Below is my column in The Hill newspaper on the growing pledges from House and Senate Democratic members to investigation and possibly impeach Brett Kavanaugh if he is confirmed this week. It would constitute a dangerous and reckless precedent for Democrats to pursue with any new majority.
Here is the column:
There is something vaguely familiar in the recent declarations by Democrats that they are prepared to hold post-confirmation investigations into Judge Brett Kavanaugh if he is confirmed. The idea is that, if given control, Democrats will order an effective redo in pulling Justice Kavanaugh back before one or both houses.
There is precedent for such a body. It was called the Synodus Horrenda, or the “Council Dreadful.” Used in medieval times, these tribunals could prosecute even the dead for long passed crimes. Sheldon Whitehouse (D-R.I.) promised Kavanaugh that it does not matter if he is confirmed because “as soon as Democrats get gavels” the party will investigate and possibly impeach him. On the House side, Democratic representatives on the House Judiciary Committee, including Ted Lieu (D-Calif.), Hank Johnson (D-Ga.), Luis Gutiérrez (D-Ill.), Pramila Jayapal (D-Wash.) and Jerry Nadler (D-N.Y.), have declared that they will open up an investigation into Justice Kavanaugh as soon as they regain control over the House.
In other words, neither confirmation nor death will prevent a day of reckoning once power shifts hands. The implications are chilling for a system designed to insulate justices from political threats or retaliation. The most famous Council Dreadful (or “cadaver synod” or “council horrible”) was called in 897 when Pope Stephen VI wanted to try Pope Formosus for crimes that occurred decades earlier. The problem was that Formosus was already dead. His successor, Pope Boniface VI, died under controversial circumstances after only 15 days. Stephen then took over the papacy and the Council Dreadful, which dug up Formosus and propped him on his throne to answer for his crimes. Not surprisingly, he failed to convince the jury composed of his enemies. He was convicted, stripped of papal garments, and three fingers of his right hand used for blessings were cut off. He ultimately was thrown into the river Tiber.
Whitehouse seemed eager to put the dread back into the Council Dreadful last week in proclaiming that “the sand is running through Kavanaugh’s hourglass.” The pledge to effectively have a do over is playing well with Democratic voters even though the odds of a successful impeachment are remote. Being tossed in the Potomac may be one of the few indignities not awaiting Kavanaugh if such post-confirmation hearings are ordered. It would create precedent for justices to be retroactively investigated on allegations raised but rejected in their confirmations.
I previously said that I agree with Democrats that the withholding of years of background material for Kavanaugh was unprecedented and wrong. Yet, the degree of disclosures demanded by the Senate is, ultimately, a decision of the majority. Moreover, Kavanaugh’s answers about his work on controversial matters were sufficiently hedged to make any claim of perjury difficult to establish. Whitehouse, however, was not talking about Kavanaugh’s work as White House secretary in the Bush administration.
Whitehouse was suggesting that a potential Democratic majority after midterms would call a Justice Kavanaugh to answer allegations that he was a serial rapist. The problem is that the Senate already has heard from the witnesses cited by Christine Blasey Ford and none corroborate her accounts, or even remember the party in question. This is not dispositive, since Ford said she told no one until many years later. However, she cannot remember the date or the specific location of the incident, or the identity of the person who drove her home after she fled the party.
Republicans have not helped the process with their artificial limitations on investigating the claims. Rightfully irate at the Democrats for holding the allegations until shortly before the committee’s vote, Republicans refused to ask for a FBI investigation and then effectively waived serious examination of Ford by hiring a female prosecutor who was limited to questions in ridiculous five minute increments. The haiku style examination of Ford was wide and correctly derided. Similarly, Democrats had little ability to examine Kavanaugh in such brief segments.
Finally, the belated week long FBI investigation seemed more suited for political cover than actually uncovering new evidence. Nevertheless, a special hearing was held, declarations gathered, and a supplemental investigation ordered on allegations occurring decades ago. To call post-confirmation hearings on such allegations would expose all justices to lingering threats of investigation with shifting majorities in Congress. That is precisely what the Framers sought to avoid in establishing a high standard for impeachment and giving federal jurists a lifetime tenure.
