Friday, September 28, 2018

The House Judiciary Committee

Gerard N. Magliocca

Let's assume that Judge Kavanaugh is confirmed. (Not that I have any inside information on that.) If Democrats win control of the House of Representatives in November, there will surely be pressure brought to bear for the House Judiciary Committee to initiate an impeachment inquiry and, in effect, do the additional investigation that the Senate Judiciary Committee is not going to do. In that inquiry, I would assume that then-Justice Kavanaugh would be subpoenaed. There is, as far as I can tell, no precedent for a Supreme Court Justice to be subpoenaed by a congressional committee.

I wonder if he will comply when the time comes, or how that will affect the work of the Court. For example, a subpoena could be issued for a time during a Supreme Court oral argument, leaving him unable to attend. (Leave aside whether you think he would actually be impeached and put on trial in the Senate.) To what extent would an impeachment inquiry create grounds for a recusal motion in some case or another? (The Justice may need to hire outside counsel for his defense, for instance.)

UPDATE: Josh Blackman points out that Justice Clark was subpoenaed by a congressional committee looking into his conduct as Attorney General, though not for an impeachment. Clark refused to testify on separation of powers grounds, though he did offer to provide written testimony. Craig Alan Smith has an interesting paper on this in the Journal of Supreme Court History.


This is not a criminal court, this is a job interview. One with a lifetime appointment.

In that situation, the burden is on the applicant to make the hirer feel safe in hiring them.


Was Justice Chase subpoenaed? Were any of the District Court judges who've been impeached?

It would be good to have some precedent here, either way.

From a policy standpoint, I don't have a problem with the subpoena of a Justice, particularly one for documents only. That's been the rule for even Presidents since the Burr treason trial (1807).

A subpoena for attendance may raise a different issue, but even there I think the policy supports it. The policy concerns for a President are different: the President is a single officer charged with exercising executive power, whereas a Justice is one of 9. Even these days, most cases don't get decided 5-4, so it's unlikely that the absence of a Justice would affect the ruling in any case. In addition, the Justices have many days when no oral argument is scheduled, plus an entire summer break.

In addition to this, it doesn't make much sense to treat a Justice as somehow immune from process when the House is exercising its constitutionally mandated power to investigate impeachment.


Good God.

Gerard, precisely what Kavenaugh “high crime” or “misdemeanor” would a Pelosi House “investigate?” Impeachment for a “high crime” is a criminal procedure with criminal standards of proof, the least of which are a date, location and statute of limitations. Or are you suggesting extending to the impeachment process the Democrat weaponization of law enforcement using uncorroborated claims as a pretext to conduct fishing expeditions against poltical opponents?

Politically, you Democrats may come to regret this trasparently partsan campaign of slander. At the beginning of this midterm election cycle, as is often the case after a party takes power in DC, GOP voters were self-satisfied and unmotivated to vote. In special elections, Dem voters showed up at midterm levels, while GOP voters stayed home. However, the polling since this Kavenaugh parade of slanders is now showing both party bases are motivated to vote. It would be sweet karmic justice if Democrat slanders were the reason they lost a House well within reach.

Bart, there's considerable commentary that "other high crimes and misdemeanors" extends beyond the commission of statutorily-defined crimes. Furthermore, Art. III sec. 1 states that federal judges "shall hold their Offices during good Behaviour," which seems to indicate that removal of a federal judge is possible for instances of bad behavior not limited to "high crimes and misdemeanors," whatever that does encompass. Indeed, in 1804 Judge John Pickering was removed from the bench on the basis of his bad temper and drunkenness, although he had not committed a crime.

I think "you Republicans" should probably be more worried about potential electoral reprisal for, in Mitch McConnell's words, "plow[ing] right through" the confirmation process to place a man who's been credibly accused of sexual assault, and whose testimony likely included perjury, on the Supreme Court.

For example, a subpoena could be issued for a time during a Supreme Court oral argument, leaving him unable to attend.

Clinton v. Jones suggests that the needs of a president's schedule can and should be respected in that context. The same would apply here. I think this sort of thing can easily be handled, especially given the limited time used for oral arguments.

To what extent would an impeachment inquiry create grounds for a recusal motion in some case or another?

How did this apply in cases of state and federal judges who were impeached?

As to the general matter, especially for acts before their service, it is unclear to me there is some constitutional bar. Justices have voluntarily came in front of congressional committees, such as various tag teams who did so when time was up for dealing with the budget of the Supreme Court. They were at times asked sensitive questions on internal matters such as decision-making regarding clerks.

They might in certain cases refuse to answer, perhaps, such as regarding internal deliberations. In general, if confirmed, the House has every right and duty to investigate credible claims.

