No, Kavanaugh Cannot Be Removed From Office Without Impeachment

Anti-Kavanaugh left throwing everything at the wall to see what will stick

President Donald Trump shakes hands with US Supreme Court Justice Brett Kavanaugh before delivering the State of the Union / Getty Images
• September 17, 2019 2:50 pm


Liberals are united in their desire to remove Justice Brett Kavanaugh from the Supreme Court. They are also united in the belief they can do so without using existing impeachment protocols. But they are now divided into three different camps over how best to achieve that goal, giving off the distinct impression that the anti-Kavanaugh left is just throwing everything at the wall and seeing what will stick.

New York University law professor Christopher Sprigman argued that Congress should simply pass a bill removing Kavanaugh. Congress also has the right to strip federal courts of jurisdiction, you see, so all you have to do is ban them from reviewing the bill, and voilà, no more Kavanaugh.

Even if this were a correct reading of the law, it is insanely dangerous. Sprigman argues there is nothing stopping Congress from passing blatantly unconstitutional laws and exempting them from judicial review entirely. The power he would wield to remove Kavanaugh without review could be used to jail NYU law professors without review, to declare Trump president for life without review, to abolish the court system entirely without review, etc.

Needless to say, the Founders did not accidentally put a dictator cheat code into the Constitution. Sprigman cites the Exceptions Clause, but that clause states Congress has the power to deny the Supreme Court from hearing the appeal of a case, not the power to prevent all federal courts from hearing the case in the first place. Congress does enjoy the Article I power to strip jurisdiction from lower courts, but that's surely limited by the Constitution's grant that "the judicial power shall extend to all Cases… arising under this Constitution." Some court somewhere at some point has to have the power of judicial review, and Congress cannot prevent that.

Then you have former DNC chair Howard Dean's argument that, "actually the Supreme Court is NOT for life. The Constitution says the federal bench is for life. Which means Supreme Court Justices can be rotated off onto district courts." This appears to be the same argument Bernie Sanders made during a Democratic debate, when he claimed "constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court."

What the Constitution actually says is, "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour." The rather dubious conclusion Dean and Sanders draw is the Constitution does not really make a distinction between the supreme and inferior courts when it comes to whether a judge is in "office," despite the difference in pay, power, and prestige.

But judges are not appointed to "offices," they are appointed to an office. Brett Kavanaugh was not sworn into the judiciary in the abstract. He was already a federal judge who was then nominated to the Supreme Court, confirmed to the Supreme Court, and sworn in to the Supreme Court. Congress has passed laws in the past requiring justices "ride the circuit" and serve on lower courts, but only in addition to and not in lieu of their original duties.

Newly minted Vox writer Ian Millhiser actually presents the most persuasive case in "How to remove Brett Kavanaugh without impeaching him," partly because he writes in long-form instead of tweets, and partly because he adopts an argument from a 2006 Yale Law Journal article written by two originalist law professors. Saikrishna Prakash and Steven D. Smith argued at the time of adoption of the Constitution, judges who served for life during "good behavior" were assumed to automatically forfeit their offices upon a finding of impropriety separate from impeachment. Therefore, the clause in the Constitution claiming judges serve "during good behaviour" actually provides a separate avenue for removing judges based only on a lower court's finding of a crime.

"Congress could, in other words, pass a law… which disqualifies federal judges who've been convicted of certain crimes that call into doubt their integrity as a judge," Millhiser argues. "And if Congress decides to go this route, the two professors' paper will give the Justice Department the arguments it needs to defend such a law in court."

Let's be overly generous and assume the professors are correct that for 200 years every scholar in America has missed the meaning of a clause that grants Congress a power no Founding Father ever explicitly claimed it had. Millhiser's more particular argument, that this could be used to unseat Kavanaugh, presumes a conviction that is unlikely to come.

Even many liberals allowed that the accusations that arose during Kavanaugh's confirmation battle would fail to meet the burden of proof in a court of law. They instead argued judicial nominees should be subject to lower standards of proof. The evidence he committed perjury is likewise incredibly weak compared to the high bar required in a true court of law.

Moreover, the Constitution bans ex post facto enforcement. If Kavanaugh's alleged conduct were not punishable with an automatic removal from office when he committed it, Congress cannot inflict that punishment after the fact. The only way Kavanaugh can be punished is therefore under existing statutes and laws, not hypothetical future ones. Kavanaugh could also persuasively argue the Constitution provides that judges serve "during" good behavior, but his alleged misbehavior predates his term in his office, and a statute removing him on that basis is unconstitutional.

All these arcane and implausible scenarios mirror a trend dating back to the 2016 election in which liberal commentators and even law professors promised there were secret and airtight legal loopholes to install Hillary Clinton as president. There weren't. Wishing away political reality can be a tempting prospect, but in the end, you're still just denying reality.