How to dismiss Supreme Court Justice Brett Kavanaugh without charge

In 2006, many years before Christine Blasey Ford publicly accused Supreme Court candidate Brett Kavanaugh of attempting to rape her while they were both in high school, the Yale Law Journal published a provocative article.

The newspaper "How to Remove a Federal Judge" from law professors Saikrishna Prakash and Steven D. Smith sets out a road map for, thus, how to dismiss a federal judge without resorting to the power of impeachment. He argues that a provision of the Constitution stipulating that judges and federal judges "must perform their duties in good conduct" is largely misunderstood.

Contrary to the "virtually unchallenged assumption of constitutional law jurists that dismissal is the only way to dismiss a federal judge," Prakash and Smith argue that the term "good behavior" is a legal technical term that would have been understood by the founding generation. permit the dismissal of judges by "judicial process".

Prakash, a professor at the University of Virginia, is a former law clerk of Justice Clarence Thomas. Smith, a professor at the University of San Diego, frequently contributes to conservative and libertarian publications. So even if the document did not precede the Kavanaugh hearings for more than ten years, it would be hard to argue that it was published in order to lay the groundwork for a liberal victory over a conservative Supreme Court judge.

The document, which has been published in one of the most prestigious journals of the legal academy but has so far had little impact on public policy, could become important if the Democrats are able to do so. seized Congress and the White House in the 2020 elections.

On Saturday, the New York Times released a report corroborating the charges against Kavanaugh.

According to the Times, his reporters "found Dr. Ford's allegations credible during a ten-month investigation" and that "at least seven people" corroborated a second allegation, by Deborah Ramirez, a comrade Yale, Kavanaugh, claiming that Kavanaugh had "dropped his arms pushing his penis to Ramirez without his consent." He denied both allegations.

The report also revealed new allegations that Kavanaugh would have attended an evening in a drunken student room "during college" where friends put his penis in the hand of a student. student "- although this third story is attributed to an alleged eyewitness and that" the student refused interviewees and friends say that she does not remember the episode. "

The Times report, adapted from the forthcoming book Brett Kavanaugh's Education: An Inquiry, called for the removal of Kavanaugh, including at least four candidates for the presidency.

But dismissal is a paper tiger. To impeach Kavanaugh by impeachment, two-thirds of the senators present at such a vote should vote against Kavanaugh. And the Senate is badly presented to favor Republicans – in the current Senate, Democrats represent about 15 million additional people, but Republicans control 53% of seats.

In other words, unless there is a historic political realignment, there is virtually no chance of 67 senators voting for Kavanaugh's removal. But if Prakash and Smith are right about the good conduct clause of the Constitution, it will not necessarily be necessary.

What's a "good behavior?"

The argument put forward by Prakash and Smith is that a public servant appointed for "good behavior" can keep his position indefinitely, but that a public servant who misbehaves can be dismissed through ordinary legal proceedings.

Misbehavior, they say, has been widely understood by the English courts and by the first Americans. This may include "conviction for an offense that would make the convict unfit to occupy a public office", but may also include much less serious offenses. Both professors cite the eminent 17th century jurist, Sir Edward Coke, to assert that wrongdoing may also include "an abuse of office, non-use of office and refusal to perform a function" .

For this reason, Prakash and Smith argue that it is a mistake to consider the Constitution as preventing a judge from being removed from office, except by indictment. They note that the Constitution only allows indictment of civil servants for "treason, corruption or other crimes and major offenses". However, the term "good behavior" was intended to permit the removal of a public servant for much less serious offenses. Therefore, invoking this term in the Constitution suggests that federal judges may also be dismissed by a process other than dismissal.

