Democrats are calling for Brett Kavanaugh to be impeached. How would that work?

Richard Wolf, USA TODAY

WASHINGTON – As a government lawyer a generation ago, Brett Kavanaugh sought to impeach a sitting president. As a federal judge writing in a law review a decade later, he staunchly defended the impeachment process.

And last year, during a Senate confirmation hearing that focused on allegations of sexual assault against him from the early 1980s, Kavanaugh warned senators that "what goes around comes around."

Now the subject of impeachment has come around again, not with President Donald Trump in the crosshairs but with Kavanaugh. Democratic presidential candidates are calling for him to be impeached after The New York Times published an essay containing new allegations of sexual misconduct from his time as a Yale undergraduate.

The battered copy of the Constitution that Kavanaugh carried to his confirmation hearings makes clear that federal judges, like other officials, can be impeached. 

More: Brett Kavanaugh begins Supreme Court tenure cautiously as fellow conservatives push for change

Article II, Section 4 says the president and other civil officers can be impeached and convicted for "treason, bribery or other high crimes and misdemeanors." The first section of Article III says judges "shall hold their offices during good behavior."

Even before Kavanaugh's confirmation last October, Rep. Jerrold Nadler, D-N.Y., warned about future investigations if Democrats were to take over the House. They did just that the following month and Nadler now chairs the Judiciary Committee that could draw up articles of impeachment.

"If he is on the Supreme Court and the Senate hasn't investigated, then the House will have to," Nadler said then about the sexual misconduct allegations Kavanaugh denied. "We would have to investigate any credible allegations, certainly of perjury and other things that haven't been properly looked into before."

Sen. Sheldon Whitehouse, D-R.I., a member of the Senate Judiciary Committee whose recent friend-of-the-court brief challenging the Supreme Court's legitimacy was anything but friendly, sounded a similar warning at the time: "As soon as Democrats get gavels, we're going to want to get to the bottom of this."

The problem for Democrats is that they hold gavels only in the House, where a simple majority vote was enough to impeach President Bill Clinton 20 years ago. Conviction in the Senate would take a two-thirds vote, and Democrats lack even a majority. 

Senate Majority Leader Mitch McConnell on Monday called impeachment a "laughable suggestion." Senate Judiciary Committee Chairman Lindsey Graham vowed that Kavanaugh will not be impeached "over these scurrilous accusations."

The process for impeaching a federal judge or Supreme Court justice works much as it would for a president, with one key difference: The vice president, as president of the Senate, would preside – not the chief justice of the United States.

A House investigative panel would have the power to compel the testimony of witnesses and gather documents. That probe could be broader than the sexual harassment allegations, and the constitutional threshold for impeachment – "high crimes and misdemeanors" – isn't limited to criminal wrongdoing.

There is no indication from Congress that an effort to formally start the process will happen, though several Democrats have voiced support for impeachment.

Sens. Elizabeth Warren of Massachusetts and Kamala Harris of California called for Kavanaugh's impeachment on Sunday. Both Democrats are currently running for president. 

GOP Sen. Ted Cruz, Texas, said on ABC's "This Week," "I think that follows up with the rather shameful circus we saw during the confirmation hearing," adding that calls for Kavanaugh's impeachment were "another sign of how nasty and divided the time is."

Senate Majority Leader Mitch McConnell, who has made increasing the number of conservative justices a major political goal, pledged his support to Kavanaugh. 

U.S. District Judge Thomas Porteous, a Clinton appointee from Louisiana, was the last federal judge to be impeached. He was convicted in the Senate of four counts, including a charge that he misled the FBI and the Senate during his confirmation process. Porteous was the 16th federal judge to be impeached and the eighth to be convicted. 

Only once has a Supreme Court justice been impeached. Samuel Chase, a Federalist justice appointed by President George Washington, was impeached by a Democratic-Republican House in 1804 for "arbitrary, oppressive, and unjust" decisions on the court.

The Senate declined to remove him from office, setting a precedent that exists to this day. As former Chief Justice William Rehnquist noted in a 1992 book about the case, "it assured the independence of federal judges from congressional oversight of the decisions they made in the cases that came before them."

Kavanaugh, in his Minnesota Law Review article from 2009, noted that federal judges' life tenure "justifies a more searching inquiry by the Senate into their fitness and qualifications for office."

That inquiry, he wrote, should come during the confirmation process.

Contributing: Gregory Korte, Nicholas Wu 

This article originally appeared on USA TODAY: Brett Kavanaugh: How do Supreme Court judges get impeached?