To remove Kavanaugh via impeachment , two-thirds of the senators present for such a vote would need to vote against Kavanaugh. And the Senate is malapportioned in ways that favor Republicans — in the current Senate, Democrats represent about 15 million more people , but Republicans control 53 percent of the seats. Barring a historic political realignment, in other words, there is virtually no chance that there will ever be 67 senators who will vote to remove Kavanaugh.
Misbehavior, they argue, was understood broadly by English courts and by early Americans. For this reason, Prakash and Smith claim that it is a mistake to read the Constitution as preventing a judge from being removed from office except by impeachment.
Prakash and Smith conclude by suggesting acts of Congress that would allow judges to be removed without impeachment, including a law automatically removing judges upon their conviction for certain offenses, one creating a separate judicial process to remove judges accused of misconduct by the Justice Department, and another empowering an internal review board whereby federal judges police their own. Indeed, in the same year that Prakash and Smith published their Yale Law Journal piece, the Journal also published a response by Northwestern law professor Martin Redish, which takes issue with their definition of good behavior.
Such a process is hardly unheard of in the United States. A different critique of Prakash and Smith — and one that I personally find persuasive, at least in the abstract — is that stability in the law is important. Whatever English courts may have done in the 17th century, or whatever Congress may have done in , the seemingly unbroken practice of two centuries of American history is that judges may only be removed by impeachment.
Does it really make sense to toss out such a settled norm because two clever law professors dug up some centuries-old legal documents? In an letter , James Madison explained why, as president, he did not veto legislation chartering the Second Bank of the United States after arguing that the first such bank was unconstitutional.
But the era when public officials stay their hands simply because longstanding norms advise them to do so appears to have passed. Not too long ago, there was a norm providing that Supreme Court nominees receive confirmation hearings , or that Congress should not use the debt ceiling to extract policy concessions from the president, or that filibusters should be used only rarely. The question for Democrats, in other words, is not whether norms of governance must be obeyed in the United States — clearly they are not.
This is not the first time partisan disagreement over a court decision has led to impeachment threats. But if the legislators follow through, they would toss aside a centuries-old understanding that if the impeachment power is used to punish judges for their rulings, it undermines the vital independence of our judicial branch. Impeachment is a process by which the political branches of government — usually the legislature — can remove judges from office.
Because the impeachment power lies primarily in the hands of politicians, it is at times threatened for partisan reasons, but the impeachment and removal of judges is in fact rare and usually limited to grave ethical or criminal misconduct such as perjury, fraud, or conflicts of interest. Federal and state constitutions provide different mechanisms for impeachment of judges, but impeachment is generally a two-step process.
With respect to federal judges, under Article I of the United States Constitution, the House of Representatives has the power to impeach, and the Senate the power to hold a trial to determine whether removal is appropriate.
The House can impeach a judge with a simple majority vote. However, a judge may only be removed from office following a trial and a vote to convict by a two-thirds majority of the Senate. And in others the number of votes required to impeach or convict differs. Impeachment of judges is rare, and removal is rarer still.
With respect to federal judges, since , the House of Representatives has impeached only 15 judges — an average of one every 14 years — and only 8 of those impeachments were followed by convictions in the Senate. Impeachment in the states has been similarly rare. A review of studies by the American Judicature Society and the National Center for State Courts, as well as news articles, reveals just two instances of a state judge being impeached in the last 25 years.
In , Pennsylvania impeached and removed the first and only judge in its history, Supreme Court Justice Rolf Larsen, and in New Hampshire impeached, but the state senate declined to remove, Supreme Court Justice David Brock. There are more instances, however, of legislators unsuccessfully calling for the impeachment of a judge.
However, the impeachment power has historically been limited to cases of serious ethical or criminal misconduct.
Nadler has previously asked the National Archives to produce documents related to Kavanaugh's time in the George W. Bush White House. Read More. The part of the Constitution that establishes the judicial system, Article III, leaves broad room for interpretation about how judges should behave in their roles.
The Constitution provides no further guidance about how judges should behave in office. Why Brett Kavanaugh isn't going anywhere.
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