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Tue Sep 17, 2019, 12:46 PM

How to remove Brett Kavanaugh without impeaching him

An excellent explainer from Vox:

The paper, “How To Remove a Federal Judge” by law professors Saikrishna Prakash and Steven D. Smith, lays out a road map for, well, how to remove a federal judge without resorting to the impeachment power. It argues that a provision of the Constitution stating that federal judges and justices “shall hold their offices during good behaviour” is widely misunderstood.

...

Barring a historic political realignment, in other words, there is virtually no chance that there will ever be 67 senators who will vote to remove Kavanaugh. But, if Prakash and Smith are right about the Constitution’s good behavior clause, there won’t necessarily have to be.

...

They quote future President John Adams, who said in a debate with a contemporary that a judge serving during good behavior may be removed after a “hearing and trial, and an opportunity to defend himself before a fuller board, knowing his accuser and accusation.” And, in what is probably their single most persuasive piece of evidence, they quote a 1790 act of Congress providing that judges convicted of taking bribes ”shall forever be disqualified to hold any office of honour, trust or profit under the United States,” even though no impeachment may have occurred.

...

Suppose that prosecutors showed that a justice perjured himself at his confirmation hearing — a crime that is, admittedly, very difficult to prove — and he is sentenced to some amount of time in prison. If he can only be removed via the impeachment process, that would mean that he would still be a member of the Supreme Court even as he serves out his sentence.


It's an interesting argument and one that, if Democrats decide cleaning up the judiciary is a worthy goal, could facilitate that process - over the long haul.

None of this is a quick fix.

The quickest fix I can think of is for the new Democratic President to decide that the Supreme Court needs only SEVEN justices to undertake its Constitutional responsibilities, and gets the support of Congress to reduce the number to seven.

Last added, first removed.

There are some excellent arguments to be advanced in favor of reducing the size of the Supreme Court- much more logical and adminstratively, legally and even judicially defensible than increasing the size of the Court.

Either way, making symbolic attempts to impeach an official who will not then be removed from office has its appeal- I'm fully aware of the power behind the argument that the process itself may tip a balance in favor of having enough of his colleagues decline to defend him, remove their support from him, and possibly negotiate a resignation by him. And the moral power of doing the right thing even if the net effect is zero.

But the judiciary, like the electoral process, has been seriously degraded, corrupted, and disorganized by the GOP. Cleaning it up system-wide is just as important a goal as cleaning up the electoral process.

thoughtfully,
Bright

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Replies to this discussion thread
Arrow 18 replies Author Time Post
Reply How to remove Brett Kavanaugh without impeaching him (Original post)
TygrBright Sep 2019 OP
dawg day Sep 2019 #1
bucolic_frolic Sep 2019 #11
apnu Sep 2019 #2
Fiendish Thingy Sep 2019 #3
lame54 Sep 2019 #4
Anonymous Bosh Sep 2019 #18
brooklynite Sep 2019 #5
NewJeffCT Sep 2019 #6
lunatica Sep 2019 #7
Nasruddin Sep 2019 #8
onenote Sep 2019 #10
marble falls Sep 2019 #15
IronLionZion Sep 2019 #16
CaptYossarian Sep 2019 #9
Captain Zero Sep 2019 #13
CaptYossarian Sep 2019 #14
Captain Zero Sep 2019 #12
TwilightZone Sep 2019 #17

Response to TygrBright (Original post)

Tue Sep 17, 2019, 12:55 PM

1. There might be evidence of bribery...

His finances are very mysterious. He had a huge loan suddenly paid off. His parents are rich, but if they paid it off, why lie about it? Also he and wife are living way beyond their means.

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Response to dawg day (Reply #1)

Tue Sep 17, 2019, 03:12 PM

11. Yes, the money issues are the only serious possibility in my view

There is the loan repayment issue. That needs to be investigated and explained. Maybe nothing there.

There are the rumors surrounding his appointment as the result of money changing hands. Again, investigate, but don't believe it till you see it.

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Response to TygrBright (Original post)

Tue Sep 17, 2019, 01:12 PM

2. This is great and all but it requires something we lack

Serious and qualified people working in government.

We simply lack that in America. Look at the Republican party. Not one is serious and competent, on any level -- Local, State, and National. The Democratic party does it better, but there's work to be done here as well. All other parties (Greens, Libertarians, Constitution etc) fail at this metric as well. Indies, who are usually serious and qualified, are too few and have to cling on to one party or another to do anything.

