Top Democrats Throw Cold Water On Idea Of Impeaching Kavanaugh

While some Democrats are calling for the impeachment of Justice Brett Kavanaugh, Democrats on Capitol Hill aren't nearly as eager to go down that road.

While several Democratic candidates for President have responded to the reports about new allegations against Supreme Court Justice Brett Kavanaugh by calling for his impeachment, there’s little sign of any eagerness for such a move among Democrats on Capitol Hill.

First of all, House Judiciary Committee Chairman Jerrold Nadler, who would preside over any hearings related to such a hearing, came out fairly quickly yesterday to shut down the idea:

The House Judiciary Committee is too tied up with “impeaching the president” to take immediate action on a potential investigation into sexual misconduct allegations against Supreme Court Justice Brett Kavanaugh, Committee Chairman Jerry Nadler said Monday.

“We have our hands full with impeaching the president right now and that’s going to take up our limited resources and time for a while,” Nadler said on WNYC when pressed by host Brian Lehrer.

It’s a significant comment that comes even as advocates for formal impeachment proceedings against Trump have argued the Judiciary Committee is capable of juggling its Trump-focused investigations with other issues in its broad jurisdiction — including immigration and criminal justice policies.

Nadler’s interview comes amid calls from some Senate Democrats and presidential candidates to impeach Kavanaugh after a New York Times story over the weekend reported a new allegation of sexual misconduct against the justice from his time as a student at Yale.

Nadler said his first move to investigate Kavanaugh would come next month, when FBI Director Christopher Wray appears for a previously scheduled hearing that will now feature a significant focus on the Supreme Court justice’s past — and whether the FBI’s background check was thorough enough. Nadler said his panel’s primary focus would be determining whether Kavanaugh lied to the Senate.

“These deeds that he allegedly did years ago would be very relevant to a senator voting for or against his nomination,” Nadler said.

At the time, Nadler complained that the Senate only got a fraction of Kavanaugh’s records from his White House tenure, which ran from 2001 to 2006, when he served in the White House counsel’s office and later as staff secretary. He said it was urgent to receive because of the potential for Kavanaugh to rule on policy matters that may have come up during his time in the White House.

Nadler’s rejection of the idea was followed fairly quickly by other Senior Democrats, including the second-highest-ranking Democrat in the Senate:

Senior Democrats are moving quickly to snuff out calls to impeach Brett Kavanaugh, arguing those tactics are unrealistic and politically harmful.

Democrats are already wrestling with whether to try to oust President Donald Trump, and leadership sees little room for the party to take on a second divisive impeachment saga barely a year before the presidential election. So the demands by 2020 presidential contenders to remove the Supreme Court justice, on the heels of new reporting about allegations of sexual misconduct, are getting panned.

“Get real,” as Senate Minority Whip Dick Durbin (D-Ill.) put it Monday afternoon.

“We’ve got to get beyond this ‘impeachment is the answer to every problem.’ It’s not realistic,” Durbin said. “If that’s how we are identified in Congress, as the impeachment Congress, we run the risk that people will feel we’re ignoring the issues that mean a lot to them as families.”

Except for Kavanaugh’s lone Democratic supporter, Sen. Joe Manchin of West Virginia, Democratic lawmakers were livid about reports that the FBI did not thoroughly investigate two allegations against Kavanaugh. Many called for new probes into the Department of Justice, some demanded the FBI take up the matter and others hoped the House Judiciary Committee would begin some sort of investigation.

(…)

“Mitch McConnell would block any impeachment. So that’s a moot point,” said Sen. Patrick Leahy (D-Vt.), a former Judiciary chairman. He said the lesson to be learned is not to rush lifetime confirmations: “Don’t ever let those mistakes happen again.” Until Democrats take back the Senate, however, there’s little they can do to halt McConnell on nominations.

House Judiciary Chairman Jerry Nadler similarly dismissed the idea of an impeachment inquiry, arguing in a radio interview Monday that the committee is “concentrating our resources on determining whether to impeach the president.” The New York Democrat said it’s one thing for progressives to call for impeachment but for him “it’s a consequential action, which we have to be able to justify.”

