Kavanaugh clash could carry on past midterms
If Dems gain power, they could try impeachment
The controversy over Brett Kavanaugh may not end with a confirmation vote. Look for questions to continue if he gets a seat on the Supreme Court, and especially if Democrats make gains in November.
The battle over Judge Brett Kavanaugh’s nomination to the Supreme Court is unlikely to end with his confirmation vote.
Democrats said they won’t let go of the sexual assault allegations against Kavanaugh – or accusations he lied about them and other issues before the Senate Judiciary Committee – even if he is elevated to the high court. If they win control of one or both houses of Congress in November, they’ll be in a position to continue the fight.
“If he is on the Supreme Court and the Senate hasn’t investigated, then the House will have to,” Rep. Jerrold Nadler, the top Democrat on the House Judicia-
ry Committee, told ABC’s “This Week” on Sunday. “We would have to investigate any credible allegations, certainly of perjury and other things that haven’t been properly looked into before.”
If Democrats win the House, the New York lawmaker would be in line to chair the committee, giving him not only subpoena power but also the ability to draw up articles of impeachment.
The same impeachment power that Congress can use to remove the president can be used against federal judges – including Supreme Court justices.
The process works much the same way: The House votes to impeach by a simple majority vote, sending the question of removal to the Senate. (There’s one key difference: Unlike in a presidential impeachment trial, the chief justice does not preside over the impeachment of a judge. That job goes to the vice president, as the president of the Senate.)
A House investigative panel would have the power to compel the testimony of witnesses and gather documents. That investigation could be broader than the sexual harassment allegations, and the constitutional threshold for impeachment – “high crimes and misdemeanors” – isn’t limited to criminal wrongdoing.
Some Democrats called for Kavanaugh’s impeachment as a judge on the U.S. Court of Appeals for the District of Columbia after his initial confirmation hearing for the Supreme Court. They accused him of lying under oath about his involvement in judicial nominations when he worked as an attorney for President George W. Bush.
Then Christine Blasey Ford went public with allegations that Kavanaugh held her down in the bedroom of a house in Bethesda, Maryland, when she was 15 years old, groped her and attempted to remove her clothes.
Kavanaugh denied those allegations last week in sworn testimony to the Senate. If that denial is proved to be untruthful, it could form the basis for impeachment.
“If that could be established, that, it seems to me, would be the relevant high crime and misdemeanor,” said Richard Broughton, who studies impeachment at the University of Detroit Mercy School of Law.
Removal from the Supreme Court requires a two-thirds vote of the Senate – a high bar even if Democrats pick up seats in November.
“To pierce the intense partisanship and get to two-thirds, it would take far more clarity about the evidence than we have now,” Broughton said. “Presumably, that’s what some hope will emerge from the FBI inquiry.”
Ford alleged that the sexual assault took place in the early 1980s. That makes it difficult to investigate but wouldn’t have any legal bearing on impeachment, said Alan Baron, a Washington attorney.
“There’s certainly precedent for it, whether it’s 10 years old or 10 days old,” he said.
Baron was the was the special counsel for the last successful impeachment case in 2010.
U.S. District Judge Thomas Porteous, a Clinton appointee from Louisiana, was convicted in the Senate of four counts, including a charge that he misled the FBI and the Senate during his confirmation process.
The vote on that count was 90-6. Only once has a Supreme Court justice been impeached. Samuel Chase, a Federalist justice appointed by President George Washington, was impeached by a Democratic-Republican House in 1804 for “arbitrary, oppressive, and unjust” decisions on the court.
The Senate declined to remove him from office, setting a precedent that exists to this day. As former Chief Justice William Rehnquist noted in a 1992 book about the case, “it assured the independence of federal judges from congressional oversight of the decisions they made in the cases that came before them.”