Sep 29, 2018

How to impeach a Supreme Court justice

Anti-Kavanaugh protesters outside the Supreme Court

Anti-Kavanaugh protesters outside the Supreme Court. Photo: Drew Angerer/Getty Images

Some Democrats are already rumbling about trying to remove Brett Kavanaugh from the Supreme Court, if he’s confirmed. That is not at all realistic.

The big picture: Supreme Court justices can be impeached. But if there aren’t 50 votes to keep Kavanaugh off the court now, it’s hard to imagine that there would be 67 votes to kick him off later, even with overwhelming Democratic victories across multiple election cycles.

How it works: Impeaching a judge works just like impeaching a president.

  • The House draws up articles of impeachment, which are essentially charges of misconduct. If a majority of the House votes to impeach, the process then moves on to the Senate for a trial.
  • It takes a two-thirds vote of the Senate to find the person guilty. If that happens, they're automatically removed from office.

By the numbers: Only one Supreme Court justice has ever been impeached: Samuel Chase, in 1804. He was acquitted in the Senate.

  • A total of 15 judges, including Chase, have been impeached. Eight of them were found guilty.

The standard is vague. The Constitution says officials can be impeached for “high crimes and misdemeanors,” but doesn’t define that term. So, it largely means whatever the House and Senate say it means.

  • Historically, judges have been impeached for a variety of reasons — from showing up to work drunk, to joining the Confederacy, to accepting bribes.
  • But, according to a 2015 report from the Congressional Research Service, no one has ever been impeached “solely on the basis of conduct occurring before he began his tenure in the office held at the time of the impeachment investigation” — as would be the case if Kavanaugh were impeached over anything that has already happened, including his confirmation hearing.

The bottom line: Neither party has had a two-thirds majority in the Senate since 1967. Removing someone from office through the impeachment process takes substantial bipartisan support. And it’s hard to envision any Republicans agreeing to remove Kavanaugh.

If he’s confirmed now, his job will be safe.

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