Brett Kavanaugh's impeachment won't happen. But calling for it is still useful.

Only one Supreme Court justice has ever been impeached, and the newest justice is unlikely to be the second. But there's more here than meets the eye.
The justices of the Supreme Court gather for a formal group portrait on Nov. 30, 2018.
Four of the nine justices on the Supreme Court were nominated by presidents who entered the White House without having won the popular vote.Chip Somodevilla / Getty Images
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By Scott Lemieux

In response to a new book by two New York Times reporters about Brett Kavanaugh’s Supreme Court nomination that found further corroboration for accusations of sexually inappropriate behavior, which Kavanaugh denied under oath at his confirmation hearing, several Democratic candidates for president — including Elizabeth Warren, Kamala Harris and Julián Castro — have called for Kavanaugh’s impeachment.

But is there any real chance that Kavanaugh could be removed from office? History suggests the answer is: Almost certainly not. But it also suggests that there may be a longer political game afoot in the calls to investigate and impeach Kavanaugh.

Removing any federal official, like a president, requires a majority of the House to impeach and a two-thirds supermajority of the Senate to convict — although the standard in question is whether a judge has maintained “good behavior” rather than, as with a president, whether he or she has committed a “high crime or misdemeanor.” Because of this, it is a mechanism destined to be used rarely once legislators organized themselves in a two-party system.

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Since 1803, only eight judges have been removed after a Senate vote, while seven more have been impeached by the House and not convicted. The only Supreme Court justice to ever be impeached was Samuel Chase, a highly partisan Federalist who was impeached by a Jeffersonian-aligned House in 1805, because Jefferson’s supporters were furious at the flurry of new judgeships created and filled in the lame-duck session after President John Adams lost the 1800 election. (Most of the other judges were repealed by statute.) Still, even in that context — more like Merrick Garland than Mitch McConnell might like to remember — the Jeffersonians in the Senate declined to convict Chase despite having the necessary supermajority.

There is, however, one case in the last century in which a Supreme Court justice might well have been impeached: Abe Fortas, who was nominated to the court in 1965 by President Lyndon Johnson. In 1968, however, when Johnson nominated Fortas to replace Earl Warren as chief justice (who resigned in 1968, hoping to pre-empt the risk of Richard Nixon, the Republican nominee for president, picking his replacement), a coalition of Republicans and conservative Democrats successfully filibustered Fortas over revelations that he had acted as a political operative for the White House and arranged for his former law firm to pay him to teach a class at American University. In 1969, Fortas was compelled to resign from the Supreme Court over financial improprieties (immediately giving Nixon not one but two vacancies to fill); the threat that he would become the first sitting Supreme Court justice impeached and convicted was surely one of the reasons Fortas decided to step down.

Could Kavanaugh be similarly pressured to resign? As with the politics of presidential impeachment, times have changed. Our political elites are much more polarized than they were during the Nixon administration (which is saying something). A situation like Fortas’ — where he resigned for propriety’s sake and gave an opposition president a Supreme Court seat under pressure from some members of his party — is inconceivable today, short of something like conviction for a violent felony.

In this case, too, it’s worth noting that Senate Republicans rammed Kavanaugh through even though, had he been rejected, he would have been replaced by another Trump nominee who would have assuredly had similar credentials and cast similar votes. A Republican Senate that practically just confirmed him after an extremely partisan confirmation hearing is not going to change its mind over a news article that more or less confirmed what they ignored a year ago.

Plus, Trump’s response to the Times article was to defend Kavanaugh and attack the Times, and Republicans in Congress will almost certainly follow his lead.

Perhaps because of the practical impossibility of removing Kavanaugh, even were they to impeach him in the House (and the likelihood that he would, under Trump, be replaced by someone equally unpalatable to liberals), some senior Democrats have thrown cold water on impeaching Kavanugh.

But it is unlikely that the call to impeach him will go away entirely — and it is not clear that it should.

It is true that, if the goal is to remove Kavanaugh from office, calls for impeachment — at least at this juncture — are wasted energy. But as with presidential impeachment, some Democrats might find an investigation worth pursuing, even if it will not plausibly lead to Kavanaugh's being removed by a Republican Senate.

An impeachment inquiry could allow for a full investigation into both the credible charges of sexual misconduct and his murky financial history — and why they were never thoroughly looked into before his confirmation. Republicans' having sabotaged the investigation into Kavanaugh in order to quickly confirm him is another example of how the party’s corruption extends well beyond Trump — something it would benefit Democrats to highlight before the 2020 elections.

And there’s a bigger picture as well. There’s a very strong possibility that, because of the Trump nominations, the Supreme Court will refuse to let the next Democratic government address critical issues like climate change. Drawing attention to an unusually unpopular Supreme Court justice may set the table for drawing attention to an increasingly partisan Supreme Court and the potential need for judicial reform. As a bare five-member majority of the Court (80 percent of which have been appointed by presidents who first obtained office despite losing the popular vote) continues to aggrandize power to itself, Democrats will increasingly consider constitutionally permissible measures like expanding the size of the court. Revealing the raw power politics behind Kavanaugh’s appointment in particular and Republican indifference to his character (or his truthfulness when testifying before them) can be an important part of this case, if it turns out to be necessary.