If further evidence of a schism between the woke base of the
Democratic Party and its leadership class, the move to impeach Justice Brett
Kavanaugh should provide it. A fresh allegation of sexual impropriety over the
weekend stoked the fires of impeachment among activists but realists quickly dismiss
allegation is from a third party who said he saw Kavanaugh’s friends push
his penis into a female Yale student’s hands during a drunken party. Max Stier,
the man who claimed to witness the incident, has not come forward publicly and
the New York Times story on the incident was corrected to point out that the woman at the center
of the allegation does not remember the incident and declined to be
interviewed. There also seem to be no other corroborating witnesses or
In summary, the allegation is like the other allegations against
Kavanaugh in that none of them can be supported by objective evidence. If this
information had been brought forward in the confirmation hearings, it would not
have changed anything and it is not sufficient to justify impeachment. None of
this matters to the chattering class, but the people who would have to carry
out the impeachment know better.
“Get real,” said Senate Minority Whip Dick Durbin (D-Ill.)
“We’ve got to get beyond this ‘impeachment is the answer to
every problem.’ It’s not realistic,” Durbin told Politico.
“If that’s how we are identified in Congress, as the impeachment Congress, we
run the risk that people will feel we’re ignoring the issues that mean a lot to
them as families.”
Squad member Rep. Ayanna Pressley (D-Mass.) has said that she will introduce an impeachment resolution that would allow House Judiciary Committee to investigate whether Kavanaugh should be impeached, arguing, “Kavanaugh’s confirmation process set a dangerous precedent. We must demand justice for survivors and hold Kavanaugh accountable for his actions.”
Let me help her answer that question. He shouldn’t.
Per the Constitution, “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.” If we look back to the original intent of the phrase “high
crimes and misdemeanors,” it is much more broad than the criminal definition
often assumed today. As the Constitutional
Rights Foundation points out:
The convention adopted “high crimes and misdemeanors” with little discussion. Most of the framers knew the phrase well. Since 1386, the English parliament had used “high crimes and misdemeanors” as one of the grounds to impeach officials of the crown. Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.
There is no evidence that any of these apply to Brett Kavanaugh,
especially since he took his seat on the Supreme Court last year. This is key
because the House
Judiciary Committee determined in 1873 that impeachment “should only be
applied to high crimes and misdemeanors committed while in office and which
alone affect the officer in discharge of his duties.”
At this point, there is far more cause to impeach Donald
Trump than Brett Kavanaugh. The Mueller report’s revelations of Trump’s
attempts to interfere with an ongoing investigation and the president’s use of national
emergencies to circumvent the will of the people expressed through Congress
would arguably fall under the abuse of office category of “high crimes and misdemeanors.”
The ultimate problem with impeaching both Kavanaugh and
Trump is the Republican Congress. As Sen. Patrick Leahy (D-Vt.) pointed out, “Mitch
McConnell would block any impeachment. So that’s a moot point.”
Impeachment of either man would be pointless because Democrats
are not even close to the required two-thirds of members present in the Senate.
An impeachment vote in the House would only serve to fortify the Republican
base for the upcoming election.
An article in Vox that judges can be removed without impeachment faces similar problems. The
argument, based on a paper that predates the Kavanaugh controversy by law
professors Saikrishna Prakash and Steven D. Smith, is that judges who fail to
exhibit “good behavior” can be removed by the “judicial process.”
Again, the problem is that Kavanaugh has not committed “misbehavior”
while in office. Further, the Department of Justice and Supreme Court are
controlled by Republicans and constitutionalists respectively. Neither is
likely to allow a court proceeding that would remove Kavanaugh.
There is a good argument that the bar for impeachment is too
high, especially given our stalemated Congress and current tribal partisan
nature, but the procedure is laid out by the Constitution and will not be
changed any time soon, again thanks to our stalemated Congress. The
rank-and-file members of Congress and presidential candidates who are pushing
impeachment of the two men are either strategically challenged or are doing so
to gain publicity for themselves at the expense of their party.