In a Washington Post opinion piece, University of Chicago law professor Aziz Huq outlines ways in which Democrats can remove Supreme Court Justice Kavanaugh without the trouble of impeachment.
Huq called impeachment a “polarizing process” with which Democrats are “uneasy” and believes that attempting to impeach Justice Kavanaugh would result in a “hyperpartisan spectacle” that is “doomed to fail.” Instead, he has offered the left a couple of options that he thinks would prove sufficient to cripple Trump’s Supreme Court appointee.
“A Democratic Congress and a future Democratic president could still remove Kavanaugh from the Supreme Court if they wanted, without needing to impeach him,” Huq wrote. In the first instance, the Democrats would have to win the presidency in 2020. Then the newly-elected POTUS would simply “nominate, and the Senate would confirm by majority vote, a justice — in this case Kavanaugh — to a different post on an intermediate court of appeals.”
Such an approach would effectively demote Kavanaugh from his current position and push him to the judicial sidelines on a lower court. And while there is some measure of historical precedent for the move, it has never been done. Furthermore, it could seriously backfire.
“However satisfying to Democrats in the short term, an exercise of the Stuart power would create a destabilizing precedent,” Huq warned. “It’s easy to imagine any change in party control of Congress and the courts leading to dramatic changes in federal court personnel.”
The second solution comes from the minds of two conservative scholars who wrote an article entitled “How To Remove a Federal Judge” for the Yale Law Journal in 2006. Saikrishna Prakash and Steven D. Smith presented evidence to support the idea that “good behavior” standards were judicially enforceable. As Huq explains:
As (roughly) proposed in the Yale article, Congress could pass a statute authorizing a specially constituted bench of federal judges — say, five randomly drawn judges — to determine whether a particular judge (here, Kavanaugh) had violated the “good behavior” standard.
That special bench could hold a hearing and, if convinced by the evidence, make the requisite finding to trigger exit from the bench. This approach wouldn’t require a congressional supermajority. It would need a presidential signature.
Either way, removing Kavanaugh from his appointed role would require that the oft-whispered “blue wave” reach the shores of 2020 in full force. Further, both options would create far-reaching effects that could dramatically alter the landscape with each new administration. Democrats will have to decide whether the immediate outcome of removing Kavanaugh would be worth the long-term cost.
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