U.S. Supreme Court Justice Brett Kavanaugh knows a thing or two about impeachment.
After graduating from Yale College as a “cum laude” undergraduate in 1987 and from Yale Laws School in 1990, Justice Kavanaugh began his legal career as a law clerk for three federal judges, including former Supreme Court Justice Anthony Kennedy.
Three years out of law school and not yet 30 years of age, Kavanaugh was recruited by Ken Starr who had been tagged to take over the Office of Independent Counsel’s investigation into some of the financial dealings of then-President Bill Clinton. Starr promptly recruited Kavanaugh to be part of what the independent counsel’s office referred to as its “brain trust.” Kavanaugh remained part of that brain trust for more than eight years. The end result: President Clinton was impeachment by the U.S. House of Representatives and then acquitted by the U.S. Senate.
In 2001, Brett Kavanaugh joined the administration of newly elected President George W. Bush as Associate Counsel for the Executive Branch. In 2003, he moved up to be a special assistant to the president. Bush rewarded Kavanaugh for his administration services in 2006 with an appointment to the United States Court of Appeals for the District of Columbia—an appointment easily confirmed by the U.S. Senate.
History of Partisan Advancement
Following the June 2018 retirement of Justice Kennedy from the Supreme Court, President Trump nominated Kavanaugh twelve days later to replace the retiring justice. It appeared it would be a routine confirmation process. Kavanaugh met with all the key Republican Senators who held his confirmation in their hands.
The appeals court judge’s confirmation hearing before the Senate Judiciary began on September 4, 2018. And it was then that the proverbial stuff hit the fan. On September 12th media reports circulated that Sen. Diane Feinstein (D-CA.) had a letter in her possession which contained allegations of sexual misconduct by Kavanaugh. The allegations were being made by Christine Blasey Ford, a California psychologist who attended Yale with Kavanaugh and who alleged the judge had sexually assaulted her there.
The Kavanaugh confirmation process quickly descended into one of the most, if not the most, politicized and socially divisive processes in modern times. The nation, particularly its judicial system, convulsed as ugly, vicious charges and countercharges were leveled by Republican and Democratic lawmakers.
Allegations of Sexual Misconduct, Assault
Before the Blasey Ford allegations could be factually resolved, media reports sprang up about another woman named Deborah Ramirez who came forward to accuse Kavanaugh of sexual misconduct with her during their freshmen year at Yale. This allegation was never fully investigated by the FBI or the Judiciary Committee.
By a vote of 50-48, the U.S. Senate confirmed Brett Kavanaugh to the Supreme Court on October 6, 2018.
A recent book, The Education of Brett Kavanaugh: An Investigation, written by New York Times reporters Robin Pogrebin and Kate Kelly, contains significant information that lends credibility and authenticity to the Ramirez sexual misconduct allegations.
To the dismay of the book’s authors, the media coverage of their book has triggered calls for the impeachment of Justice Kavanaugh.
Is Impeachment Available for Pre-Confirmation Misconduct
The basic question in the Kavanaugh case is whether pre-confirmation misconduct can be used to impeach a federal judge?
There have only been fifteen federal judges, including one Supreme Justice, who have been impeached in this nation’s history. All these judges were impeached for either personal misconduct or criminal conduct they engaged in while they were on the bench. No judge or justice has ever been impeached for misconduct that occurred before they were confirmed as judges to the federal bench.
The same is true for state court judges. Only two state court judges have been impeached over the past 25 years.
Section I of Article III of the U.S. Constitution provides that all federal judges are appointed for life term and must serve “during good behavior.” Section 4 of Article II of the Constitution provides for the impeachment of the President, Vice President, and other Civil Officers for treason, bribery and other high crimes and misdemeanors. Federal judges are akin to Civil Officers.
Thus impeachment is a constitutional tool that allows for judges to be removed from the federal bench for one reason: they have not served with “good behavior.”
There has been only one federal judge impeached by the U.S. House of Representatives for sexual misconduct while sitting on the bench: Judge Samuel B. Kent, U.S. District Court for the Southern District of Texas. Kent was impeached on June 9, 2009 and resigned from office on June 30, 2009. The House voted not to pursue further articles of impeachment after Kent’s resignation.
Impeachment Versus Removal
There are no allegations that Justice Kavanaugh has engaged in conduct while sitting on the Supreme Court that would fall outside the parameters of “good behavior.” In a nutshell, Justice Kavanaugh has not engaged in any impeachable conduct while serving on the nation’s highest court.
However, it should be noted that in 2006 two law professors—University of Virginia Professor Saikrishna Prakash and Steven D. Smith—published a paper in the Yale Law Journal titled “How Remove a Federal Judge.” The professors pointed out that the requirement that federal judges must serve their term “during good behavior” is largely misunderstood and should be viewed in a more liberal context.
Writing in the September 16, 2019 edition of Vox News, Ian Millhiser used the professors’ removal logic to draw these conclusions:
“The thrust of Prakash and Smith’s argument is that an official who is appointed during ‘good behavior’” may keep their office indefinitely, but that an official who misbehaves may be removed through an ordinary court proceeding.
“Misbehavior, they argue, was understood broadly by English courts and by early Americans. It can include ‘conviction for such an offense as would make the convicted person unfit to hold a public office,’ but also may include much lesser offenses. The two professors cite the eminent 17th-century jurist Sir Edward Coke for the proposition that misbehavior may also include ‘abuse of office, nonuse of office, and refusal to exercise an office.’
“For this reason, Prakash and Smith claim that it is a mistake to read the Constitution as preventing a judge from being removed from office except by impeachment. The Constitution, they note, only permits impeachment of civil officers for ‘treason, bribery, or other high crimes and misdemeanors.’ But the term ‘good behavior’ was understood to allow an official to be removed for much lesser offenses. Therefore, the Constitution’s invocation of this term suggests that federal judges may also be removed through a process other than impeachment.
“To prove their claim that the term ‘good behavior’ allows officials to be removed in a judicial proceeding, the professors cite a raft of 17th- and 18th-century English cases that support their argument. They quote early state constitutions suggesting that service during ‘good behavior’ can be concluded by a court proceeding — the 1776 Maryland Constitution, for example, provides that judges ‘shall hold their commissions during good behaviour, removable only for misbehaviour, on conviction in a Court of law.’”
Millhiser correctly notes that the removal logic offered by Professors Prakash and Smith was not widely accepted in the legal community.
Given the most literal and liberal construction possible, the Prakash/Smith removal logic cannot escape the hardnose constitutional reality that impeachment, or any other combination of removal processes, must be undertaken based on alleged misconduct committed while the judge is serving on the bench. Good behavior thus is a firm bar to any sort of removal process.
There are even serious questions about whether a judge convicted of criminal conduct that occurred prior to his or her confirmation to the federal bench could be removed from office based on that conviction.
This was evidenced by the fact that Judge Kent was allowed to keep his $169,300 annual salary following his criminal convictions for misconduct he engaged in while on the bench. Kent was sent to a federal penal facility in 2009 and released in 2011. He kept his salary while in prison, and presumably continues to receive it to this day
The bottom line is this: Justice Kavanaugh cannot, and will not, be impeached for any alleged sexual misconduct he may have engaged in prior to his confirmation to the U.S Supreme Court.
There remains, however, the question of whether the Justice can be impeached for making false statements or perjury during the confirmation itself.