Following an article posted by The New York Times this weekend, several Democratic presidential candidates are calling for the impeachment of U.S. Supreme Court Justice Brett Kavanaugh on allegations of sexual misconduct from his time as a student at Yale University.
On Sunday, the Times reported that Kavanaugh faced a separate allegation of sexual assault from his undergraduate days and that the FBI did not investigate the claim. However, the story has come under some scrutiny.
The Times tweeted a promotion for the story, which they later deleted and apologized for, then added an editor’s note to the online story explaining that the female student mentioned in the new claim declined to be interviewed about the allegations and that friends say she does not recall the incident.
The Times’ article was an excerpt from a book about Kavanaugh that is to come out in a couple of weeks.
Kavanaugh fought sexual assault allegations prior to his confirmation by the Senate last October, facing many in Congress who said he was unfit for the position.
Amid the renewed call from Democratic candidates and others in Congress, many are asking if and how a Supreme Court justice, who is appointed to the position for life, can be removed from the bench.
Here’s a look at the impeachment process for sitting federal judges and others.
Can a Supreme Court justice be impeached?
Yes, a Supreme Court justice can be impeached. Article II Section 4 of the U.S. Constitution gives the House of Representatives the power to impeach federal judges and gives to the U.S. Senate the right to vote to remove judges who have been impeached.
The section reads: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Judges are considered part of the "all civil Officers of the United States" portion of the section.
What can a Supreme Court justice be impeached for?
The Constitution lays out two specific actions and one vague description of something that could lead to impeachment and removal of a justice from the bench.
The Constitution says a person may be removed from office for convictions of “Treason, Bribery, or other high Crimes and Misdemeanors.”
While treason and bribery are spelled out, high crimes and misdemeanors are a little vaguer. High crimes and misdemeanors are generally seen as a violation of the public’s trust. Sexual assault would fall under that category.
How does impeachment work?
Impeachment for justices works the same way as impeachment for a president or vice president would work.
Here are the steps in the process for impeaching a federal justice:
In the House
- First, an impeachment resolution must be introduced by a member of the House of Representatives.
- The speaker of the House must then direct the U.S. House Committee on the Judiciary (or a special committee) to hold a hearing on the resolution to decide whether to put the measure to a vote by the full chamber and when to hold such a vote.
- A simple majority of the Judiciary Committee must approve the resolution.
- If the Judiciary Committee approves the resolution, it moves to a full vote on the House floor.
- If a simple majority of the those present and voting in the House approve an article of impeachment, then the justice is impeached.
In the Senate
- The procedure then moves to the Senate where a "trial" is held to determine if the justice committed a crime.
- There is no set procedure for the trial. Details outlining how the trial is conducted would be set by the Senate leadership.
- Members of the House serve as "managers" in the Senate trial. Managers serve a similar role as prosecutors do in a criminal trial, they present evidence during the procedure.
- The justice can have counsel to represent him during the Senate process.
- Unlike in the trials of an impeached president or vice president, the chief justice of the U.S. Supreme Court would not preside over the trial of a justice. In an impeachment trial of a Supreme Court justice, the vice president would oversee the proceedings.
- Senators listen to the evidence presented, including closing arguments from each side and retire to deliberate.
- Senators then reconvene and vote on whether the justice is guilty or not guilty of the actions he is accused of. It takes a two-thirds vote of the Senate to convict. If the justice is found guilty, he is removed from office immediately.
- The result of the hearing in the Senate, along with a charge in the House that a justice has committed a crime is not a legal one. No penalty, other than removal from office, is brought against a justice in an impeachment hearing.
Has any Supreme Court justice been impeached?
Samuel Chase, who was appointed by President George Washington, was impeached in 1804 for "arbitrary, oppressive, and unjust" decisions on the court. The Senate declined to remove Chase from office on the House’s recommendation of impeachment, saying a justice should not be removed from the court because his or her decisions are not popular.
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