“Much of Washington has spent the week focusing on whether Judge Brett Kavanaugh should be confirmed to the Supreme Court,” Lisa Graves wrote in a Slate column on Sept. 7, more than a week before the New Yorker published the then-anonymous sexual assault claims of Christine Blasey Ford. “After the revelations of his confirmation hearings, the better question is whether he should be impeached from the federal judiciary. I do not raise that question lightly, but I am certain it must be raised.”
Graves wrote that Kavanaugh had misled the Judiciary Committee about the stolen documents that Graves had written as chief counsel for nominations for Sen. Patrick J. Leahy (D-Vt.) when he was the chairman of the committee.
Kavanaugh, she wrote, “lied. Under oath. And he did so repeatedly.”
Therefore, she concluded, “he should not be confirmed. In fact, by his own standard, he should clearly be impeached.”
Since Kavanaugh’s testimony about the Ford allegations, other lawmakers have voiced similar concerns about Kavanaugh’s “integrity” and “dishonesty.”
Graves told The Washington Post on Thursday that each time Kavanaugh testifies, he has shown “only more proclivity to lie to the Senate.”
Impeachment proceedings would be contingent on Democrats regaining control of the House, the only body that can bring an article of impeachment.
Reps. Luis V. Gutiérrez (D-Ill.) and Ted Lieu (D-Calif.) have already flirted with the possibility of impeachment, and Axios recently noted that “top Democratic operatives are already talking about impeachment of Brett Kavanaugh as a 2020 campaign issue if he gets confirmed to the Supreme Court,” adding, “A well-known Democratic strategist says the ‘only question is: Who calls for it first?’ ”
What is impeachment?
At the Constitutional Convention of 1787, the delegates concluded that even those holding the highest office would not be above the law, birthing the American system of impeachment.
Under the Constitution, the president, the vice president and “all civil Officers of the United States” (including those in the executive branch, plus federal judges) may be removed from office for “treason, bribery, or other high crimes and misdemeanors.” The procedure for impeaching a president or a federal judge is broadly the same.
There are two parts to the process:
The House is entrusted with the responsibility of voting on impeachment. Its members decide by a majority vote.
Then the Senate holds a trial for the underlying misconduct. A conviction requires two-thirds of the Senate, or 67 votes. If there is a conviction, the Senate removes the individual from office.
How likely is Kavanaugh’s impeachment?
“It’s as likely as the Democrats winning the House,” said Jed Shugerman, a professor at Fordham University School of Law.
“If they take back the House, I would be surprised if they don’t put forth impeachment proceedings in the next Congress,” Shugerman told The Washington Post.
“At the moment,” according to the Cook Political Report, “Democrats are substantial favorites for House control.”
Even then, though, Shugerman called Kavanaugh’s removal “exceedingly unlikely,” given the supermajority threshold in the Senate.
But there are 51 Republicans and 49 Democrats in the Senate, where Republicans maintain a 7-in-9 chance of keeping control, according to FiveThirtyEight’s calculations — leaving no window for the Democrats to gain a supermajority, even in a best-case scenario.
The “supermajority” threshold for removal is exceedingly high by design: The delegates crafted it to prevent politics from driving the outcome, instead ensuring any misconduct was offensive enough to have bipartisan support for removal.
Nineteen federal officials — including 15 judges and two presidents — have been impeached, but fewer than half have been removed by the Senate, because of the supermajority standard.
The most famous cases resulted in impeachment but not removal.
Andrew Johnson and Bill Clinton were the only two presidents to be impeached by the House. Each reached the Senate for trial, but both were acquitted, Johnson by a single vote. Neither was removed from office.
Only one sitting Supreme Court justice — Samuel Chase — was impeached, on charges of being too partisan in 1805. As with Johnson and Clinton, Chase was acquitted by the Senate and continued to serve.
What are judges impeached for?
There isn’t a clear definition of “impeachable offense,” though historically that is often framed by statutory felonies and involves a significant abuse of power, according to Shugerman, an expert in constitutional law. “Current culture has also changed our understanding of what an abuse of power is,” he said.
In 1970, arguing for the impeachment of Justice William O. Douglas, then-Rep. Gerald Ford (R-Mich.) defined impeachable offenses as “whatever a majority of the House of Representatives considers it to be at a given moment in history. … Something less than a criminal act or criminal dereliction of duty may nevertheless be sufficient grounds for impeachment.”
Douglas was never impeached; the hearings held by the House Judiciary Committee produced no credible evidence and concluded without a vote.
What’s clear, however, is that perjury is a significant offense, especially for a judge.
The question of lying under oath is particularly important for someone who would be or is a member of the judiciary, according to Graves, the former Senate Judiciary Committee lawyer who called for Kavanaugh’s impeachment.
A judge, she said, is a symbol of integrity and the law. To the extent that a judge’s integrity is tainted, it disables that person from being able to continue as a judge.
“Lawyers are officers of the court,” Graves told The Post. “Courts rule on matters and assess witness credibility all the time, so honesty, integrity and truthfulness are paramount qualities for a judge.”
This principle is evidenced by prior successful judicial impeachment proceedings:
Alcee L. Hastings was impeached and removed from the bench for perjury in 1988. (Hastings now serves in Congress, as a Democrat representing Florida’s 20th District.) Walter L. Nixon was impeached and removed for lying to a grand jury in 1989. Most recently, Thomas Porteous Jr. was impeached and removed for committing perjury on financial disclosures in 2010.
Clinton’s impeachment was also based on his alleged lying under oath during a deposition, a proceeding that Kavanaugh was intimately familiar with from his time working on special prosecutor Kenneth W. Starr’s investigative team.
“Even though our political discourse has been defiled by the proliferation of so many politicians' lies, the rules for testifying under oath, whether it’s at the U.S. Senate, trial or deposition, is one of the only sacred vows in a secular society. It should be taken seriously because of that,” Graves said. "[Kavanaugh] certainly held President Clinton to that standard. He’s not above the law any more than the president is above the law.”
If Democrats take control of the House when the next Congress is sworn in come January, it’s possible the House Judiciary Committee would quickly move to investigate Kavanaugh and draft articles of impeachment. Rep. Jerrold Nadler (D-N.Y.), who would chair the committee, has already said he would support such an action.