How to Remove a Supreme Court Justice -Part 3
We have a new report that lends credence to the need for an actual investigation, but Brett Kavanaugh has already been sworn in and has started making new laws for all Americans...what do we do now?
Impeaching a sitting Supreme Court Justice is nearly impossible, which is why we hold extensive Congressional hearings to determine the fitness of each candidate before they are appointed for life. This lengthy vetting process has proven valuable in the past, giving the public enough time to object and present their own evidence.
Sadly, the two most prominent examples of this involve credible women — like Anita Hill and Dr. Christine Blasey Ford — speaking out about events that were traumatizing and should have disqualified Thomas and Kavanaugh before they were ever appointed. It looks like we found our #MeToo limit and apparently it stops at the front door of the Supreme Court.
The United States Supreme Court is supposed to be an independent legal body, insulated from politics. Even the most political student will leave law school with the understanding that the United States Supreme Court Justices have elevated their legal minds to rise above the current trends and interpret the law. But, in this age, we can no longer pretend that this high ideal is in play, leaving us to wonder if the impartiality we thought we had ever existed at all.
In July, Congresswoman Alexandria Ocasio-Cortez (D-NY) introduced articles of impeachment against United States Supreme Court Justices Clarence Thomas and Samuel Alito, citing “unchecked corruption” and a looming “Constitutional crisis” threatening American democracy.
The first impeachment resolution against Justice Thomas was based on a failure to disclose financial income, gifts and reimbursements, property interests, liabilities, and transactions, and other essential information. The resolution was also based on Thomas’ refusal to recuse himself from matters concerning his spouse’s legal interest in cases before the court.
The second impeachment resolution sponsored by Ocasio-Cortez, was directed at Justice Alito, and also cited his unwillingness to recuse himself from cases in which he had a personal bias or prejudice concerning a party in cases before the court. Alito was additionally accused of failing to disclose financial income, gifts and reimbursements, property interests, liabilities, and transactions.
These articles of impeachment went nowhere, because the House of Representatives could never garner enough Republican votes to proceed to a hearing. This is a conundrum that is not likely to change in the near future. We can discuss the legal procedure for impeaching a Supreme Court Justice, but considering that one political party will not be able to get their horse out of the gate to even a first round of voting, we will just give this an overview and then get down to actual, viable solutions.
The following is a succinct explanation of the history of impeaching federal judges from the History Channel:
“In 1804, the U.S. House of Representatives voted to impeach Associate Justice Samuel Chase. A signer of the Declaration of Independence, Chase was appointed to the U.S. Supreme Court by President George Washington in 1796. A Federalist, Chase irked Thomas Jefferson and his Republican allies in Congress, and was impeached on politically motivated charges of acting in a partisan manner during several trials. However, in 1805 Chase was acquitted by the Senate. He served on the court until his death in 1811.
In 1969, Abe Fortas became the first—and, to date, only—Supreme Court justice to resign under the threat of impeachment. Named to the court by President Lyndon Johnson in 1965, Fortas was forced to step down due to financial improprieties that involved him agreeing to act as a paid consultant to the family foundation of a man under investigation for securities fraud.
In addition to Samuel Chase, 14 federal judges (who are appointed by the president and confirmed by the Senate) have been impeached over the course of American history, on charges ranging from drunkenness on the bench to accepting bribes. The first impeachment was in 1803 and the most recent was in 2010. Eight of the jurists were convicted by the Senate and removed from office, while three were acquitted and three resigned.”
Considering the number of Justices who are currently in hot water over their ongoing ethical lapses, the most effective way to reform appears to be codifying certain disqualifying acts that cover all sitting judges at the same time, rather than an archaic impeachment rule that has never truly been tested at the Judiciary level. In order to do this, a Constitutional Amendment that revises the make-up of the Judicial Branch of government and the rules which govern it, would be necessary.
This means that one political party would still need a majority in both chambers of Congress to advance a vote on the process. While one election cycle could provide those numbers, it is not very likely that one political party will win both the Senate and the House in a landslide any time soon. This means that there needs to be bipartisan support of an overhaul of the US Supreme Court in order to achieve the kind of drastic reforms that are now necessary.
It is a fair proposition to say that the highest court in the land should mirror all of the other federal courts and should have a panel of rotating judges to ensure true impartiality. In order for this to happen, Congress will need the support of Republicans in overhauling the Court that they have painstakingly curated for fifty years to achieve this advantage.
It is hard to imagine bipartisan agreement on this issue without Democrats having appointed enough liberal judges to overhaul the federal law and effectuate the same level of consternation among conservatives that liberals have been recently forced to endure. Considering that a Supreme Court Justice is appointed for life, this may not be a goal that can be reached in our lifetimes.
For this reason, our best offense is a strong defense. We know that without a majority, an opposing political party has very little power in stopping a Supreme Court Nominee from being confirmed. In order to secure appointments to the Supreme Court, we need to focus on securing the Executive Branch, four years at a time.
American Democracy was meant to be a slow moving ship, that takes time to make corrections and is not easily redirected. This intention of the Founding Fathers was one that needed to be paired with an impermeable vessel, one that was incapable of being hijacked. Rather than worrying about how we will right the course of legal history, we need all hands on deck to secure the vessel for the next four years so that our engineers can craft some kind of life raft for the Supreme Court that re-instills some semblance of fairness and legitimacy.
This is the reason that Senator Whitehouse’s recent report on the failings of the Brett Kavanaugh investigation cite protecting future nominations as the immediate goal of the Senate Judiciary Committee. To call for impeachment at this time would only be a dramatic and futile effort, meant to grandstand rather than effectuating real change. Real reform will have to be done piecemeal now, in segments, sometimes working from back to front.
Reform is now about shoring up our existing protections and methodically building new security barriers as we are able, in this time of great political divide. While many can agree that it is time to make a change in how the United States Supreme Court functions, it will be difficult to get people to agree on exactly how that should be done. What we do know for sure is that there are still many gaping holes and security issues with the process we have, that will benefit greatly from the oversight that has been missing for so long.
Amee Vanderpool writes the SHERO Newsletter, is an attorney, published author, contributor to newspapers and magazines, and an analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
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I agree with everything you said, but I also think for the justices involved it is in the public interest to keep the pot boiling. Maybe the frogs will jump out on their own.
If Kavanaugh’s sexual misdeeds are kept in the public eye with calls for civil actions for the victims, coupled with publicized deep dives into his finances (who did pay off his mortgage and credit cards?) then maybe he will decide it is better to crawl back under his rock.
Same for Thomas. The financial stuff that has been publicized can’t be all there is. The attacks on Anita Hill can’t be the only one either. Sexual predators don’t stop.