After last week’s midterm elections, House Minority Leader Nancy Pelosi declared that Democrats in the next Congress will prioritize issues including ethics reform, infrastructure and healthcare. Some committee leaders, however, may have other plans.
In a report from The Federalist, Democratic New York Rep. Jerrold Nadler — incoming leader of the House Judiciary Committee — was alleged to have discussed plans to investigate and possibly impeach Supreme Court Justice Brett Kavanaugh. The Senate recently confirmed Justice Kavanaugh following a series of sexual assault allegations and polarized confirmation hearings.
On Sunday, Rep. Nadler denied such plans. One hopes this denial is sincere. After all, not only is the attempted impeachment of a sitting Supreme Court justice foolhardy, it would also further political attacks on the judiciary and contribute to the continued deterioration of our political norms.
The impeachment and removal of a federal judge is deliberately difficult and designed to occur only when there is overwhelming support for it within the political branches. The Constitution provides that federal judges “shall hold their offices during good behaviour,” and impeachment must include a finding “of treason, bribery, or other high crimes and misdemeanors.” Removing a judge is a two-step process: A simple majority of the House must vote to impeach, and a two-thirds majority of the Senate must vote to convict and remove the judge from office.
Because of this high burden, judicial impeachment is rare, occurring only fifteen times in our nation’s history. And only one Supreme Court justice — Samuel Chase — has been impeached, which occurred back in 1804. The Senate, though, refused to convict Chase. The attempted impeachment of Justice Kavanaugh would be similarly futile. Even if the House voted for impeachment, barring concrete evidence of severe misconduct, the Republican-controlled Senate would never consider removing him from office.
A partisan impeachment battle would also further political attacks on the judiciary’s legitimacy. The growing trend of attacking the judiciary did not begin with whispers of impeaching Justice Kavanaugh; President Donald Trump, for one, has lodged a series of political attacks against the judiciary. In just two years, Trump has alleged that one judge was biased against him due to the judge’s “Mexican heritage,” questioned another’s professional ability by referring to him as a “so-called judge,” and decried the entire judicial system as “broken and unfair.” Likewise, many conservative state legislators around the country have threatened to impeach judges and even attempted to drastically reduce their independence through legislation.
Democrats have been right to criticize these acts. With each politically motivated attack, the judiciary’s status as an independent branch of the government weakens and questions concerning its legitimacy become disturbingly more valid.
The 116th Congress’ hunger to reverse the president’s actions is undeniable, and pursuing Justice Kavanaugh’s impeachment would play to this narrative. But the partisan impeachment of a Supreme Court justice would set off an unnecessary firebomb in an era already replete with political explosions, one that would burn valuable political capital on an initiative that the public does not support. In a recent Rasmussen poll, a majority of Americans oppose a congressional attempt to impeach Justice Kavanaugh. Only 30 percent support such a drastic move. The polling makes sense, given the people’s desire — as confirmed during the recent election — for a firm, steadfast defense of America’s institutions, the rule of law and political norms. Impeaching a Supreme Court justice would undermine each of these principles.
Partisan impeachment proceedings would put one more crack in the integrity of America’s institutions and, with the current president and congressional majorities, would be fruitless in changing the current makeup of the court. Fortunately, preserving the independence of the judicial system by avoiding the temptation of impeachment is a step the 116th Congress appears committed to, at least for now. In an interview, Pelosi noted that impeachment should be “bipartisan” and is “not something one party does.”
As Congress switches hands in January, Democrats must avoid the political temptations of retribution and instead remember why voters brought them back to power.
Anthony Marcum (@AnthonyWMarcum) is a research associate for the Governance Project at the nonprofit R Street Institute. Aubrey Neal (@AubsNeal) is federal affairs manager of R Street’s American Institutions Network.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.