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Can Brett Kavanaugh Be Impeached?

WASHINGTON, DC - SEPTEMBER 27: Judge Brett Kavanaugh testifies to the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill September 27, 2018 in Washington, DC. Kavanaugh was called back to testify about claims by Christine Blasey Ford, who has accused him of sexually assaulting her during a party in 1982 when they were high school students in suburban Maryland. (Photo by Win McNamee/Getty Images)
By Andrew Leonatti on September 24, 2019

Last weekend dragged one of last year’s most divisive events, the confirmation of Brett Kavanaugh to the U.S. Supreme Court, back into the spotlight.

The New York Times published a passage from an upcoming book on the Kavanaugh confirmation process that appeared to uncover an additional episode of a young Kavanaugh forcing himself on a female Yale University student. That was followed up by a Washington Post report that the FBI had failed to investigate the incident last year, despite a U.S. senator asking them to.

It was just a day later, however, that the NYT story was updated to include that the alleged victim declined to be interviewed, and her friends said that the woman “does not recall the episode.”

A Fire Reignited

The reemergence of the Kavanaugh affair with a salacious new allegation brought renewed partisan sniping and questioning of Kavanaugh’s legitimacy. Several Democratic presidential candidates called for Kavanaugh’s impeachment from the bench, arguing that he lied under oath during his confirmation hearings.

Since Bill Clinton’s impeachment and the harshening of our political rhetoric since then, impeachment and each president’s “legitimacy” has never been far from the center of our national discourse.

But we never really talk about removing judges from the bench. Can lawmakers even do that?

Yes, but It’s Difficult

Supreme Court justices receive lifetime appointments. New presidents can’t fire old justices who they dislike. The only process for removing justices is the impeachment process, and it’s the same as the process for impeaching and removing the president.

That means a majority of members of the House of Representatives would have to vote to impeach Kavanaugh. Then, a two-thirds majority of senators would have to vote to remove him.

To date, only Associate Justice Samuel Chase was impeached in 1805. But senators acquitted him and did not remove him from office. It’s unlikely that Kavanaugh will join that exclusive club.

But in a 2006 article for the Yale Law Journal, two law professors argued that language in the Constitution that says federal judges “shall hold their offices during good behavior” does provide an avenue for removing judges through a process other than impeachment. However, putting that process in place would likely be messy and destroy centuries of tradition.

In other words, it would likely cause even more division.

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