Donald Trump is up for reelection in about 18 months. Even if he wins, he is term-limited out of office after 2024. Even if he declares a national emergency and appoints himself dictator for life, Trump is a 72-year-old man with the diet of the Hamburglar. Most people reading this will outlive Donald Trump.
Many of us will not outlive Brett Kavanaugh. And the Constitution vests him with power for the rest of his natural life. If Democrats are going to make a move against any federal official, it should be against the Supreme Court justice who is under the cloud of 83 ethics violations.
State and federal prosecutors might someday hold Trump and his associates accountable in court for their apparent wrongdoing. Not so with Kavanaugh. Those 83 ethics complaints, all inspired by his conduct at his nomination hearings, were dismissed in December by 10th Circuit Judge Timothy Tymkovich. Last week, the US Court of Appeals for the 10th Circuit rejected 20 appeals to reinstate the complaints. No ruling has been made about the validity of any of the allegations. The court dismissed the claims because it believes it has no authority to hold a sitting Supreme Court Justice accountable.
The ruling is not surprising. Even in the face of serious charges, there is simply no mechanism under the Judicial Conduct and Disability Act for a lower court to move against a sitting Supreme Court justice. Chief Supreme Court Justice John Roberts is apparently thinking about imposing some kind of code of conduct upon his colleagues, but currently none exists. Supreme Court justices live by no code of ethics other than what they feel like when they wake up in the morning, and if that sounds okay to you, let me introduce you to a man named Clarence Thomas, who should populate your nightmares.
But there is a constitutional mechanism to do something about Kavanaugh and the many, many lies he is accused of telling. That process is called “impeachment.”
The process to impeach a Supreme Court justice is exactly the same as the process to impeach a president: a majority vote in the House of Representatives brings the charges (those charges are what we call “impeachment”), then there is a trial in the Senate. A two-thirds supermajority vote in the Senate is required to convict and remove a judge, or president, or any other federal official from office.
Because removal requires a two-thirds majority in the Senate, I know some Democrats will say that bringing charges against Brett Kavanaugh—impeaching him—is pointless. Some Democrats insist on living in a country where nothing is “worth it” unless Republicans are likely to agree.
I refuse to live in that world. If I waited for Republican approval before I tried something, I’d be shining shoes at Grand Central, as would befit my station. Laws must be upheld, and the Constitution must be defended, whether Republicans join the effort or not. I voted for Democrats up and down the ticket to fight for our institutions and norms, not to capitulate because the battle is hard.
If the Democrats would just stop running away long enough to actually face the enemy, they might see that the case against Kavanaugh is incredibly strong.
First, you have those 83 ethics complaints. The fact that the 10th Circuit court threw them out for lack of “jurisdiction” is an invitation for Congress, the one body with jurisdiction, to investigate them. To not investigate them would be a dereliction of the duty the court laid squarely at Congress’s feet.
And we know there’s a lot to investigate. We know Brett Kavanaugh lied to or misled Congress repeatedly during his 2004 testimony about his efforts to help another judge, William Pyror, secure Senate confirmation. In 2006, it looks like he materially misled Congress again, this time about his involvement in Charles Pickering’s nomination to the US Court of Appeals for the Fifth Circuit. Senator Patrick Leahy, former chairman of the Senate Judiciary Committee, wrote an entire op-ed detailing Kavanaugh’s misleading testimony in front of the committee in the past.
Kavanaugh’s less-than-truthful testimony is a documented fact. A full hearing on whether these lies and statements were actual perjury—which requires some level of self-awareness at the time you are lying—or immaterial misstatements, is warranted. If Michael Cohen can go to jail for three and a half years for lying to Congress (and bank fraud, and other assorted offenses), even though he agreed to cooperate with Congress at the end, then Brett Kavanaugh can certainly be investigated for lying to Congress and being a sneering, disrespectful Saturday Night Live caricature while doing it.
