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One year ago, in the face of allegations of drunken sexual assaults in high school and college, then Supreme Court nominee Brett Kavanaugh appeared before the Senate Judiciary Committee and angrily declared that confirmations had turned into a "national disgrace" that "replaced advice and consent with search and destroy."
It was a performance that left most everyone enraged, some for Kavanaugh and others against him. However, Kavanaugh was confirmed, and he promised that he would put the matter behind him. His critics made no such promises. Indeed, various Democratic members of Congress called for continued investigations and even impeachment at the time of his swearing in ceremony last fall.
Now, Justice Kavanaugh has been hit with a new allegation by the New York Times, that he exposed himself at a party at Yale and that reporters found additional corroboration for a similar account raised by former Yale classmate Deborah Ramirez. The news was only a few hours old when Democratic candidates lined up to call for his immediate impeachment, despite little information on the basis or support for the allegation.
Right away, former Housing and Urban Development Secretary Julian Castro essentially called for impeachment simultaneously with the release of the story. He was followed by former Congressman Beto O'Rourke, Senator Cory Booker, and others. Senator Kamala Harris, a former prosecutor, did not wait for evidence, tweeting that Kavanaugh is "an insult to the pursuit of truth and justice. He must be impeached." Senator Elizabeth Warren, a former law professor, was not content with just impeaching Kavanaugh, tweeting that "like the man who appointed him, Kavanaugh should be impeached."
Impeachment has become an article of faith for Democratic candidates who are expected to show no doubt about the guilt of Trump, Kavanaugh, or other figures like Attorney General William Barr. They are expected to impeach them all, and let God sort them out on the merits. During the Kavanaugh hearing, I supported the investigation of allegations while criticizing both Republicans and Democrats for their conduct.
Republicans took steps that undermined a full investigation, including arbitrary deadlines and artificially limited examination of potential witnesses. Democrats showed little willingness to consider the possibility that Kavanaugh could be innocent. Indeed, when Christine Blasey Ford first came forward with allegations of a sexual assault by Kavanaugh as a high school student, Senator Mazie Hirono immediately declared that she believed Ford and told all men to "shut up" and just believe her too.
Hirono was later asked why Kavanaugh should not be entitled to the same presumption of innocence as anyone else. Hirono refused to agree with that principle and said she would "put his denial in the context of everything that I know about him in terms of how he approaches his cases." She said she would consider his "ideological agenda" and her view that "he very much is against women's reproductive choice."
It is hardly surprising, therefore, that Hirono was one of the first to call for impeachment this week without reading any of the new evidence or speaking to any of the new alleged witnesses. She declared that the allegations established, once again, "the serious corroborated allegations of sexual assault by Justice Kavanaugh." Senator Sheldon Whitehouse had already promised to remove Kavanaugh when he was confirmed, stating that it did not matter if he was confirmed because "as soon as Democrats get gavels," the party will investigate and possibly impeach him.
The problem is that there still is more presumption than evidence of guilt against Kavanaugh. Washington public interest lawyer Max Stier made the latest allegation, but the woman involved in the alleged incident is a friend of Ramirez and has said she has no memory of it. Stier reportedly insisted she was intoxicated, as was Kavanaugh. He has since refused interviews and said he wanted his allegation to remain confidential. He gave the information to Democratic senators before Kavanaugh was confirmed, and the FBI was informed of the additional alleged incident.
The allegation is troubling and worthy of investigation, but Democratic leaders again seem to be operating off the evidentiary standard of the Queen of Hearts in Alice in Wonderland: "Sentence first. Verdict afterwards." They have called for the impeachment and removal of a Supreme Court justice on the basis of an act of which the alleged victim has no corroborating memory. Moreover, Stier says two men dragged the woman to Kavanaugh, who allegedly exposed himself, yet neither of those men have come forward. Of course, those men may not be eager to admit a role in such an incident, but no other witnesses from the party have given supporting evidence either.
As the last lead counsel in a Senate impeachment trial, I am indeed chilled by this rush to judgment, particularly by federal lawmakers who must serve as the constitutionally designated jury in any trial. Kavanaugh would have to be impeached by the House first, then removed by a two-thirds vote in the Senate. With the current Republican majority in the upper chamber, that would seem less than likely, though most senators would not prejudge evidence not in the record.
Only one sitting Supreme Court justice has ever been impeached. That was Samuel Chase, who went on to be acquitted and remained on the bench. The last jurist to be impeached was my client Judge Thomas Porteous. Another such jurist, who was impeached and removed from the bench, would likely vote on any Kavanaugh impeachment. That was Alcee Hastings, now a House member, dean of the Florida delegation and vice chairman of the powerful House Rules Committee.
The new allegations obviously could present a threat to Kavanaugh, if proven. Kavanaugh emphatically denied under oath that he engaged in such conduct. While impeachment is usually reserved for acts committed during service, perjury in a confirmation hearing is generally accepted as a basis for impeachment, particularly since Kavanaugh was a sitting federal appellate judge at the time.
The Framers set a high standard for impeachment and removal, to deter politicians from using the constitutional process for partisan gain. While politicians love to cite the poorly considered statement by Gerald Ford that "an impeachable offense is whatever a majority of the House of Representatives considers it to be," there is a standard in the Constitution, and members take an oath to faithfully carry out such duties, including only impeaching on the basis of proven "high crimes and misdemeanors." It is akin to saying that House members are not expressly barred from self-dealing under the Constitution so they are free to pursue openly corrupt practices. Just because something may not be subject to judicial review does not mean that it is countenanced by the Constitution.
Any such investigation must start with the principle that Hirono evaded, which is that Kavanaugh deserves a presumption of innocence. That does not give him immunity or special treatment. To the contrary, he is afforded the same protections that he swore to guarantee, impartially, to all Americans in this country. Impeachment may make for good politics but, without a presumption of innocence, it is little more than mob justice dressed up as a constitutional proceeding.