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On Judicial Impeachment

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I have a piece for NBC News about how federal judges are virtually never removed from office under the impeachment mechanism:

Since 1803, only eight judges have been removed after a Senate vote, while seven more have been impeached by the House and not convicted. The only Supreme Court justice to ever be impeached was Samuel Chase, a highly partisan Federalist who was impeached by a Jeffersonian-aligned House in 1805, because Jefferson’s supporters were furious at the flurry of new judgeships created and filled in the lame-duck session after President John Adams lost the 1800 election. (Most of the other judges were repealed by statute.) Still, even in that context — more like Merrick Garland than Mitch McConnell might like to remember — the Jeffersonians in the Senate declined to convict Chase despite having the necessary supermajority.

There is, however, one case in the last century in which a Supreme Court justice might well have been impeached: Abe Fortas, who was nominated to the court in 1965 by President Lyndon Johnson. In 1968, however, when Johnson nominated Fortas to replace Earl Warren as chief justice (who resigned in 1968, hoping to pre-empt the risk of Richard Nixon, the Republican nominee for president, picking his replacement), a coalition of Republicans and conservative Democrats successfully filibustered Fortas over revelations that he had acted as a political operative for the White House and arranged for his former law firm to pay him to teach a class at American University. In 1969, Fortas was compelled to resign from the Supreme Court over financial improprieties (immediately giving Nixon not one but two vacancies to fill); the threat that he would become the first sitting Supreme Court justice impeached and convicted was surely one of the reasons Fortas decided to step down.

Could Kavanaugh be similarly pressured to resign? As with the politics of presidential impeachment, times have changed. Our political elites are much more polarized than they were during the Nixon administration (which is saying something). A situation like Fortas’ — where he resigned for propriety’s sake and gave an opposition president a Supreme Court seat under pressure from some members of his party — is inconceivable today, short of something like conviction for a violent felony.

In this case, too, it’s worth noting that Senate Republicans rammed Kavanaugh through even though, had he been rejected, he would have been replaced by another Trump nominee who would have assuredly had similar credentials and cast similar votes. A Republican Senate that practically just confirmed him after an extremely partisan confirmation hearing is not going to change its mind over a news article that more or less confirmed what they ignored a year ago.

Plus, Trump’s response to the Times article was to defend Kavanaugh and attack the Times, and Republicans in Congress will almost certainly follow his lead.

Fortas resigning and handing his seat to an opposition president feels like another planet.

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