Sen. Cory Booker (D-N.J.) claimed last Sunday that if Democrats take back either the House or the Senate, they can impeach newly sworn-in Justice Brett Kavanaugh from the Supreme Court.
If the Democrats get a majority, is it possible for them to remove Kavanaugh from the bench?
If Dems Get Majority in Congress, Can They Impeach Kavanaugh?
Speaking with Yahoo on October 7 only a day after the vote that allowed Kavanaugh to be sworn in, Booker said that the idea of removing the Supreme Court justice should not be taken off the table due to his prior track record.
“If there is conclusory evidence that shows unequivocally that he lied to a Senate committee, that is a crime, and he should be held accountable for those criminal acts,” Booker said.
Senators called for Kavanaugh’s removal after claiming he committed perjury. Many say that he misrepresented himself as a young man in his testimony during the Christine Blasey Ford hearing, with his freshman roommate writing in Slate that he “was a notably heavy drinker, even by the standards of the time, and that he became aggressive and belligerent when he was very drunk.”
It has also been said that before the sexual assault charges, he lied under oath about his time during the George W. Bush administration in the mid-2000s.
Booker said that these are “a number of things that the FBI could have easily investigated to see if he was lying about his past conduct,” but didn’t, which means that until the Democrats flip one of the congressional houses, talking about his potential perjury is futile.
“The reality is, right now, Republicans control the House and the Senate, and there’s no way to do even an investigation unless we flip one of the houses,” he said. “So I think even before you start focusing on questions about his truthfulness before a Senate committee, you’ve got to focus on the urgency of the work over the next 30 days, and that’s where my focus is.”
Is that all it takes? Is flipping either the Senate or the House all it takes?
Paul Schiff Berman, the Walter S. Cox Professor of Law at George Washington University, agreed with Booker, telling IJR that perjury is the best probable cause to put him under impeachment.
“If the Democrats were inclined to try to impeach Kavanaugh, the legal justification for impeachment would be perjury,” he said. “It’s pretty clear he lied … to the Senate Judiciary Committee.”
He added: “If that was proven or there was evidence that he deliberately deceived the Senate Judiciary Committee, that would, in fact, be grounds for impeachment.”
To start the process, Berman said that the first part would not be able to start with Booker, saying that “it would be someone in the House who would have to hold hearings and then file Articles of Impeachment” to get the proceedings started.
Then, the House Judiciary Committee would begin an investigation into the claims, including interviewing witnesses, issuing subpoenas, and looking into the allegations. According to Berman, odds are that it would be a longer and more lengthy investigation than the one conducted after Ford’s hearing.
“They would probably also conduct the full investigation that the Democrats feel the FBI was not allowed to do,” he said.
After that, the House would vote on moving the impeachment forward.
“If that passed, it would move to the Senate to have a trial on whether to convict Kavanaugh and therefore remove him,” Berman said.
After the trial, the Senate would handle a final vote, but a normal majority will not do. A two-thirds super-majority is required to remove a justice from the Supreme Court, meaning that even if the Democrats keep all of their Senate seats and take all of the Republican seats up for grabs, they will still need another 10 Republican senators to create their super-majority.
Fact or Fiction
Now, sticking to basic judicial process, yes, it is possible for Kavanaugh — or any justice, for that matter — to be impeached.
However, for this particular scenario, Berman said it’s “doubtful.”
“If the Democrats sweep both the House and the Senate, and they find through hearings and subpoenas both the lying and the underlying sexual assault that he was accused of,” he said, “then I think it is possible … to get enough Republican votes in the Senate, though it’s not likely even then.”
With the proceedings including an initial vote, an investigation, a House vote, a Senate trial, and a final vote requiring a super-majority, Berman said that there are too many places where Congress members can back out.
“[The] impeachment process is as much of a political process as it is a legal one,” he said. “It’s about whether they have the votes to do it.”
We rule this as fact, but unlikely.