What Would It Take for Brett Kavanaugh to Be Impeached?

Democrats could investigate newly confirmed Supreme Court Justice Brett Kavanaugh if they regain control of the House in November—but the threshold for impeachment is high.
October 9, 2018, 7:35pm

Supreme Court Justice Brett Kavanaugh's Monday night swearing-in may not be the end of the fight Democrats have levied against him, many of whom have already begun to consider the possibilities for removing Kavanaugh from the bench.

The threshold to impeach a Supreme Court justice is high, but whether or not it's possible for Democrats to impeach Kavanaugh is almost beside the point for those who see the ongoing Supreme Court fight as a way to drive voter enthusiasm.


New polling from CNN shows that 51 percent of voters opposed Kavanaugh's confirmation, and with Republicans already steeling themselves for substantial losses in the midterm elections, those numbers bode well for Democrats.

"Republicans just forced through a lifetime promotion to the highest court in America for the least popular nominee in history in order to protect the least popular president in history," Jesse Ferguson, a former deputy executive director at the Democratic Congressional Campaign Committee, told Broadly. "Republicans who think this was a political win for the GOP must also think running into an even larger iceberg would have helped plug the hole in the side of the Titanic."

Rumblings to the effect of investigating Kavanaugh have originated from the House, whose purview it is to set the process of impeaching a sitting justice in motion.

On Friday, ahead of the Senate vote to confirm Kavanaugh, New York Representative Jerry Nadler—who is next in line for chairman of the House Judiciary Committee as the current ranking Democrat—announced plans to investigate Kavanaugh for sexual misconduct and perjury, should Democrats regain control of the House in November.

“It is not something we are eager to do,” Nadler told The New York Times. “But the Senate having failed to do its proper constitutionally mandated job of advise and consent, we are going to have to do something to provide a check and balance, to protect the rule of law and to protect the legitimacy of one of our most important institutions.”


And on Monday, House Minority Leader Nancy Pelosi filed a Freedom of Information Act request with the FBI, requesting that the bureau release all documents related to agents' investigation into Kavanaugh and the allegations against him, including the full text of the report—of which only one copy was made available, and only to senators—interview transcripts, messages from the White House, and any internal communications.

"We must not agonize, we must organize," Pelosi stated in a press release. "With the majority, we will strengthen the Congress to the vision of our Founders: Article I, the first branch of government, a check and balance on the executive and judiciary."

Neither Nadler nor Pelosi—not even some of Kavanaugh's most vocal opponents, like Hawaii Senator Mazie Hirono—have explicitly mentioned the subject of impeachment. But it's something on the minds of the roughly 160,000 people who have signed a petition calling to impeach the newly minted Supreme Court justice.

As is the case with impeaching and removing a president, impeaching a Supreme Court justice requires the House to rustle up support from a majority of representatives to move the indictment along to their colleagues in the Senate. Impeaching and removing a justice then requires a two-thirds supermajority of senators to vote yes on it.

There is a precedent for impeaching a Supreme Court justice, but it dates back to the early 1800s. Samuel Chase faced impeachment in 1804, when President Thomas Jefferson launched a campaign to eliminate political opponents from the Supreme Court bench, targeting Chase for his Federalist beliefs.

The House brought articles of impeachment against Chase, accusing him of bias and general bad behavior, but because those accusations didn't meet the standard of "high crimes and misdemeanors" outlined in the Constitution, the Senate didn't vote to remove him.

This stipulation in the Constitution would make it difficult to oust Kavanaugh from the Supreme Court as well. Even if the Democrats took control of the House in November—and managed to persuade some Republicans to turn on Kavanaugh, a difficult task in itself—it's unclear whether lawmakers would place the sexual assault allegations against Kavanaugh in the "high crimes and misdemeanors" category.

Still, the allegations certainly count for a lot in the eyes of voters, some say.

"If Kavanaugh gets confirmed, there will be two justices on the Supreme Court with big asterisks by their names—Kavanaugh and Clarence Thomas," Nan Aron, the president of Alliance for Justice, the liberal advocacy group that led opposition to Supreme Court Justice Clarence Thomas in 1991, told Broadly last month. "Women, together with their male supporters, will go to the polls in a few weeks, and their votes will be a clear expression of their anger."