"In that situation, the burden is on the applicant to make the hirer feel safe in hiring them."

Indeed, but here the "hirer" is a composite. It may well be that this "applicant" passes the "job interview" by satisfying the hirer that he's met that burden, and then the hirer (differently composed) later feels that the applicant never met the burden. Be that as it may, the hirer will have great difficulty getting rid of him.


No one claims Kavenaugh has displayed anything but the highest level of behaviour as a federal judge. All of these slanders extend back nearly forty years when Kavenaugh was a minor.

Politically, the Dems were fired up by their orgy of Trump hatred. There is no evidence the slanders of Kavenaugh have moved that needle or the cowardly elephants would have caved.

If you haven't figured it out yet, the GOP probably counted votes last week and agreed to a political kabuki dance where they held a hearing for Ford without picking on her and allowed Kavenaugh and Graham to vent, then on cue Flake, Collins, Murkowski and Manchin requested a short “supplemental FBI investigation” lasting no longer than a week followed by a vote. Heck, the Dems may be in on this as well.

Political kabuki theater.


> the highest level of behaviour as a federal judge
> All of these slanders extend back nearly forty years when Kavenaugh was a minor.

Bart, there are plenty of articles about how Kavanugh lied in his previous confirmation hearings. Look it up.

I understand that Kabuki Theatre actors are all men. Is it coincidence that in SPAM's "political kabuki theater" the actors are the all male Republican Senators on the Senate Judiciary Committee? Do I think SPAM is hedging a tad in his 4:13 PM comment that followed his 1:05 PM comment because of the "Breaking News" in the interim? Maybe SPAM will get a H/T from SNL for his reaction.

By the Bybee [expletives deleted, despite Gina], Sen. Lindsey Graham (Cracker, SCar) was sort of a wingman for the late Sen. John McCain, who was at times the conscience of the Senate. Now Sen. Graham is Trump's wingman for real as he has no conscience. Graham suffers from SWMS (Single White Man's Syndrome).

If Kavanaugh is ultimately confirmed, (and it looks very likely at this time in spite of this delay - McConnell parliamentary magic may deliver yet again for the GOP!) a good number of cases landing in the SC may very well have their first line of argument whereby they will quote Kavanaugh's words from yesterdays hearing wherein he cited, without any proof, left wing conspiracies, revenge of the Democrats on behalf of Clintons, attack by left wingers, etc. - and then proceed to demand Kavanaugh's recusal from that case. Kavanaugh has let the 'bag out of the cat' by exhibiting a strong animus towards all on the left of his political perch!

I think Kavanaugh will prove to be one of the most impotent SC Justices not because of what he is accused by the three women, (Clarence seems to have flourished) but by what he inadvertently blurted out during yesterday's hearings.

SC has become politicized, but Kavanaugh's presence on the bench will take it to a level where most of his decisions will be viewed through the filter of the words he spoke yesterday. Sad thing is: I think Kavanaugh believes in what he said.

"Bart, there are plenty of articles about how Kavanugh lied in his previous confirmation hearings. Look it up"

And there are plenty of articles explaining that, no, he didn't actually lie.

Even the extremely hostile Washington Post isn't buying it.

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It just dawned on me why Mitchell conducted a deposition of Ford rather than a cross examination. Mitchell nailed Ford down to her original limited story, which correspondingly limits the facts considered by a “supplemental FBI investigation.”


For the newcomers here, don't waste your time 'debating' with Brett and Bart. They're ideological extremists and/or pure propagandists. They've no interest in something like the truth.

"exhibiting a strong animus towards all on the left of his political perch!"

It was the most pathetic thing I've ever watched, judiciary wise. He painted himself as the most partisan of hacks. This really is all the GOP has left now, there are virtually no principled conservatives left, just ideological, partisan nutjobs. It's filtered into the judiciary now. God help us.

"I think Kavanaugh will prove to be one of the most impotent SC Justices"

If he were anything other than a partisan hack he would have welcomed a full investigation to clear his name. His 'this week has been tough so I can't ask for another' was pathetic.

Mr. W:

It will be fun to see your head really explode when Trump replaces RBG.

"It will be fun to see your head really explode"

This really is the defining thinking of movement conservatism today.

Looking into it, found subpoena regulations that apply to federal judges though the regulations do not apply to "Congressional requests for testimony or documents."

But, it can apply to agencies another other notable situations.

As to the power of Congress to subpoena judges, there was some discussion when Newt Gingrich raised the idea during the 2012 presidential campaign. National Review said "no," Red State "yes" as did American Thinker. To cite conservative publications.

As to history, "It does not appear that the House has ever enforced a subpoena against a sitting federal judge" per a FAS report, if somewhat old.