It seems highly unlikely that Democrats would be as motivated in promising to pull back Justices Sonia Sotomayor or Elena Kagan before Congress on discrepancies in their records. Democratic nominees have faced allegations of untrue statements before Congress without the threat of post-confirmation investigation. Some advocates objected that Kagan denied being asked for or offering her opinion on the “the underlying legal or constitutional issues related to any proposed health care legislation” or “the underlying legal or constitutional issues related to potential litigation resulting from such legislation” while she was solicitor general of the Justice Department during the Obama administration.
Later, critics argued that newly disclosed documents showed that, after the Affordable Care Act was enacted, Kagan was consulted on the challenge to that law and may have forwarded some possible arguments to use in litigation. While this became an issue in calling for her later recusal from hearing the appeal, there was no call for her removal.
Impeachments were primarily designed to address misdeeds or abuse in office. While a nominee clearly committing perjury in a confirmation hearing could raise grounds for impeachment, it would be in stark contrast to the past record of these very same members. Democrats did not call for such probe into figures like former National Intelligence Director James Clapper, who lied about a major and allegedly unconstitutional surveillance program before the Senate. He admitted that he had chosen the “least untruthful” option in his testimony. Whitehouse did not pull out his hourglass to menace Clapper.
None of this is meant to suggest either certainty or satisfaction with the status of these allegations. Like many, I found both Ford and Kavanaugh’s testimony compelling. I would have preferred that Democrats revealed the allegations earlier. I would have preferred that Republicans provided more time for questions and investigation. Moreover, it is still not clear what, if anything, the FBI might uncover or how this will end.
Yet, end it must. There needs to be finality in some parts of our government, even as chaos reigns in all other parts. If senators are troubled by the lack of disclosures or time, they can in good faith vote against Kavanaugh. However, a confirmation vote shows that the requisite majority of senators were satisfied enough with the record to confirm.
Democratic members should consider the potential political cost of endorsing retroactive reviews of confirmation hearings. It certainly did not work out well for Pope Stephen VI, who was eventually arrested and condemned to death by strangulation. Watching this unfolding spectacle in Washington, many voters know exactly how he must have felt.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.
This is all rhetoric to goad a desperate and hate-filled Democrat base to the polls. It is virtually impossible to impeach Kavanaugh and these Leftist hacks know it even if their sycophant followers do not.
Regardless of how the House votes, it will take a two-thirds super majority (67 of the 100 senators) to convict and remove him from the bench. Kavanaugh got 50 Senate votes in favor of his confirmation and 48 opposed. The Democrats would need to get a sizeable number of Republican senators to vote for conviction after those Senators voted to confirm him.
Nevertheless, I call on every GOP candidate for the House and Senate to raise this issue publicly and repeatedly with their Democrat opponent. They should demand to know whether their opponent will support further investigation and impeachment of a constitutionally confirmed Supreme Court Justice. If the Democrats want to ride this horse, hammer them over the head with it.
I think you are being naive when it comes to Democrats setting a precedent if they seek to impeach Kavanaugh. First, Republicans in today’s world have shown to set institution-damaging precedents for short-term political gain at multiple levels, including the Supreme Court. They’ve most clearly done this by:
1) Merrick Garland,
2) not providing Bush-era Kavanaugh documents,
3) nominating an extremist to replace Kennedy,
4) nominating two extremists when current republican senators have received 20,000,000 fewer votes than their democrat counterparts, and
5) creating a narrative that conservative justices are robotic constitution-followers who don’t interpret anything or have any natural biases, whereas liberal justices are activists making laws.
So if you broaden your worry about setting dangerous precedents from a small picture view of impeaching justices to damaging the integrity of the courts, then Republicans have already achieved this.
Second, you are naive in thinking Republicans won’t create this same precedent at some point in the future once democrats nominate another justice.
In general, your focus on democrats potentially setting a single dangerous precedent should be shown in its limited proportion to republicans’ multiple already institution-shattering precedents.
Daniel – I listened carefully to Senator Collins defense of her cloture vote and defense of Kavanaugh. His record is not as conservative as Barrett’s. He and Garland agreed 96% of the time. Most people put him more as a moderate. Next comes Attila the Hun.
You spelled Garlands name correctly. The rest was pure left wing fascist BS.
What is 1,2,3,4,5, second and generall
No facts, no cites, no sites, no sources but nothing new there.
No wonder it was so easy to kick your ass (singular it’s a collective. )
I would love to see you, Jonathan, interact on occasion with those who comment here. We have much to learn and who better to teach us? I realize your plate is more than full, so my wish is unrealistic.