Those remarks amounted to a blow to presidential candidates, prominent liberal lawmakers and progressive activists who called for Congress to take steps to remove Kavanaugh. Among those pushing for impeachment or at least an inquiry included 2020 aspirants like Sens. Elizabeth Warren and Kamala Harris as well as Reps. Ilhan Omar (D-Minn.), Alexandria Ocasio-Cortez (D-N.Y.) and Pramila Jayapal (D-Wash.).
“I’m pretty sure Jerry Nadler cares if somebody, particularly somebody is getting a lifetime appointment, whether that person lied to Congress,” said Sen. Mazie Hirono (D-Hawaii), who supports an impeachment inquiry. “I hope he’ll change his mind.”

The top two Democratic leaders in Congress haven’t touched the topic publicly and Democratic presidential front-runner Joe Biden stopped short of endorsing an impeachment inquiry. Several senior House aides said Democratic leaders, including Speaker Nancy Pelosi, have not discussed the recently disclosed Kavanaugh accusation — and what, if any, action the chamber should take.

Senate Minority Leader Chuck Schumer (D-N.Y.) told reporters Monday he would address the matter later: “That’s all I’m saying. Which is nothing. I’m saying nothing on Kavanaugh.”

Republican reaction to the idea of impeaching Kavanaugh is, of course, predictable:

Sen. Thom Tillis (R-N.C.), who is potentially vulnerable in his reelection bid next year, said “the left’s most recent effort to destroy his life and impeach him will fail.” The National Republican Senatorial Committee did fundraising off the early calls to get rid of Kavanaugh, urging donors: “Don’t let Democrats and the liberal media smear Justice Kavanaugh.”

Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Chuck Grassley (R-Iowa), who chaired the Judiciary Committee during Kavanaugh’s confirmation, gave fiery speeches pushing back against the latest allegations. McConnell called them “flimsy.”

Grassley told reporters his committee received only a letter telling them to talk to Max Stier, who The New York Times reported had witnessed Kavanaugh commit sexual assault at Yale. But Grassley said the letter contained no such allegation.

“You impeach people for treason, high crimes and misdemeanors. What has he committed?” Grassley said. “There were no allegations in this letter, so I’m not sure what the FBI was supposed to investigate.”

Chris Cillizza meanwhile argues convincingly that Kavanaugh isn’t going anywhere:

It’s probably worth noting here that a sitting Supreme Court justice has never actually been removed from office by Congress. Samuel Chase came close in 1805, when he was impeached by the House but acquitted by the Senate. (The charge against Chase? That he was too partisan!! Man, was the 19th Century quaint!)Just because no Supreme Court justice has ever been impeached and removed from the bench doesn’t mean people haven’t been trying to do just that for years.

There have been calls for impeachment charges to be brought against, among others Justice Clarence ThomasChief Justice John G. Roberts Jr. and Justice Sonia Sotomayor. And as Washington Post Supreme Court reporter Robert Barnes notes, there were billboards across the south during the 1950s calling for the impeachment of Justice Earl Warren following several rulings on desegregation.

In short: We’ve been here before. And for all of the sound and fury, even Samuel Chase served six more years on the country’s highest court after being acquitted by the Senate.

That history, plus our current political reality, make it very, very unlikely that Kavanaugh is going to be kicked off the Court.

Why?

Even if the Democratic-controlled House managed to impeach Kavanaugh — and that is no sure thing — there is almost no chance that the Senate would convict him. Republicans hold 53 Senate seats, which means that 20 of them would need to vote along with Democrats in order for Kavanaugh to be removed. Short of some hugely damning — and indisputably true — new facts about Kavanaugh’s past, it’s impossible to see such a thing happening.

All of which means that no matter how many books get written about Kavanaugh’s past, his future is almost certainly on the Supreme Court.

