Justice Kavanaugh should not be impeached or investigated

Now that Democrats are about to gain control of the House of Representatives, some radical elements within the Democratic Party are suggesting that Supreme Court Justice Brett Kavanaugh should be impeached, or at the very least that he should be investigated by a committee controlled by Democrats.

A left-wing political action committee has garnered close to 200,000 names on a petition to impeach the newly confirmed justice. Rep. Jerrold Nadler (D-N.Y.), who will head the House Judiciary Committee, promised to investigate Kavanaugh’s alleged misconduct: “If he is on the Supreme Court, and the Senate hasn’t investigated [Kavanaugh], then the House will have to. We would have to investigate any credible allegations of perjury and other things that haven’t been properly looked into before.”

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These would be a serious mistakes, both legally and politically.

It would seem to be beyond dispute that a sitting justice could not be impeached and removed for alleged conduct he committed decades ago, when he was 17 years old. But, taking a page from the Republican playbook in the Bill ClintonWilliam (Bill) Jefferson ClintonPoll shows Biden, Warren tied with Trump in Arizona Ben Shapiro: No prominent GOP figure ever questioned Obama's legitimacy The Hill's 12:30 Report: Trump tries to reassure voters on economy MORE impeachment, some Democrats are saying that Kavanaugh can be impeached for the testimony he gave about those long-past events. That, too, would be constitutionally dubious.

First, he was not a sitting Supreme Court justice when he gave that testimony; he was a judge on the United States Court of Appeals — so he would have to be impeached and removed from that office. But he no longer serves in that office. Zealots might argue that he can be impeached and removed as a justice of the Supreme Court for perjury committed during his confirmation hearing to serve on the high court. That is somewhat more plausible but it, too, is a stretch.

Moreover, it would be virtually impossible to prove that Justice Kavanaugh committed perjury — that is, willfully lied about a material fact. Even if he was wrong — even if his accuser, Professor Christine Blasey Ford, truthfully testified about what happened years ago — it is highly likely that Kavanaugh did not remember what Ford claims happened. If that were the case, his testimony would not be perjurious. Nor would it be perjury for him to have a different recollection of his drinking habits than the recollection of some of his classmates. Perjury is difficult to prove, especially regarding decades-old events. 

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Let’s recall that modern attempts to impeach Supreme Court justices have been directed against liberal members of the court: Chief Justice Earl Warren and Justice William O. Douglas. These efforts never went anywhere, because they were transparently political. So, too, would current efforts by the Democrats to manufacture a case for impeachment against a justice whom they oppose on ideological grounds. And if they were to succeed, it would establish a terrible precedent that could come back to haunt liberal justices and Democrats. Remember what happened when foolish Democrats employed the “nuclear option” to eliminate the super-majority rule for confirming judges.

I worked hard on behalf of Democratic candidates to assure that at least one house of Congress is under the control of the opposing party. A divided Congress is an important check-and-balance against one-party rule. But the Democrats risk weakening their power if they foolishly prioritize impeachment, investigations and revenge over legislative priorities that could help the American public. We need more bipartisan legislative efforts and fewer hyperpartisan show trials or investigations.

Impeachment is a constitutional remedy of last resort, deliberately made difficult by our Framers. Impeaching and removing a president is, of course, the most extreme step that Congress could take, but impeaching a justice, who has been confirmed by the Senate, comes close. It would be a flagrant abuse of power for the Democratic majority to act in so unconstitutional, unwise and shortsighted a manner. But in this age of hyperpartisan politics, nothing should surprise us.

Leaders of the Democratic Party seem to understand this, but some soon-to-be House committee chairs seem ready to deploy their newly found power to gain headlines and appeal to the immediate gratification of their base. The leadership should restrain these impulses and look to the future, instead of trying to investigate past sins of those with whom they disagree.

Justice Kavanaugh has been hearing arguments on the high court. Soon he will deliver his first opinions. Let’s put recriminations behind us and judge him on his actions as a justice, not on allegations of his past behavior.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against Impeaching Trump.” He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.