With medicine and many other topics it is not difficult to find gobs of information and explanations about specific issues. The inner workings and legal maneuverings in your profession remain hidden. There is so much we don’t get. Your world is something out of reach to your average bear. It is so complex and nuanced. You have to go to law school or hire a lawyer to begin to understand The Law. It almost seems that there is a conspiracy of silence that blocks us.
This much I do know. The level of corruption within our judiciary is beyond disgraceful and there seems to be no way that we can begin to make important changes or even alert the public how precarious this crises really is.
Never heard of the election of 2016.
We alerted the Constitutionalists to the extent we controlled that one with our 40%. The two parties split sixty.
We began making important changes soon after
As for what’s his names 20 million and Hillary’s 3 million votes you have yet to prove their relevance.
Your blue wave is more like a leaky fountain pen.
Mid term bump? So far the left hasn’t demonstrated the capability to make a pimple on a Tsunami’s ass. and now it’s solid five four with one of the four slightly to the right of center. with six to three and one of the three slightly to the right of center.
Whose center. YOURS
We don’t use your fictionary redefinitions.
In our country a Constitutional Republic The Constitution IS the center. Yours doesn’t exist
This whole Kavanaugh process has been a black mark on our SCOTUS process. Listening to Schumer this AM I heard no sense of a Senate working together. I heard Schumer criticize McConnell right on the floor. This is not the country our Founders were working toward. If Hillary had won you would probably hear the death of reason. And still she’s around. Now she’s appearing on a comedy sit-com. I am so sad that our Senate will be divided even more, but the nastiest we have gotten used to will only increase.
“This is not the country our Founders were working toward.”
No but we we are well on the way of reclaiming it. Stick around. We can all use some help even our largest voting block that destroyed the left and Clinton.51 percent required. 40% from the self governing independent constitutional centrists. 60 divided between GOP and DNC.
The outcome? Trump took the party and we took the nation.
And another big thank you to the men and women of the combat arms of our nations military. One of our largest components and most helpful. We had many more including independent citizens All part of the Constitutional Centrist Coalition.
A large part of the GOP became in effect the Constitutional Republic Party the ones with seated members of Congress and… one President.
We’re not done yet.
Next plan is to float the idea that declared socialists cannot take the oath of office and that disqualifies them.
Followed by the notion that acts against the Oath of Office can themselves be cited for impeachment AND a trial and kicked out of Congress. Hear me talking Feinstein, Pelosi and Schumer?
We are that close to having sufficient votes to those and a number of things.
Government slowdown layoffs. The President selects those laid off and chooses political appointees previous to his administration but not including those who are near retirement. (Bush, Clinton) though they may not like their swan song job assignments.
Tick Tick Tick remember the Sheriff that assigned the crooked judge to offices in the base ment lavatory? A fitting place for those who earned the dishonor.
The revised US Code
Title 1
Under the law a person is guilty if they are not Democrat.
Under the law a person is not guilty if they are Democrat.
The End
Jonathan, how are we going to clean up the courts?
I think someone with your stature, your reputation as a scholar, and as an impartial analyst of factual information, you can be instrumental in bringing reform.
scholars can’t help at this level. only partisans can, political soldiers.
America is seeing the emergence of the kind of serious fight that transcends legalistic distinctions and cuts instead to the quick of social identity and interests.
This is not false politics this is true politics, which can extend itself to other means at any time.
Interesting story, JT, but there’s not going to be any Synodus Horrendus. Pope Formosus was tried and convicted under Canon Law. While SCOTUS is majority Roman Catholic, the U.S. hasn’t undertaken any efforts – yet – to adopt Canon Law, LOL.
Interesting story, JT, but there’s not going to be any Synodus Horrenda, as Pope Formosus was tried under Canon Law. Although SCOTUS is majority Catholic, I think we’re still quite a ways from adopting Canon Law in the U.S., lol. (Breyer, Ginsburg & Kagan are Jewish; Roberts, Thomas, Sotomayor & Alito are Catholic. If Kavanaugh is confirmed, that make a total of five Roman Catholics, with Gorsuch being a wild card. He was raised Catholic, and was educated at the Jesuit run Georgetown Prep in Bethesda, MD, but he attended a liberal Episcopalian church while living in Denver.)
Scalia was a serious Catholic. Sotomayor is not. The others are ambiguous figures.
and the Jewish minority. How did we get to where Protestants don’t have any affirmative action quota on top court of the nation they founded?