Does the Senate have an argument to make for impeaching Kavanaugh? Although the term “high Crimes and Misdemeanors” is not exactly a model for the kind of precise drafting that contemporary law requires, it’s clear enough to exclude certain kinds of cases that Kavanaugh’s most vociferous opponents might want to make against him. The raging, partisan screed that served as his opening statement last week has many questioning his judicial temperament, but that’s a problem to consider before giving him a lifetime appointment—not grounds for removal, even if he dials the anger up to 11 once he’s on the bench. Similarly, even if he immediately becomes the fifth vote to overrule Roe v. Wade, well, that’s too bad for those hoping to oust him—even if he dissembled about how he might rule on abortion during the confirmation process. Justices are free to rule as they wish, no matter what they might have indicated (or, increasingly, refused to indicate) during questioning.
The one case involving the Supreme Court supports the conclusion that sitting justices should not be removed from office for anything but the most serious criminal conduct. In the Samuel Chase case, President Thomas Jefferson led the call for impeachment, ostensibly because of rulings Chase had made while sitting on a lower court—but really because he had sharply criticized the president in connection with one proceeding, before a grand jury. (Chase famously opposed Jefferson during his presidential run, at one point leaving the bench without a quorum in order to “canvass Maryland” against him.) The Senate could muster only a bare majority (19-15) for his removal, rather than the required two-thirds, and the template against this kind of political removal was thereby set.