How to remove Brett Kavanaugh without impeaching him

[TygrBright]

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.

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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.

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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.

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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