This split between the candidates for President and the people who would actually have to deal with the impeachment of Justice Kavanaugh is not surprising. The candidates are seeking to attract support from a Democratic base that deeply resents Kavanaugh’s nomination and still holds a grudge from hearings that gripped the nation a year ago. Many of them believe that these hearings were not fairly conducted due to restrictions placed on the investigation of the accusations by the Federal Bureau of Investigation, specifically including how far they could go in their investigation of the allegations made by Deborah Ramirez regarding what happened during the time she and Justice Kavanaugh were classmates at Yale in the early 1980s. Indeed, as Chairman Nadler being says himself, it strikes me that this aspect of the Kavanaugh hearing deserves follow-up by Congress. Members of the House and Senate rely on F.B.I. background checks all the time and if they are being influenced by political pressure, or by pressure from other parts of the Justice Department, then that is a serious matter.

Looking at the Kavanaugh matter, though, I simply don’t see the grounds for impeachment. For one thing, things that the Justice may have done when he was a teenager nearly 40 years ago don’t strike me as a proper ground for impeachment for the “high crimes and misdemeanors” that the Constitution requires. This isn’t to say that nothing a Judge, Cabinet official, or President may have done in the past could not, in theory, could be a ground for impeachment, but to say that in this particular case the allegations made against Kavanaugh are not sufficient to meet this standard, especially since the proof supporting the allegations do not rise much beyond the “She said, he said” stage.

As I pointed out in an update to my original post about these new allegations it is worth noting that the woman allegedly involved in the second Yale incident that Bill Stier says he witnessed has refused to speak to reporters and stated that she has no memory of such an incident happening while she was at Yale. Additionally, Stier himself has said he is not interested in speaking further about the matter since he believes he performed his civic duty when he advised the Senate Judiciary Committee about what he knew last year before the final vote. Add to this the fact that the other allegation against Kavanaugh by Dr. Christine Blasey Ford are not supported by any contemporaneous corroborating evidence (even her best friend at the time is saying publicly that she does not believe events happened as Blasey Ford remembers them) and it seems obvious that impeachment would be entirely inappropriate.

FILED UNDER: Congress, Donald Trump, Law and the Courts, Politicians, Supreme Court, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Daryl and his brother Darryl says:

    Democrats on Capital Hill are feckless cowards. Period.
    Trump is tearing apart the Institutions of our Republic, and the Democrats are standing by watching. America is under attack from without and within, and the attack is facing no opposition.
    Kavanaugh is but a symptom of the disease.
    History will look back on this period as one of lawlessness on the part of Republicans, and wonder why the Democrats did nothing but watch from the sidelines; write some sternly worded letters, and shake their fists in the air.
    Pelosi, Nadler, Schiff, Schumer…they are all failing the Republic – Tweeting while Rome burns – and they all need to go.

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  2. Jay L Gischer says:

    Kavanaugh appears to have bald-facedly lie about “Want a date, call Renate” while under oath. That doesn’t concern you?

    You’ve said earlier this week that you think he lacked judicial temperament. I guess that also doesn’t reach impeachable standard for you?

    On the other hand, impeachment isn’t a legal process, it’s a political one. The support for it isn’t there, so it’s off the table. We need to focus on getting rid of Trump, and the support for impeaching him isn’t there, either. So, the thing to do is keep working at that, keep chipping away. It’s not a matter of courage or cowardice, but of patience and determination.

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  3. Daryl and his brother Darryl says:

    @Jay L Gischer:
    You can worry about politics, or you can worry about the Constitution.
    And while everyone is worried about politics, and their jobs, the Constitution is being shredded.
    Trump tells his people not to respond to subpoenas, weakening Congress, and Congress does NOTHING.
    Feckless cowards.

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  4. Daryl and his brother Darryl says:

    In reference to Kavanaugh, specifically; it’s worth noting that 40% of Republican Justices are credibly accused of sexual assault.
    Stay classy, Republicans.

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  5. Timothy Watson says:

    @Daryl and his brother Darryl: But no worries, right, because Beto and Kamala Harris are going to confiscate guns in violation of Articles I and II, and the Second and Fifth Amendments. Meanwhile, Sanders and Warren are going outlaw fracking in the entire nation their first day in office, in violation of Articles I and II and the Fifth Amendment.

