impeach Kavanaugh, Impeachment, Impeachment of Judge Porteous, impeachment of judges, judicial impeachment, kavanaugh
By Frank Bowman
This morning as I walked into the cafe where I get my morning coffee, I passed a newspaper vending machine (yes, they still exist) from which a USA Today headline blared the suggestion that the fight over Judge Kavanaugh’s Supreme Court nomination might not end with Senate confirmation. IMPEACHMENT, the article suggested might follow if Democrats gained control of Congress. It even quoted some congressional Democrats intimating that congressional investigation and even impeachment were live possibilities.
It is true that federal judges, including Supreme Court justices, can be, and have been, impeached. It is also true that there is precedent for impeaching a federal judge based on pre-confirmation conduct and/or lies told during the confirmation process (which is presumably the basis on which any impeachment investigation of Kavanaugh would be launched).
In 2010, Thomas Porteus, U.S. District Judge for the Eastern District of Lousiana, was impeached, convicted, and removed on charges of corruption in his previous office of state judge and also for false statements made during the process of Senate confirmation. This impeachment seems to have settled the previously unresolved question of whether conduct prior to taking office could be the basis for impeaching federal judges who, per the Constitution, serve during “good behavior.”
That said, the idea that anything either known or suspected about Kavanaugh would stack up as a plausible impeachable offense is just unsupportable. He may well be lying about his encounter with Christine Blasey Ford thirty-some years ago. But whatever people’s intuition or even moral certainties, the truth of that affair is profoundly unlikely ever to be known. (The only way the matter could be resolved with any certainty would be if Kavanaugh’s supposed wingman in the business, Mark Judge, were to step forward and confirm Dr. Ford’s account. And that seems vanishingly unlikely.)
He may be lying about how much he drank in high school and college, and about whether he behaved like a jerk. But those questions are in some measure subjective. One person’s aggressive drunk is another person’s hale-fellow-well-met party enthusiast. For that reason, not to speak of the passage of time, the truth will remain contestable. But far more importantly, tidying up your youthful social indiscretions is just not impeachable conduct.
He may be lying about exactly what he knew and did during his time at the Bush White House, obscuring his participation in partisan maneuvering around judicial nominations or other matters. If conclusively proven, that would matter far more than fudging about his youthful drinking habits. But the odds are extremely high that, even if every scrap of paper relating to his work in the Bush years were disclosed, no perjury will be provable. At most, shadings of ambiguous truth.
I can hear Democratic partisans screaming, “But what if we can conclusively prove he lied?!!! It’s not that he was a drunk or a partisan hack, but he lied under oath!!! Surely that’s impeachable.” To which the answer is, yes, judges have been impeached for perjury, but in every case the lies were about the judge’s own participation in overt corruption. There is no precedent either in America or Great Britain for impeaching a judge or any other official for the kind of lies that amount to making oneself look a little more upright and a bit less partisan than one actually is.
Leave to one side the rank hypocrisy of Democrats — who lined up in solid phalanx against impeaching Bill Clinton for perjury about adultery — hollering to impeach anybody not for what they did, but for lying about it. No sensible person should want to open the door to a world in which Congress demands a do-over on federal judges every time control of the legislature changes hands. If either party starts trying to reverse confirmations because they didn’t care for the results, the legitimacy of the federal courts as constitutional arbiters, already tottering, would be utterly destroyed.
Now, let’s be clear. I’d rather Judge Kavanaugh were not confirmed. If he committed one or more sexual assaults when young, and even if there is probable cause to believe he did, he ought not be confirmed. If he is lying about other things, he ought not be confirmed. Even if he is telling the truth as he understands it about all the episodes of his youth, his outburst during the Senate hearing revealed him to be both bitterly partisan and unable to maintain the equanimity essential to a Supreme Court justice.
But if he is confirmed, impeachment ought not even be seriously contemplated, at least absent revelations of misbehavior or criminality on a completely different plane that anything so far revealed. Even launching an impeachment investigation based on no more than what is now known would be a grave disservice to the country. The process would further politicize the court and embitter (or further embitter) Kavanaugh, other members of the Court, and even the most moderate of Republicans.
And any such effort would surely fail. There is almost no chance that anything exposed by such an investigation would produce revelations that even all House Democrats would consider impeachable, still less any Republicans whatever. In the surpassingly unlikely event that articles of impeachment could secure a majority of the House, the odds of gaining a two-thirds majority in the Senate, which would require at least 16 Republican votes even if the Democrats control the Senate after November, approach zero. The whole process would be a farce, a transparent pander to angry elements of the Democratic base.
Democratic leaders in both Houses should firmly suppress any notion that impeachment is possible. Either Kavanaugh is stopped now, or he’s on the high court until he dies. Those are the possibilities. Anything else is dangerous fantasy.
Getting a majority in the Senate to convict on perjury is indeed impossible. Getting twelve good men and true to convict is much easier.
Steve Smith said:
Wouldn’t it be easier to pack the Court?
If the Dems control all branches.
What if, say, it were demonstrated that Kavanaugh had testified under oath as to his late awareness of certain allegations and actions in reaction to them, but in fact was documented collaborating with Republican Senators and the White House long before then on strategies to either suppress or contest specific potential allegations?
In other words, that accusations had been anticipated and Kavanaugh lied as to his (fore)knowledge? Would this be sufficiently corrupt with respect to official conduct to make impeachment acceptable?
Good question. The problem with all questions about impeachment is that, at bottom, the process is political — the conduct generally conceded to be impeachable will, almost always, relate to performance of the duties of office, or in rare cases, the process by which office is obtained. And the judgment about whether such conduct is serious enough will be political, both because it must be made by politicians and because it involves a judgment about whether the conduct either poses a risk to the polity generally or demonstrate manifest unfitness for office. There just aren’t clean “legal” answers to questions like that.
That being said, sure, if Kavanaugh said, under oath, “I didn’t know about fact X until last Tuesday at 9:00 am,” and it could be conclusively proven that he had instead known about it a week before Tuesday. And if the fact was really important and the timing of his knowledge was really important, I could imagine impeachment on that ground.
But look at what we’re talking about here — essentially lies about how the guy prepared for his confirmation. I gotta tell you that I think most Supreme Court nominees in the present day tell some whoppers on that score, or at least fudge or conceal the truth a bit. The process is so politicized that nobody wants to admit anything about anything. Would one really want to create a precedent that any Supreme Court justice can be removed if Congress thinks he or she was not 100% forthcoming about the prepping and vetting process? I certainly wouldn’t want to got there. Much too easy to start tit-for-tat warfare.
Again, I have no love for Kavanaugh and less for many of the people pushing him. But sometimes we all need to swallow our outrage and think about the longterm implications of short term “wins.”