Legal Analysis

Even if Kavanaugh Is Confirmed, Here’s How He Could Be Removed

WASHINGTON, DC - SEPTEMBER 05: Supreme Court Nominee Brett Kavanaugh testifies during the second day of his Supreme Court confirmation hearing on Capitol Hill September 5, 2018 in Washington, DC. Kavanaugh was nominated by President Donald Trump to fill the vacancy on the court left by retiring Associate Justice Anthony Kennedy.

Time will tell whether Supreme Court nominee Brett Kavanaugh will be confirmed after Thursday’s hearing which focuses on sexual assault allegations against him. Christine Blasey Ford described to the Senate Judiciary Committee how he allegedly assaulted her at a gathering in the early 1980s. Thursday afternoon, Kavanaugh will have a chance to tell his side of the story, and it will be up to the Committee members to vote on whether to move forward with his confirmation. That being said, even if Kavanaugh is confirmed to the Supreme Court, he may not be totally out of the woods.

Like a president or any other federal official, a Supreme Court justice can be impeached under the Constitution. As it says in Article II, Section 4:

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Normally, impeachment is discussed as a remedy for offenses committed while in office, but there is precedent for removing a judge for acts that took place prior to confirmation. That 2010 situation, involving Judge Thomas Porteous–who was accused of corruption, taking bribes, and perjury–is relevant here. In the past, the House had declared that impeachment was meant solely for acts committed while in office, but Porteous’ actions included a cover-up during his confirmation process that could have made it easier for him to take office in the first place.

That sounds a lot like Kavanaugh’s situation. While his alleged acts on their own may not be enough to warrant impeachment because they allegedly took place decades ago, his repeated denials, including denials to Senate staff under penalty of felony charges, and his upcoming sworn statements before the Committee could be used against him.

In order to impeach, the House of Representatives needs a majority vote against the official. Should Democrats take control of the House of Representatives after November’s midterm elections, there would be a good chance that they could pull this off. That being said, it is highly unlikely that impeachment would then result in removal from office.

While impeachment, which is basically equivalent to filing charges, only requires a majority of the House, the case then goes before the Senate, which would need a two-thirds majority to vote the official out of office. Even if Democrats gain a majority of the Senate in November, there are not enough current Republican seats up for reelection to allow Democrats to have control of two thirds. They would have to convince quite a few Republicans to join their side and vote to remove Kavanaugh, or hope to gain more seats in 2020.

So far, most Republicans have remained steadfast in their support of Kavanaugh. It remains to be seen whether that will continue to be the case after Thursday’s hearing.

[Image via Zach Gibson/Getty Images]

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