    Meanwhile, Howard Dean is claiming that Democrats can “rotate[] off” any Supreme Court justices they don’t like to district courts because his reading of the Constitution doesn’t guarantee lifetime appointments to the Supreme Court. (Spoiler: It does.)

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  6. Jay L Gischer says:

    @Daryl and his brother Darryl: In a really brutal lesson learned from John Yoo and the Bush Administration it was clearly demonstrated that we only have rule of law if our politics supports that.

    I support that, therefore I support a political strategy that supports it. There is no “high road” here where we ignore politics and just advocate for “what is right”. Opinions differ on what is right, that’s the exact problem.

    The case against Kavanaugh is far weaker than the case against Trump. Prioritize.

    That said, I’m kind of fine with Dem presidential candidates calling for his impeachment. Hyperbole goes with that territory. I don’t especially like it, but it really seems to work with most voters.

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  7. Daryl and his brother Darryl says:

    @Timothy Watson:
    You sound just like @Paul L; posing a false equivalence between what a bunch of back-benchers are saying (none of which will never happen) and what an actual POTUS is actually doing.
    The POTUS and his toadies are putting him above the law…and no one is stopping him.

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  8. Daryl and his brother Darryl says:

    @Jay L Gischer:

    The case against Kavanaugh is far weaker than the case against Trump. Prioritize.

    I’m in total agreement. But doing nothing is not prioritization, it is only doing nothing.

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  9. Timothy Watson says:

    @Daryl and his brother Darryl: lolwhut

    Warren, Sanders, and Harris are, respectively the second, third, and fourth highest-polling candidates for the democrat nomination right now, but you dismiss any criticism of them by calling them “back-benchers”. That’s in addition to them all three of them being United States Senators, but it’s the Trump-supporters who are a cult, suffering from epistemic closure, according to democrats. Howard Dean is a former Governor and was head of the DNC for four years, and whose 50-state strategy has been the goal of democrats for the past three years, but, yeah, total back-bencher.

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  10. Jay L Gischer says:

    @Daryl and his brother Darryl: Every day Kavanaugh is in the headlines and not Trump is a wasted day. Every hour spent by congressional staffers on Kavanaugh is an hour they didn’t spend on Trump. Every dollar spent by House committees to investigate Kavanaugh is a dollar they didn’t spend on investigating Trump.

    Republicans would love to fight the battle of Kavanaugh instead of the battle of Trump.

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  11. rachel says:

    Every day Kavanaugh is in the headlines and not Trump is a wasted day.

    Trump will be back in the headlines soon enough.

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  12. Jay L Gischer says:

    @Daryl and his brother Darryl:
    I think it’s only fair to tell you that I have a very particular reaction to charges of “doing nothing”.

    I am a programmer by trade, and I’ve played a lot of computer games in my day. It hasn’t been hard at all to go on to forums for your favorite MMO and find people posting stuff about how the company is “doing nothing”. Meanwhile, we’re seeing monthly updates with new content and bug fixes. The opposite of “doing nothing”. What the company isn’t doing is exactly what that one person wants, though. Thus the charge of “doing nothing”.

    I empathize with the programmers in this situation quite a bit. They are probably blasting along, spending long hours and cranking out improvements and bugfixes at a very good clip. (N.B. the general public has a very bad understanding of what “fast” and “slow” look like in programming, which is never as fast as you’d like it to be.)

    So I’m inherently skeptical of charges of “doing nothing”. It seems like more hyperbole, which is everywhere these days. I don’t generally bother to challenge it, that would be exhausting. But if it’s in a conversation I’m actually having with someone …

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  13. Daryl and his brother Darryl says:

    @Timothy Watson:
    I was referring to O’Rourke and Harris.
    What’s Dean running for? What’s his official capacity?

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  14. Daryl and his brother Darryl says:

    @Jay L Gischer:

    So I’m inherently skeptical of charges of “doing nothing”.

