Impeaching Kavanaugh rouses progressive Democrats after confirmation

The movement could pick up steam if the party wins the House in November, but some legal scholars warn it's a terrible idea.
by Alex Seitz-Wald /
Image: Kavanaugh testifies about sexual assault allegations against Supreme Court nominee Judge Brett M. Kavanaugh on Capitol Hill in Washington
Judge Brett Kavanaugh testifies in front of the Senate Judiciary committee regarding sexual assault allegations on Capitol Hill in Washington on Sept. 27, 2018.Erin Schaff / Reuters file

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WASHINGTON — Even before Brett Kavanaugh won the Senate's consent to ascend to the Supreme Court, liberals started looking for ways to remove him.

A petition to impeach Kavanaugh has gathered over 125,000 signatures, progressive groups have raised money to expel him from the federal bench and a key Democratic lawmaker has promised to investigate the judge if the party retakes the House in November.

While it's highly unlikely Kavanaugh will become the first Supreme Court justice in American history to be removed (Samuel Chase was impeached in 1804 but was acquitted by the Senate and remained on the bench), the calls for his ouster speak to the fury felt by the liberal base.

Kavanaugh is being sworn in Saturday so he can immediately begin work on the court, which started its term on Monday.

"An accused sexual predator who committed perjury by repeatedly lying under oath to the Senate Judiciary Committee has no business being a judge — period," said Heidi Hess, co-director of the liberal group CREDO Action, which organized the Kavanaugh impeachment petition.

"We will particularly focus on making sure House Democrats know that progressives expect them to use their full power to get Kavanaugh off the bench if they gain control of the House," she added. "A majority of Americans opposed Kavanaugh's confirmation to the Supreme Court and we believe a majority will ultimately support his impeachment as well."

Donald Trump Jr. warned Republicans about the possibility on Friday.

Tension between those who want to remove Kavanaugh and those in the party who want to focus on other priorities has already forced some difficult decisions for Democratic-leaning groups in this year's election.

Former Tennessee Gov. Phil Bredesen, who is running for the Senate, offers Democrats one of their best shots at picking up a seat next month, while Sen. Joe Manchin, D-W.Va., is one of the most vulnerable Democratic incumbents up for re-election.

But after both announced Friday that they approve of Kavanaugh's nomination, some progressive groups moved quickly to cut off support.

"Get your wallet out (Phil Bredesen) because you just lost all your volunteers," the Eastern Tennessee chapter of the anti-Trump "resistance" group Indivisible wrote on Twitter.

MoveOn also announced it was canceling a six-figure advertising campaign for Bredesen "due to his Kavanaugh position" and foreclosed any possible further efforts to help Manchin. Priorities USA, Democrats' largest super PAC, is not spending money in either race and won't be, said spokesperson Josh Schwerin.

Rep. Jerrold Nadler, D-N.Y., who would become chairman of the House Judiciary Committee if Democrats retake the House, and who would probably be the point-person on issues of impeachment, has signaled that he would reopen an investigation into Kavanaugh, who would be a sitting member of the high court by the time the new Congress is sworn in in January.

"Accountability is what has been missing under the Republicans," Nadler said in the weekly Democratic address. "This is something we have to address, in the interest of the American people and for the health and future of our democracy."

Image: Protestors Rally Against Brett Kavanaugh Nomination Outside Yale Club In NYC
Yale alumni gather in front of the Yale Club to voice their opposition to the confirmation of Republican Supreme court nominee Judge Brett Kavanaugh, who also received degrees from Yale on Oct. 2, 2018 in New York City.Spencer Platt / Getty Images

Nadler offered more detail in an interview with The New York Times, saying a Democratic Congress would probably move quickly to subpoena records from the White House and the FBI relating to their background investigation into Kavanaugh, and that it would consider interviewing dozens of potential witnesses whom the FBI did not.

Meanwhile, 40 members of the Congressional Progressive Caucus, which speaks for the left flank of House Democrats, sent a letter to Trump last week suggesting Kavanaugh's impeachment could be the outcome of further investigation.

"If a careful examination of the entire scope of his legal history — thus far withheld from the Senate — demonstrates that Mr. Kavanaugh lied under oath, the constitutionally prescribed remedy would be impeachment proceedings," the lawmakers wrote.

Even House Minority Leader Nancy Pelosi, D-Calif., who has aggressively tamped down talk of impeaching President Donald Trump inside her caucus, has not closed the door on going after Kavanaugh, though she said it "would not be my plan."

Many Trump allies now take it for granted that Democrats will try to bring down not only Kavanaugh but the president if a blue wave materializes in November.

"This is absolutely a scrimmage for impeachment," said Michael Caputo, a former Trump campaign adviser. "I believe they will try to impeach Brett Kavanaugh, I believe they will try to impeach President Trump."

But many liberals think impeaching Kavanaugh, or even talking about it, is not only bad politics, but dangerous for democracy.

"That is not happening anytime soon," said Jim Manley, a former aide to Harry Reid, the former Democratic Senate leader. "I really wish folks would stop this talk of impeaching Kavanaugh and keep the focus on where it belongs" — the midterm elections.

Chase, who was appointed by President George Washington, was acquitted by the Senate on charges that involved his conduct as a trial judge in lower courts and he remained on the Supreme Court until his death seven years later. The outcome would likely be similar for any attempt to impeach Kavanaugh.

Portrait Of Samuel Chase
Engraved portrait of Samuel Chase (1741-1811), early 19th Century. Chase served as an Associate Justice of the United States Supreme Court from 1796 to 1811 and is the only Justice to be impeached, although he was acquitted by the Senate and remained on the court. Stock Montage / Getty Images

While it takes majority of the House to impeach a federal official, kicking them out of office requires a two-thirds supermajority of the Senate, or 67 votes. Even if Democrats beat the odds and manage to win control of the Senate in November, they would need to find a large number of Republican senators to join them in taking the historically unprecedented action of removing a sitting Supreme Court justice.

That's why even many progressive opinion leaders are urging liberal voters not to invest energy or hope in what Mother Jones magazine calls a "liberal fantasy."

Worse still, warned Jonathan Turley, a prominent liberal legal scholar, impeaching Kavanaugh would set a dangerous precedent that either party could use to alter the balance of power on the court for political reasons.

"This is a terribly reckless idea for the Democrats to pursue," said Turley, a professor at George Washington University's Law School. "If we start to impeach justices based on shifting congressional majorities then we'll reduce ourselves to the level of Robespierre."

Judicial impeachments are rare for a reason, Turley noted, and they're designed to address misconduct while on the bench, not actions before judges are sworn in, as is the case with the charges against Kavanaugh.

Only 15 federal judges have been impeached and eight were convicted by the Senate, according to the historian of the House of Representatives. A handful of others have resigned under threat of impeachment, including former Supreme Court Justice Abe Fortas, who stepped down in 1969 after it was revealed that he accepted payments from a friend under federal investigation.

Even liberal mega-donor Tom Steyer, who has spent $50 million on an effort pushing for Trump's Impeachment, is not throwing his weight or money behind the Kavanaugh removal effort.

"I don't think we are headed in that direction at this point," said Alberto Lammers, a spokesperson for Steyer’s Need to Impeach effort against Trump. "We are focused on the midterm elections."

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