To prove their assertion that the term "good behavior" allows the dismissal of civil servants in the context of a judicial procedure, the teachers cite a set of English cases that corroborate their arguments. They cite earlier state constitutions suggesting that the "good conduct" procedure can be concluded through legal process – the 1776 Constitution in Maryland, for example, provides that judges "hold their commissions for good conduct, not being able to be revoked only for misconduct, Court of Justice. "

They quote the future President John Adams, who said in a debate with a contemporary that a judge sitting in good conduct could be dismissed after "a hearing and a trial, as well as the opportunity to defend himself before a more complete advice, knowing his accuser and his accusation ". And, in what is probably their only most convincing piece of evidence, they cite an Act of Congress in 1790 providing that judges convicted of bribes "will be forever disqualified for performing any honorary duties." , trust or profit in the United States "even though no impeachment has occurred.

Prakash and Smith conclude by suggesting congressional acts that would allow judges to be dismissed without charge, including a law automatically removing judges convicted of certain offenses, from a separate judicial process designed to remove the judges accused of being charged. misconduct by the Department of Justice, and another enabling an internal review board by which federal judges control theirs.

Would the courts allow one of theirs to be removed without charge?

The argument of the two professors is at least not accepted universally by scholars. Indeed, the same year, Prakash and Smith published their article in the Yale Law Journal, the Journal also published a response from Northwestern law professor Martin Redish, who challenges their definition of good behavior.

In his article, Redish warns of "the extremely problematic effect that [Prakash and Smith’s] the proposed interpretation would have the vital role that federal judicial independence necessarily plays in preserving the foundations of our political and constitutional structure. "

But Prakash and Smith also strongly refute this criticism: "Any referral procedure authorized by Congress should be conducted by a tribunal with all the traditional judicial guarantees." In other words, judicial independence would be protected by the fact that Judiciary would ultimately decide which judges are dismissed.

Such a process is not uncommon in the United States. The former Chief Justice of Alabama, Roy Moore, for example, has been deprived of his judicial responsibilities twice by a special court hearing complaints against state judges.

A different criticism of Prakash and Smith – and which I find personally convincing, at least in the abstract – is that the stability of the law is important. Whatever the English courts were able to do in the 17th century or the Congress did in 1790, the seemingly uninterrupted practice of two centuries of American history is that judges can only be removed by indictment. Is it really logical to reject such an established norm because two intelligent law professors have found centuries-old legal documents?

In a letter of 1826, James Madison explained why, as president, he had not vetoed a law establishing the second largest bank in the United States after claiming that the first bank of this type was unconstitutional. Madison wrote that the acceptance of the first bank by the officials and the American people constituted "a construction of the Constitution by the Nation, which gave it the supreme right to declare its meaning." A similar logic could be applied to the Constitution. standard against dismissal of judges without charge.

But the days when civil servants remain in their hands, simply because the standards in force advise them, seem to be over. It was not long ago that there was a standard stipulating that Supreme Court candidates should be heard, that Congress should not use the debt ceiling to obtain concessions from the president, or Filibusters should only be used rarely.

In other words, the question for Democrats is not whether governance standards must be respected in the United States – this is clearly not the case. The question is whether the Democrats want to defeat an additional standard in order to dismiss a judge whom they consider particularly odious.

Since the courts must accept any attempt to impeach Kavanaugh without charge, it is possible that any effort to do so will fail. Nevertheless, it is also possible to imagine a scenario in which the judiciary would decide that it is better to remove Kavanaugh from office than to allow him to remain at the top of the justice system.

Suppose prosecutors demonstrate that a judge has perjured his confirmation hearing – a crime that is, it is true, very difficult to prove – and he is sentenced to a term of imprisonment. If he can only be dismissed through the impeachment process, which would mean that he would still be a member of the Supreme Court even while he is serving his sentence.

How would the basic functions of the Supreme Court, such as the conferences where the nine judges would meet in a room to decide which cases to hear, would continue to function when one of those judges is behind bars? And once justice is done, will the federal courts really want to endure the sight of such a man who takes stock of the fate of other defendants?

In other words, Congress could enact a law similar to the 1790 law mentioned in the Prakash and Smith document, which disqualifies federal judges who have been convicted of certain crimes that call into question their integrity as a judge. . And if Congress decides to follow this path, the two professors' paper will provide the Department of Justice with the necessary arguments to defend such a law in court.