Could Brett Kavanaugh really be impeached?

Supreme Court Associate Justice Brett M. Kavanaugh waits for the arrival of Former president George ...
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In the early days of the United States, the House of Representatives voted to impeach Supreme Court Justice Samuel Chase. A staunch supporter of the Federalist Party, Chase aggravated President Thomas Jefferson and his fellow Republicans with his perceived partisanship from the bench.

But even though the Jeffersonians enjoyed a substantial Senate majority, they lacked the votes required to remove Chase. On March 1, 1805, the Senate acquitted Chase on all counts, and he served on the bench for six more years until his death in 1811.

Thus ended the first and only impeachment of a sitting Supreme Court justice of the United States. It was a failed effort that Ryan Owens, a Court expert and professor of political science at the University of Wisconsin, said set a precedent that has “stuck for a long time” — namely, that “you could impeach somebody for things that were illegal, but you couldn’t impeach them for things that were in a twilight area in between illegality and bad policy.”

Some 200 years later, several leading Democrats hope to change that. In light of a new allegation of sexual misconduct against Supreme Court Justice Brett Kavanaugh published by The New York Times over the weekend, presidential candidates including Massachusetts Sen. Elizabeth Warren, California Sen. Kamala Harris, and former Housing Secretary Julián Castro have called for Kavanaugh’s removal.

The allegation came via an excerpt from a forthcoming book by veteran Times reporters Robin Pogrebin and Kate Kelly, who spent 10 months reporting on the tales of sexual misconduct by Kavanaugh that became public last year and roiled his Senate confirmation hearing. The new excerpt discusses the previous allegations — one made by a high school classmate and another by a fellow student at Yale — before revealing a previously unreported incident, in which a former Yale classmate of Kavanaugh’s named Max Stier claims to have witnessed a “drunken dorm party, where friends [of Kavanaugh] pushed his penis into the hands of a female student.”

The event described by Stier closely resembles the allegation put forth by Deborah Ramirez, Kavanaugh’s Yale classmate, who recalled in The New Yorker an incident when Kavanaugh thrust his penis into her face at a dorm party. For his part, Stier has not spoken publicly about the incident, but per Pogrebin and Kelly he brought the story to the FBI and as well as prominent Democrats in the Senate last year.

“Brett Kavanaugh lied to the U.S. Senate and most importantly to the American people,” wrote Harris on Twitter after Stier’s story became public. “He must be impeached.” Warren called the new allegation “disturbing” while also calling for Kavanaugh’s impeachment.

Vice President Joe Biden, however — the frontrunner in the Democratic primary — stopped short of demanding impeachment. Instead, he wrote that “we must follow the evidence to wherever it leads. Doing this the right way is critically important in getting the truth and restoring the American people’s faith in their government.”

Biden’s hedging reflects the complicated political calculus of relitigating the Kavanaugh allegations, said Democratic strategist Patrick Dorton, as well as the reality that impeachment is extremely rare. The process “is a big deal, and Biden is not dumb,” said Dorton, who served in the White House under President Bill Clinton, one of just two presidents to have been impeached. “Pandering to elements of the liberal base by hysterically calling for impeachment just looks irresponsible for any candidate.”

Complicating matters, the Times revealed Stier’s allegation in a baffling way that has provided cover for Kavanaugh’s defenders. The version of the story that first appeared online Sunday night failed to mention that friends of the woman at the center of the Stier’s allegation say she doesn’t recall the incident. The caveat is included in the book the the Times excerpted from, and editors later added that information in a correction as well as within the article text itself.

The misstep was quickly seized on by Kavanaugh supporters. ”Given the NYT ‘correction,’ tweeted Republican Sen. Ted Cruz, who voted to confirm Kavanaugh, “what are the odds that any of the 2020 Dem presidentials who relied on the NYT story to call for impeaching Kavanaugh … will modify or retract their own partisan position? ZERO.” President Donald Trump meanwhile wrote on Twitter that Kavanaugh "should start suing people for libel, or the Justice Department should come to his rescue."

Despite the correction, the underlying framework of Stier’s story was enough to ethically justify its publication, said Kelly McBride, a senior vice president at the Poynter Institute and chair of the Craig Newmark Center for Ethics and Leadership. The excerpt noted that while Stier hasn’t discussed the story publicly, Pogrebin and Kelly were able to confirm with two officials with whom Stier has been in contact.

“There are many cases when sexual assault allegations are reported that a victim does not recall. Usually this happens because of third-party reporting,” McBride said. “In this case, the New York Times has two unnamed sources who verify that an eyewitness to the assault made the report. … Since they didn't identify the potential victim or name her, the original version did not seem deceptive or misleading to me.”

In the short term, the odds of Kavanaugh being removed from the Supreme Court are slim. Democrats don’t have a simple majority in the Senate, let alone the super-majority of 66 votes needed for his removal. There’s not even a consensus among leading Democrats that impeachment is the correct path forward. Asked on Monday about impeaching Kavanaugh, New York Rep. Jerry Nadler, the Democratic leader of the House Judiciary Committee, said, "We have our hands full with impeaching the president right now.”

Owens, the Supreme Court expert, thinks that successful impeachment of Kavanaugh is impossible in the current environment. “There’s no way that they’re going to get enough Senate Republicans to join on,” he said.

Still, the allegations will likely continue to hang over Kavanaugh’s tenure on the bench, especially if further reporting provides more details about the new allegation. And if Democrats win a Senate majority in 2020, the judge — already a political lightning rod — could eventually join Samuel Chase in making dubious history.