Four Democratic presidential candidates, including Sens. Kamala D. Harris (Calif.) and Elizabeth Warren (Mass.), have called for the impeachment of Supreme Court Justice Brett M. Kavanaugh following a report in the New York Times that he allegedly committed sexually inappropriate acts while an undergraduate at Yale University in the 1980s. Whatever one thinks of the underlying charges’ merit, calling for impeachment is unjustified and simply one more log on the roaring fire of hyperpartisanship that is destroying American democracy.
The Times reported that a classmate of Kavanaugh’s, Max Stier, told senators and the FBI before Kavanaugh’s confirmation hearing that he allegedly saw Kavanaugh with his pants down at a dorm party, and that Kavanaugh’s friends pushed his genitalia into a woman’s hand. The incident, which the FBI did not investigate, echoes a separate alleged incident reported prior to Kavanaugh’s hearings that he exposed himself to classmate Deborah Ramirez. Kavanaugh has denied Ramirez’s allegations and declined to comment on Stier’s account.
Democrats are using this new report to argue that the investigations into the alleged misconduct, as well as the uncorroborated allegations by Christine Blasey Ford that Kavanaugh sexually assaulted her when they were both in high school, were a sham and that Kavanaugh lied to senators about the allegations during his hearing.
But their calls for impeachment remain hollow, and not just because the Times now acknowledges that the person to whom Kavanaugh allegedly exposed himself, according to Stier, declined to be interviewed and that her friends say she does not recall the incident.
Modern democracy’s stability rests on the idea that one’s political opponents can be wrong without being disloyal. This means one can bitterly oppose others in elections while acknowledging that an opponent’s victory is legitimate and ought not to be undermined. This concept of the “loyal opposition” remediated the flaw in ancient democracies such as Athens, which fell because political opponents would seek to deprive their adversaries of their property, their freedom and even their lives when they held power.
The United States adopted this concept after the bitter election of 1800. Thomas Jefferson’s Democratic-Republicans hated Alexander Hamilton’s Federalists, alleging that they were secret monarchists who sought to undermine self-government. Yet they made no effort to deprive those people, whom they argued of subverting the regime, of their rights. Instead, Jefferson contended in his first inaugural address that “every difference of opinion is not a difference of principle.” The Federalists whom he hated would be as free and undisturbed in their rights as the Democratic-Republicans whom he loved.
This is when we established that impeachment ought not to be used to remove political opponents from office simply because of political disagreements. Democratic-Republicans in Congress impeached Federalist Supreme Court Justice Samuel Chase because of his open partisanship. But the Senate refused to convict, accepting Chase’s argument that impeachment ought to be reserved for actual indictable offenses that flow from one’s conduct in office. Since then, our unwritten code has prevented impeachment from being used as a means to undo a lost election.
It is difficult to avoid the impression that this is what really drives Democratic desire to impeach Kavanaugh and President Trump. Polls show that 65 percent of Clinton voters backed impeaching Trump only days after his inauguration. That figure rose to 83 percent by early February 2017. Similarly, polls from 2018 show that Democrats deeply opposed Kavanaugh’s nomination well before any allegation of sexual impropriety was levied. Polls also show that support of opposition for Kavanaugh completely colored how one viewed the subsequent allegations, with opponents believing them and supporters rejecting them. It’s clear what’s going on: Differences in political opinion are causing Democratic voters to support any means necessary to defeat their opponents.
Democratic calls to impeach Kavanaugh are especially hypocritical in light of their defense of President Bill Clinton against similar charges that he exposed himself and committed sexual assault. The current calls can be justified on one of two grounds — the allegations of impropriety themselves or the claim he perjured himself about them in his confirmation hearing. Taken seriously, both arguments should have led Democrats to support removing Clinton from office.
But no leading Democrat said the charges against Clinton merited his impeachment and removal from office. Clinton’s defenders also rejected the argument that he had perjured himself in depositions and grand jury testimony about his alleged sexual misconduct. They effectively argued that Republican impeachment efforts were simply trumped-up charges masking their true political motives. That’s what Hillary Clinton’s claim her husband was the victim of a “vast right-wing conspiracy” was all about.
Bill Clinton’s acquittal should have had the same effect as Chase’s did nearly 200 years earlier. If Clinton’s perjury was not an impeachable offense, then neither should Kavanaugh’s alleged perjury be. And if the thin evidence underlying the misconduct allegations against Clinton were not enough to deny him the presumption of innocence, so too must it be for Kavanaugh.
Separating politics from impeachment sets boundaries on our political battles, making our democracy stronger as a result. In our nation’s youth, Jefferson condemned “political intolerance” as “capable [of] bitter and bloody persecutions.” We would be right to remember that today.