Some time ago we got a cockamamie plot from the left that was supposed to remove Justice Gorsuch, make Paul Ryan president, have him select Hillary Clinton as his VP, and force him to resign. Where Hillary would then appoint Barack, Michelle, Merrick, or the Horny Hick to the Supreme Court.
While the left may have come off the histrionics as they relate to Trump’s legitimacy and his authority to nominate judges, there is still the sense that anything Trump does must be opposed or reversed.
Ellison masks his intentions by feigning deference to constitutional restrictions on impeaching judges. He says that should the Democratic Party regain control of the house and senate, they would still need to find evidence of corruption or “something like that.”
While he is correct in the literal sense, the problem is that the democrats have already been convinced that corruption exists. It’s an eventuality for them. As Senator Blumenthal already mentioned, Trump picked Kavanaugh because he will protect Trump from indictment (or so they claim, never mind that Christopher Scalia debunked this distortion of an opinion by Judge Kavanaugh).
Kavanaugh is corrupt because Trump appointed him. That’s it. If the Democratic Party controls both houses of congress, the facts of the case are irrelevant.
The framers made it clear that justices were not to be removed for capricious reasons. There was some debate as to the scope of the judiciary’s insulation from the political processes and accountability.
The Anti-Federalists believed that “there is no authority that can remove them from office for any errors or want of capacity.” They lamented that wickedness masked by error would insulate judges from political and legal accountability.
Hamilton argues in Federalist 79 that such accountability would give “scope to personal and party attachments and enmities, [rather] than advance the interests of justice or the public good.”
If Supreme Court justices were to be removed for anything other than law breaking, we’d be removing them all the time. While the definition of “during good behavior” is malleable, both the anti-federalists and later congresses understood it to match the criteria mentioned in Article II. Judges are considered civil officers. They can only be removed for misconduct.
There is an excellent article that delves into this subject, though it was written in the context of judicial mental capacity.
Some of you may note that I have previously entertained notions of impeaching federal judges. I make this exception because lower courts are established by congress, not by the constitution. I’ve also never claimed that a judge should be impeached for bad decisions alone, but rather for decisions that threaten the very structure of our constitution. But even I understand that my view of what is constitutionally permissible is different from that of a liberal and therefore it is an impossible standard to create when we have political differences. Impeaching federal judges is only politically acceptable in a constitutional utopia. Good constitutional behavior is a nice thought, but unfortunately, it’s not the accepted standard for removing judges. It’s “good behavior,” which while we’re talking about the head of the judicial branch, we’d better not get it wrong just to score political points.
So I am all for trying out a couple of threats of impeachment directed at rogue federal judges, if for no other reason than to get them to recognize congress’ predominance. I am not for storing up political grievances in order to undo a President’s legacy by impeaching his appointments to the Supreme Court.
Did Keith Ellison say he wants to impeach Kavanaugh if he’s seated? Not exactly.
Can we expect that this possibility will be brought up should the democrats regain control? You bet.