FILE – In September 27, 2018, filmed image, Supreme Court witnesses Brett Kavanaugh before the Senate Court Committee at Capitol…
Before the Supreme Court Justice Brett Kavanaugh swore in, critics demanded his persecution. The political polarization of accusations that he had attacked Christine Blasey Ford when they were teenagers did not show much signs of diminishing.
Impeachment is a polarizing process in itself, but one as many Democrats seems unpleasant to drive if they win control of Congress in next month’s elections. Without two-thirds majority in the Senate, impeachment would be sentenced to fail, anyway. But a democratic congress and a future democratic president could still remove Kavanaugh from the Supreme Court if they wanted to condemn him. There are two other ways to kick a sitting justice outside the court – none of them require a superiority.
In the first place, a new president would nominate and the Senate would by majority decision confirm a fairness – in this case, Kavanaugh – to another post at an intervening court of appeal (say the DC circuit, where Kavanaugh used to serve). Justice would in fact be drawn.
The move is certainly unmatched at the highest court level. But it finds support in one case in 1803 the highest court called Stuart v. Laird. John Adams fading federal party had created 16 new federal judges in 1801 – in part to save the supreme court’s trials from having to “drive the circuit” and hear regional appeal cases. Thomas Jefferson’s Democratic Republicans triumphed at the polls and abolished the new positions in 1802. A trialist who had a case before one of the defensive judges sued.
The Supreme Court unanimously rejected its challenge. Critically, the court also expressly confirmed a part of the Democratic Republican intervention that forced the trialors to be appealing against their will.
The Stuart decision reflects the broad power of Congress to structure “any department”, including the federal courts. Stuart also suggests that individuals have no right to a certain set of legal data. This principle was applied in Stuart to the Supreme Court Justice. And it’s hard to see why justice can be required by law to sit on a circuit some of the time but not all the time (which would be the case if Kavanaugh was effectively demoted).
But Satisfactory for Democrats In the short term, an exercise of Stuart power would create a destabilizing precedent. It is easy to imagine any change in the party control of the congress and the courts that lead to dramatic changes in federal court officials.
This leads us to the second alternative approach to alleviate justice for his or her duties. In a 2006 article in the Yale Law Journal, two researchers (conservative, as it happens), Saikrishna Prakash and Steven D. Smith gathered historical evidence that Framers understood the “good behavior” standard to be legal rather than just political, enforceable.
They pointed out that judicial review procedures were used in English law in the 1780s and were included in the Constitution of New York, South Carolina and Massachusetts before 1787. In addition, they noted that “good conduct” was included in the continental congress as a standard in 1787 Northwest Order for Courts in Territories – Before there was a separate house and senate to perform an impeachment.
As proposed in the Yale article, Congress would be able to approve a charter that approves a specially designed bench of federal judges – say five randomly drowned judges – to determine if a particular judge (here Kavanaugh) had violated the standard ” good behavior “. The special bench can hold an ear and, if convinced by the evidence, make the necessary result to trigger distance from the bench. This approach would not require a congress’s super majority. It would need a president’s signature.
Current federal law contains a trace of this mechanism. When a judge is convicted of crime, whether it is a state or federal court, the law states that he or she “does not hear or decide matters” unless a court ruling decides otherwise. To ensure that the referee keeps a salary in time. But the referee is effectively sidelined – altogether as if he or she became illegal.
The creation of a new vehicle for judicial review is an optimal opportunity, as it would create a non-partisan processionally robust unit for disciplinary judges.
The Supreme Court Justice at the moment has no real supervisors regarding ethics and impeachment has come to work too much partyisan. A standing body, available for all cases of irregularities – not just a ticket for a single trip – would solve that problem, no matter who the appointment president.
A little good has come from the Kavanaugh confirmation process. But Kavanaugh opponents have a rare chance to push for a positive institutional change when pushing their immediate agenda. If the political stars are adjusted, something that is good for our constitutional democracy can derive from their efforts: a better way to discipline mortal federal judges.
– Huq is Frank and Bernice J. Greenberg Professor of Law at the University of Chicago. He is co-author, with Tom Ginsburg, of the forthcoming book “How to Save a Constitutional Democracy”.