Democrats can overthrow Kavanaugh in two ways – without dismissing him

Aziz Huq, the Washington Post

published

6:48 PDT, Thursday, October 18, 2018

Before Supreme Court Justice Brett Kavanaugh was sworn in, critics demanded his dismissal. The political polarization surrounding allegations that he assaulted Christine Blasey Ford in adolescence shows little sign of weakness.

Dismissal is a polarizing process in itself, even though many Democrats do not seem inclined to sue if they manage to control Congress in next month's elections. Without a two-thirds majority in the Senate, impeachment would be doomed to failure anyway. But a Democratic Congress and a future Democratic president could still remove Kavanaugh from the Supreme Court if they wanted to, without having to challenge him. There are two other ways of dismissing a sitting judge of justice, but neither of them requires a qualified majority.

In the first case, a new president would be appointed and the Senate would confirm by majority vote a judge – in this case Kavanaugh – to a different position within an intermediate court of appeal (eg , the circuit of the Supreme Court, where Kavanaugh previously practiced). Justice would indeed be downgraded.

This decision is unprecedented at the Supreme Court level. But she finds support in a case of the Supreme Court of 1803, Stuart c. Laird. The declining federalist party of John Adams had created 16 new federal magistrate positions in 1801 – partly to prevent Supreme Court judges from "riding the circuit" and hearing regional appeals. The Democratic Republicans of Thomas Jefferson triumphed at the polls and abolished the new posts in 1802. A party who was suing was sued.

The Supreme Court unanimously rejected his challenge. Critically, the court also explicitly confirmed part of the intervention of Republican Democrats who forced judges to sit as appeal judges against their will.

The Stuart decision reflects the broad power of Congress to structure "any department," including federal courts. Stuart also suggests that individuals have no vested right to any particular set of legal obligations. This principle was applied in Stuart to the judges of the Supreme Court. And it is difficult to see why the law can force judges to sit on a circuit court, but not always (which would be the case if Kavanaugh was indeed demoted).

If satisfying for the short-term Democrats, the exercise of Stuart's power would set a destabilizing precedent. It is easy to imagine that any change in congressional and court control by the party brings about drastic changes in the personnel of the federal courts.

This brings us to the second alternative method of relieving a judge of his duties. In an article published in 2006 in the Yale Law Journal, Saikrishna Prakash and Steven D. Smith, two scholars (conservatives, as it happens), gathered historical evidence that editors understood that the standard of "good behavior" was judicial, rather than political. enforceable.

They pointed out that the procedures for judicial revocation were used in English law in the 1780s and were included in constitutions prior to 1787 in New York, South Carolina and Massachusetts. In addition, they noted that the Continental Congress had included the "good behavior" in the North West Ordinance of 1787 for the Territorial Courts – prior to the establishment of a House and Senate. a separate Senate to proceed with the dismissal.

As proposed (broadly) in the Yale article, Congress could pass legislation allowing a specially constituted tribunal of federal judges – say five judges chosen by lot – to determine whether a particular judge (here Kavanaugh) had violated the criterion of "good conduct". This special bench could hold a hearing and, if satisfied by the evidence, draw the necessary conclusion to trigger his resignation. This approach would not require a qualified majority of the Congress. It would take a presidential signature.

The current federal law contains a record of this mechanism. When a judge is convicted of a crime, whether in a state or federal court, the law now states that he "does not hear or decide the cases." ", unless a board of judges decides otherwise. To be sure, the judge keeps a salary in the meantime. But the judge is actually put aside – as completely as he was dismissed.

The creation of a new vehicle for judicial peer review appears to be the optimal option, as it would create a non-partisan and procedurally rigorous device for sanctioning judges.

At present, Supreme Court justices have no real supervisor in matters of ethics and dismissal has become excessively partisan. A permanent body, available for all cases of misconduct – not just a ticket for a ride – would solve this problem, no matter the designated president.

The Kavanaugh confirmation process did not bring much good. But Kavanaugh opponents have a rare chance to lobby for positive institutional change as they insist on their immediate agenda. If political stars align, their efforts could give something positive to our constitutional democracy: a better way to discipline wandering federal judges.

– Huq is Frank and Bernice J. Greenberg Professor of Law from the University of Chicago. He is co-author, with Tom Ginsburg, of the forthcoming book "How to Save a Constitutional Democracy".