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Response to TygrBright (Original post)

Tue Sep 17, 2019, 01:44 PM

3. Rather than resort to centuries old obscure untested hypotheses by founding fathers

I think the next Dem president with a Dem senate, after passing ambitious legislation for health care etc, should pack the SCOTUS with at least 6 new justices.

Having said that, investigating and indicting Kavanaugh for perjury is still a worthwhile pursuit.

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Response to TygrBright (Original post)

Tue Sep 17, 2019, 01:45 PM

4. Don't remove him before Trump is out

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Response to lame54 (Reply #4)

Mon Sep 23, 2019, 08:42 AM

18. Ooh yeah

Good point!

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Response to TygrBright (Original post)

Tue Sep 17, 2019, 02:31 PM

5. Now, explain what happens the day the Republicans take over...

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Response to TygrBright (Original post)

Tue Sep 17, 2019, 02:34 PM

6. Lower court judges have been impeached multiple times

however, SCOTUS was only 1 time in history and was over 200 years ago. And, Justice Chase was NOT convicted

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Response to TygrBright (Original post)

Tue Sep 17, 2019, 02:41 PM

7. Unfortunately the prevalent gubernatorial miscreants

are acting in the wanton way they are because it’s working great for them. Just defy all laws, customs and mores and simply refuse to leave. Wait the fallout out and they’re home free.

It’s working.

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Response to TygrBright (Original post)

Tue Sep 17, 2019, 03:07 PM

8. Downsize the court

Personally I am in favor of downsizing the court to 0 (I don't think it's ever solved any problems, no matter what "side" you are on).

I point out that the last time there was a "reduction in force" it was done by attrition. If this precedent was followed it means that those last two appointments would likely be with us the longest. I guess, but do not know, that the reason the RIF was done this way was to avoid the sticky language in the constitution that the OP is trying to work with.


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Response to Nasruddin (Reply #8)

Tue Sep 17, 2019, 03:12 PM

10. I guess you never heard of Brown v. Board of Education

or would be happy if same sex marriage didn't have constitutional protection throughout the country.

The Constitution requires that there be a Supreme Court, so your fantasy of the court being reduced to zero is particularly goofy.

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Response to Nasruddin (Reply #8)

Tue Sep 17, 2019, 03:38 PM

15. add to that one ...

Gideon v. Wainwright, 1963 (9-0 decision)

Criminal defendants have a right to an attorney even if they cannot afford one.

New York Times v. Sullivan, 1964 (9-0 decision)

Lawsuits based on libel or defamation must show intent or recklessness.


Miranda v. Arizona, 1966 (5-4 decision)

Prisoners must be advised of their rights before being questioned by police.

Loving v. Virginia, 1967 (9-0 decision)

Invalidated state laws prohibiting interracial marriage.


Roe v. Wade, 1973 (7-2 decision)

Women have a constitutional right to an abortion during the first two trimesters.


United States v. Nixon, 1974 (8-0 decision)

President cannot use executive privilege to withhold evidence from criminal trial.

Regents of the University of California v. Bakke, 1978 (5-4 decision)

Upheld use of race as one of many factors in college admissions.

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Response to Nasruddin (Reply #8)

Tue Sep 17, 2019, 03:52 PM

16. They struck down laws against gay marriage nationwide, and interracial marriage

When states are willing to oppress people's civil or voting rights, it can be escalated to the Supreme Court to strike it down.

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Response to TygrBright (Original post)

Tue Sep 17, 2019, 03:09 PM

9. The easiest way to remove Kavanaugh from anywhere is

to toss a beer in the next room.

It's like Trump with a can of hair spray.

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Response to CaptYossarian (Reply #9)

Tue Sep 17, 2019, 03:15 PM

13. how do you get Trump and Kavanaugh in the same room?

throw in a can of beer, a can hair spray, and a sack of laundered cash.

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Response to Captain Zero (Reply #13)

Tue Sep 17, 2019, 03:37 PM

14. Brilliant.

Maybe add some teenage girls and the date-rape drug.

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Response to TygrBright (Original post)

Tue Sep 17, 2019, 03:13 PM

12. I was wondering last night given his gross misogyny

is there a way to make him recuse from any question involving womens' rights? Might be a way to side rail him in specific cases.

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Response to Captain Zero (Reply #12)

Tue Sep 17, 2019, 04:53 PM

17. If he won't even acknowledge that he has a problem...

he's certainly not going to recuse himself based on that problem.

People seem to forget that to Kavanaugh, it's everyone else that has the problem and they're just out to get him. He's squeaky clean in the mirror.

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