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With Ethics Charges Dropped, Impeachment Remains The Only Way To Hold Brett Kavanaugh Accountable

The House now MUST take up this issue, if it is to be taken up.

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(Photo By Michael Reynolds-Pool/Getty Images)

House Democrats are not going to like me saying this, but I’m going to need them to do their jobs now.

On Friday, the Tenth Circuit denied appeals over its decision to boot 83 ethics complaints filed against Brett Kavanaugh. The court had previously held that the complaints had to be dismissed, because it had no authority to hold a sitting Supreme Court justice accountable. The Tenth Circuit upheld that theory. From The National Law Journal:

The judicial council voted 6-1 to reaffirm its decision that an “intervening event”—Kavanaugh’s elevation to the Supreme Court—deprived it of jurisdiction to review 83 ethics complaints filed before and after Kavanaugh’s confirmation in October. Supreme Court justices are not governed by the conduct rules that govern federal trial and appeals judges.

“As explained extensively in the underlying order, a Supreme Court justice is not a covered judge,” the majority, including Chief Judge Timothy Tymkovich, said in its order Friday. “The lack of jurisdiction over Justice Kavanaugh precludes an investigative and fact-finding process, even over conduct allegedly committed while Justice Kavanaugh was a covered judge.”

It is important to emphasize that the Tenth made no ruling on the merits of the complaints. Most of the complaints stem from Kavanaugh’s repeated lying during his old confirmation testimony in 2004 and 2006. The Circuit court did not exonerate Kavanaugh, nor did it determine that he shouldn’t be punished for lying. It simply said that it does not have the authority to hold him accountable, given that he has now been elevated to the Supreme Court.

The Tenth Circuit is certainly right, from a Constitutional perspective. Chief Justice John Roberts might be toying with the idea of instituting a code of conduct for Supreme Court justices, but as of now, no such code exists. No body has the Constitutional authority to hold a sitting Supreme Court justice accountable for perjury.

Except for the United State Congress, through the mechanism of impeachment.

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Impeachment and removal of a Supreme Court justice works just like it does for a president or for any federal official. The “impeachment” charges are brought in the House, through a simple majority vote. The trial is conducted in the Senate where there needs to be a 2/3rds majority for conviction and removal from office.

Given the current make-up of Congress, Democrats in the House can start the ball rolling on their own steam, without support from Republicans. Impeachment charges are now the ONLY WAY to have a real “investigation” into Kavanaugh’s misdeeds. Regardless of where you stand on the attempted rape allegations against Kavanaugh, that he lied under oath is, or should be, a devastating charge on its own. Impeachment is the only way to have an investigation into those lies. Impeachment is the only way to hold him accountable for those lies. Impeachment is the only way to send a signal to other potential Supreme Court nominees that lying under oath will not be tolerated.

Impeachment of Brett Kavanaugh is now the JOB of Congress. It’s not a political tactic, it is a Constitutional requirement of their office.

Unless lying under oath just doesn’t matter to Congress. In which case, like, why is Michael Cohen going to jail? Why does Michael Cohen get three-and-a-half years for lying to Congress while Brett Kavanaugh gets to be on the Supreme Court for the rest of his life?

If Democrats in Congress didn’t want to get into the “messy” political thicket of upholding the Constitution, they shouldn’t have run for office.

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New Dismissal of Kavanaugh Ethics Claims Divides 10th Circuit Panel [National Law Journal]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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