    As we type Lewandowsi is making a fool of Nadler’s committee. And Nadler will do nothing about it. Lewandowski will not be fined. He will not be put in jail. Trump will remain, effectively, above the law. And Lewandowski will have the basis of an ad for his Senate race in NH.
    At the very same time Porter and Dearborn are simply ignoring their supoenas. And Nadler will do nothing about it. They won’t be fined and they will not go to jail. And Trump will remain, effectively, above the law.

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  15. Daryl and his brother Darryl says:

    Republicans on the SCOTUS appointed a President who lost the popular vote.
    Republicans in the Senate, who represent a minority of US voters, then stole a SCOTUS seat from a Democratic President elected by a majority.
    And then Republicans in the Senate, who represent a minority of US voters, rammed thru a SCOTUS nominee (the subject of this post) on the basis of an investigation that was obstructed by a President who lost the popular vote.
    AND.
    NOTHING.
    IS.
    GOING.
    TO.
    HAPPEN.
    EVER.
    Corruption is going to destroy this Republic, and Democrats are going to sit idly by while it happens.

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  16. Lounsbury says:

    @Daryl and his brother Darryl: Feckless Cowards apparently means “Not bloody ideological idiots desirous to play Don Quixote and charge at windmills for a fantasy of proving a valorous point via failure.”

    In the non-Chicken Little world, your Republic has survived worse and so long as you win 2020, you will be fine. Scrapped and bruised and perhaps with some wisdom to formalize guards against Presidential corruption with improved independent means to bring action, but fine whatever the Lefty hysterics.

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  17. Daryl and his brother Darryl says:

    @Lounsbury:

    your Republic has survived worse

    Really? What was worse?
    Watergate? Republicans stood up and did what was right for the country. No chance of that happening; the Senate is corrupt.
    McCarthyism? The Senate finally censured him. No chance of that happening; the Senate is corrupt.
    Internment camps? Today we have internment camps, with kids dying, and it’s not even in the news cycle.
    Dred Scott? That was greeted with “unmitigated wrath from every segment of the United States except the slave holding states”, and ultimately contributed to the Civil War. You guys look at the corruption in the Senate and the WH and the SCOTUS today, and go ¯_(ツ)_/¯ …not unlike Neville Chamberlain.
    The width and breadth of the corruption in our government today is a existential problem. If only someone would treat it that way.

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  18. Daryl and his brother Darryl says:

    OT and Breaking: Exit polls show Netanyahoo losing.
    IF they hold up…IF…it could be seismic.

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  19. Kathy says:

    @Daryl and his brother Darryl:

    I wouldn’t get my hopes up. the Knesset is a mess of small and medium parties, with the medium ones splitting thirty some seats each (out of 120).

    About the best one can hope for is for Gantz to win more seats than Netanyahu, which might give him first crack at forming a coalition government.

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  20. Daryl and his brother Darryl says:

    @Kathy:
    Yeah…honestly, I do not know enough about how that system works. I have the same problem with the UK’s Parliament.

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  21. Kathy says:

    @Daryl and his brother Darryl:

    When you look into it, you really appreciate Churchill’s quip that democracy is the worst form of government, except for all the others.

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  22. Lounsbury says:

    @Daryl and his brother Darryl: Get a grip.

    Civil war.
    Deep and open corruption of the Gilded Age, far beyond Trump
    Depression

    Many, many worse moments. Stop wetting your breeches. It’s not a bloody existential crisis you pants wetting git.

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  23. Daryl and his brother Darryl says:

    @Lounsbury:
    Again..in all those cases people stood up and did the right thing.
    For instance…Gilded Age…Congress did their job. Held people to account and passed laws.
    There is no one, today, stepping up to stop the corruption. Republicans in Congress are part of the corruption. Republicans on the SCOTUS are part of the corruption. The DOJ is corrupt. Obviously the WH is leading the corruption.
    But go ahead….¯_(ツ)_/¯ you git.

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  24. Moosebreath says:

    @Daryl and his brother Darryl:

    “For instance…Gilded Age…Congress did their job. Held people to account and passed laws.”

    Not for the first few decades.

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