Impeachment proceedings would also help us get real answers to two of the questions that have dogged Kavanaugh since he became a Supreme Court nominee. The first issue is that of his debts. Excellent reporting has been done about the $60,000 to $200,000 in debt Kavanaugh had, and then mysteriously paid off. Kavanaugh’s official line has been: he bought a lot of baseball tickets to the Washington Nationals and his friends paid him back.
I don’t know intelligent people who actually think that is the full story. Even Bryce Harper didn’t like the Nationals that much. The debt issue goes directly to whether or not Kavanaugh is corrupt, and it’s kind of important to know whether a Supreme Court justice owes favors all over town to support his “baseball” habit.
Speaking of habits, the second issue involves Kavanaugh’s “dice games.” Documents produced during the confirmation hearing revealed a disturbing e-mail from Brett Kavanaugh: “Apologies to all for missing Friday (good excuse), and growing aggressive after blowing still another game of dice (don’t recall). Reminders to everyone to be very, very vigilant w/r/t confidentiality on all issues and all fronts, including with spouses.”
Here again, Brett Kavanaugh’s “alibi” strains credulity. He has claimed that he was just hanging out with friends, playing dice for “non-monetary stakes,” and talking about an upcoming date he was going to have with his now-wife. He says that he wanted his friends to be “confidential” about his feelings for her, because he was afraid that they would somehow get back to her. He hasn’t addressed whether he’s now or has ever been a blackout drunk, beyond screaming “I like beer,” which, I’ll remind you, is not an answer to anything.
Apparently, Brett Kavanaugh wants us to believe that he’s a nice boy living in a RomCom. Like he’s Ben Stiller trying to get a date with Drew Barrymore and it’s just his buddy Vince Vaughn that does all the crazy stuff.
I don’t know what kind of debts Kavanaugh has or had, but I know I want all of his friends, under oath, testifying to dice games, baseball games, debts, and “growing aggressive.” This man lied to or misled Congress in 2004. He lied to or misled Congress in 2006. How blind do you have to be to think that he didn’t lie to or mislead Congress in 2018?
You’ll note that I haven’t even brought up the elephant that is indelible in the hippocampus. Impeachment charges can be brought against Brett Kavanaugh without letting Lindsey Graham torture Dr. Christine Blasey Ford for even another second. The craven and toxic Republican caucus need not get one additional shot at Dr. Ford, or Deborah Ramirez.
Republicans know that they’ve put an alleged attempted rapist on the Supreme Court. And they are cool with it. Graham, in particular, seems engorged by his role in this travesty: a picture of Kavanaugh and Graham has been Graham’s Twitter avatar for months now. The Republican base seems to have enjoyed forcing Kavanaugh upon the rest of us. Sorry if I’m not particularly interested in their opinions on impeachment.
So far, Republicans have gotten exactly what they bargained for with Brett Kavanaugh. He has indicated deep hostility toward Roe v. Wade. He’s been a reliable conservative vote. And in his most recent concurring opinion, he revealed a hint of the partisan hackery that Republicans so desperately wanted on the bench.
What are Democrats going to do about it? Live with an arguably dishonest, alleged attempted rapist for 30 years, like freaking saps? Because Republicans don’t believe ethics applies to their side of the aisle?
Democrats cannot let fear of these deplorable people scare them away from doing their jobs. Impeachment is not a political tactic; it is a constitutional responsibility. The courts are basically screaming: these charges are serious (they literally said it), we cannot do anything, only one body has the power to regulate bad behavior emanating from the Supreme Court.
If Democrats are not willing to uphold the constitutional duties of their offices, then why the hell did they run for them? What kind of weak and feckless body pounds on pathetic and powerless Trump associates for “lying” to them, but refuses to interrogate a constitutional officer for the same offense?
Brett Kavanaugh must be investigated and impeached. Refusing to do this work, when you are the only body in the country with the constitutional power and responsibility to hold Kavanaugh accountable, is abject cowardice.
And in case you’re wondering, no, there is no “double jeopardy” when it comes to impeachment. If it were me, I’d file impeachment charges against Brett Kavanaugh every year until the day he is removed or dies. Then again, I have a spine.