Case for Impeaching Kavanaugh

Senate Republicans appear hell bent to confirm Brett Kavanaugh's nomination to the U.S. Supreme Court, seemingly believing that once he is confirmed, he is safe from removal given the life time nature of the appointment.  This arrogance ignores two things (i) Democrats may win control of the House (and possibly the Senate) in the 2018 midterms, and (ii) judges, including Supreme Court justices, are subject to impeachment, with the exclusive right to impeach being vested in the House of Representatives.  Imagine a Democrat controlled House launching an investigation of Kavanaugh with full powers to subpoena  witnesses and documents.  A Senate Republican rubber stamping of Kavanaugh despite reasonable doubts as to his fitness to sit on the Court could become a full blown nightmare for the GOP, especially if Democrats hit pay dirt in their investigation.   The current gender gap afflicting the GOP could become truly metastatic.  A column in the New York Times by a law professor at the University of Alabama School of Law (actually, a very good school) looks at the scenario the Senate Republicans are seemingly ignoring to the potential peril.  Here are excerpts:

Charles Grassley, the chairman of the Senate Judiciary Committee, and Mitch McConnell, the Senate majority leader, seem determined to call a vote next week on the confirmation of Judge Brett Kavanaugh to be an associate justice of the Supreme Court, even in the face of this week’s sexual assault allegations against him.

Senate Republicans assume, correctly, that if they can hold the party line, his installation on the Supreme Court is a sure thing. This is certainly true — even if the Democratic caucus in the Senate holds firm against Mr. Kavanaugh, they simply lack the votes to block him. But the Republicans’ calculus contains a significant error — namely, the assumption that if Mr. Kavanaugh is confirmed to the Supreme Court, that’s the end of the discussion of whether he is fit to serve.

The Constitution does provide that federal judges, including Supreme Court justices, “shall hold their Offices during good Behavior.” The settled understanding of this phrase is that so-called Article III judges enjoy lifetime tenure. But the Constitution also makes both judicial and executive officers subject to impeachment. And, as it happens, the House of Representatives holds “the sole Power of Impeachment.” If the Democrats win back the House in November, they can exercise that power.

Impeachment proceedings in the House are investigative in nature and come with a full panoply of quasi-judicial powers, including aids to investigations, such as the power to subpoena witnesses to compel them to appear and testify (subject, of course, to constitutional privileges, if applicable, such as the Fifth Amendment’s guarantee against self-incrimination).

If a simple majority of the House decided to proceed with impeachment, the House Judiciary Committee would be empowered to conduct a thorough and careful investigation of the sexual misconduct allegations that Professor Christine Blasey Ford has made against Mr. Kavanaugh involving a drunken sexual assault when both were high school students in suburban Washington, D.C.

Nor should the Democrats wait to formally take control of the House in January. The House Democratic leadership should pledge now that if they win a majority, they will conduct an impeachment investigation, to get to the truth. Doing so today would make clear to the Senate Republicans that if they rush to judgment, in the absence of a full and fair investigation, there will still be an investigation.

The last member of the Supreme Court to face a credible threat of impeachment was Associate Justice Abe Fortas, whom President Lyndon Johnson had nominated to replace Earl Warren as chief justice. Credible allegations of financial misconduct involving a lifetime paid consultancy with the Wolfson Foundation were made against Justice Fortas — Wolfson was facing federal criminal charges that could easily have found their way to the Supreme Court.

Under withering bipartisan criticism, Justice Fortas withdrew his nomination, and ultimately resigned from the Supreme Court. Had he not resigned, however, there’s a good chance he would have been impeached.

Of course, even if the House impeached Mr. Kavanaugh, it would still take a two-thirds majority in the Senate to convict and remove him from the Court. But the Senate vote would surely have at least something to do with the merits of the House’s case: If a full and fair investigation shows that Mr. Kavanaugh has lied regarding the incident — he has denied it categorically and says nothing even remotely like it ever occurred — Republican senators may find it hard to vote “no” in the #metoo era. It would be a terrible blow to the legitimacy of the Supreme Court, of course, but this is the risk that Senators McConnell and Grassley seem willing to take.

Moreover, an impeachment investigation could also encompass 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.

Perjury would be a perfectly justifiable, and constitutional, basis for impeachment. . . . 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.

I very much like this approach.  It specifically puts Senate Republicans on notice that if they fail to do their job, Democrats will do it nonetheless if they win control of the House in 2019 and Republicans could not only see Kavanaugh impeached, but also could see severe damage done to Senate Republicans and the GOP brand.