Could Brett Kavanaugh be impeached? Here's what the Constitution says

By Jason Silverstein

/ CBS News

Brett Kavanaugh faces calls for impeachment

A newly reported but unsubstantiated accusation against Supreme Court Justice Brett Kavanaugh of sexual misconduct at a college party has some Democrats calling for his impeachment. But if history is any guide, don't expect a verdict that will take him off the bench.

Kavanaugh has not commented on the latest accusation, but he previously denied any sexual misconduct, and many questions are being raised about the new report. What would happen if Democrats decided to pursue it?

The potential impeachment of any Supreme Court justice would be similar to the process for impeaching President Trump. Under the current Congress, that means impeachment would also likely have the same outcome: even if Democrats in the House voted to impeach Kavanaugh, there's little chance of him being removed by the Senate.

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Only one Supreme Court justice in U.S. history has been impeached and even he wasn't taken off of the court.

The Constitution says Congress has the power to impeach the president, vice president and "all civil Officers of the United States" for "Treason, Bribery, or other high Crimes and Misdemeanors." Supreme Court justices and federal judges fall under "civil Officers."

If members of Congress decided to pursue impeachment, Kavanaugh would face the same process as a president or vice president. The House would draft articles and vote on whether to impeach him. If a majority of House members voted for impeachment, the Senate would then hold a trial and decide whether to convict Kavanaugh — thus removing him from the Supreme Court — or acquit him.

Since Democrats control the House, it's possible they could vote along party lines to impeach with a simple majority, if their leaders decided to allow it onto the floor. But even if that happened, it's extremely unlikely, to say the least, that the Republican-led Senate would provide the two-thirds vote needed to convict and remove Kavanaugh. Senate Majority Leader Mitch McConnell has steadfastly stood by Kavanaugh, as has President Trump, who tweeted that Kavanaugh should "start suing people for libel."

Despite the calls for impeachment from several Democratic presidential candidates, it's not at all clear that there's momentum for impeachment among Democrats the House. House Judiciary Committee Jerry Nadler said Monday that the committee members have "our hands full with impeaching the president right now," signaling there would be no immediate action.

And he's not the only one who seems wary of the idea. A lawyer for Christine Blasey Ford — the psychology professor who testified before the Senate Judiciary Committee about separate allegations against Kavanaugh during his confirmation hearings — said last year that Blasey Ford wouldn't want him impeached even if Democrats took control of Congress.

The allegation that set off the impeachment talk over the weekend is also facing its own scrutiny. The New York Times published an op-ed Saturday based on a new book by two of its reporters which said one of Kavanaugh's Yale classmates allegedly saw Kavanaugh as a freshman at a dorm party with his pants down and friends pushing his penis into a female student's hands. But The Times added an editor's note to the story on Sunday saying that the woman herself declined to be interviewed and her friends said she did not recall the alleged incident.

Senator Chris Coons, a Democrat on the Judiciary Committee, said he was aware of the allegation during the confirmation hearings and wrote to the FBI asking it to investigate. He said he thinks the FBI inquiry at the time "was too narrow, too brief, and too constrained and the American people deserve to know why."

The only Supreme Court justice in U.S. history to be impeached was Samuel Chase in 1805. According to an account by the U.S. Senate, President Thomas Jefferson pushed for Chase's impeachment after the associate justice "showed no willingness to tone down his bitter partisan rhetoric" and appeared to let political bias influence his handling of cases. The House impeached Chase on eight articles, but he was acquitted on each one by the Senate and remained on the Supreme Court until his death in 1811.

There have been eight federal judges over the years who were impeached and removed for offenses such as tax evasion, perjury, sexual assault and intoxication on the bench. The most recent removal of a federal judge was in 2010.

First published on September 16, 2019 / 6:53 PM

© 2019 CBS Interactive Inc. All Rights Reserved.

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