This article referenced two attempts, Tom Clark and District Judge Goodman.

The second spoke of separation of powers problems if judges are compelled to "testify with respect to any judicial proceedings." But, the subpoena of Kavanaugh seems not to apply to that overall though perhaps it might in some aspect.

Realistically, though it might be useful political theater, a subpoena of a federal judge by Congress would be unlikely to occur. But, new times, new possibilities.

Here is some more commentary on the issue raised by Gingrich.

An impeachable offense is whatever a majority of the House says it is. The House can impeach a judge over a parking ticket if it wishes to.

So Bart's "oh lord this isn't a high crime or misdemeanor" is silly.

James Comey, when FBI Director, was not prepared to give President Trump his personal loyalty. He was fired. Judge K in the course of his testimony on Thursday at the continued Senate Judicial Committee hearing said he was a victim of character assassination orchestrated by Democrats.

"This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups."

Was this heard by Trump as Judge K's personal loyalty to him? Trump was pleased with Judge K's testimony, whereas it is reported he was not pleased with Judge K's performance on Fox earlier. Was Judge K injudicious with these remarks? If Judge K is confirmed, might he as a Justice have to recuse himself in certain cases involving Trump because of the possible perception of bias? Here's a link:

to "Nominee's attack on Democrats poses risk to Supreme Court"
September 28, 2018 5:32 PM EDT
Updated: September 28, 2018 5:31 PM EDT

But recall that the late Justice Scalia declined to recuse himself from a case in which his hunting buddy VP Dick Cheney was involved.



The Constitution grants the House the power to impeach a judge for high crimes. If the House votes to impeach a judge for a traffic ticket, both the Senate and the judge can ignore their unconstitutional act.


How again does Kavenaugh’s correct criticism of Democrat partisan attacks on him because he is a Trump appointee in any way lead to the conclusion he is Trump’s puppet?

Deductive reasoning is most definitely not a Democrat strength.


The Senate can certainly vote not to convict.

Your statement that the judge can ignore it is ridiculous and, frankly, crazy.

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"James Comey, when FBI Director, was not prepared to give President Trump his personal loyalty."

"Personal loyalty"? He wasn't prepared to give Trump his non-insubordination. He refused a direct and lawful order, he should have been fired on the spot. Trump's only mistake in firing Comey was waiting too long.

Just as Trump has tossed out norms of the presidency, Judge K has tossed out norms of nominees to SCOTUS with his Trumpian outbursts during the Committee hearing on Thursday and Judge K's "Like a Virgin" earlier epiphany appearance on the Fox interview that appealed to Revengelicals.

SPAM, of the extreme far right is wrong as SPAM doesn't know the meaning of "correct" in his 10:56 PM comment. Defective reasoning is the strength of whacko Republicans like SPAM and the Committee Republicans who were defective in their decision to use a female prosecutor who failed to break Dr. Ford, and fearing how she started questioning Judge K on sexual matters (probably noting how it was discomforting to Judge K), took the questioning chore back with their series of rants, especially by Sen. Lindsey Graham (Cracker/SWMS SCar).

Who is Sen. Jiminy Cricket? Kathleen Parker at WaPo has the answer.

Brett, what was the direct and lawful order from Trump that James Comey refused? Rub your legs together to respond.

Comey told Trump he wasn't under investigation. He told many members of Congress this, too, we have their testimony on this point. The only people he wasn't telling this to were the public.

Trump gave him a direct order to kill the rumors that he was under investigation by stating so publicly, not just privately. He refused. THAT was insubordination, and he would have been fired on the spot had I been President.

Instead Trump gave him time to conspire against him with all the resources of the FBI at his disposal. Probably the stupidest thing Trump has done yet, in his whole administration.

If Brett were president might China respect him for his large brain? Jiminy Cricket, Brett, are in the ready for 2020? Comey was professional in following policies of the FBI and Justice Dept. But that was not the public reason(s) why Trump fired Comey.

The President's orders are the policies of the FBI and Justice department. And the idea that Comey had any reservations about violating the policy of not commenting on cases and investigations is absurd on its face.

Brett, it's too easy, but I'll say it anyway, you are absurd both literally and figuratively. Can Trump order someone to be shot, say someone who is investigating him in places other than Fifth Avenue? Is the "Take Care" clause in Article II 007 authority in conjunction with Heller's (5-4, 2008) authority for self-defense against people involved in investigations of the President?

But can you provide a cite to Trump's direct order being the reason for Trump's firing of Comey? We know of Deputy AG Rosenstein's letter on Comey. We know of Trump's Lester Holt interview. We know of Trump's statement at a meeting with the Russians in the White House and the "Russia thing."

Walter Nixon v. U.S. held that the impeachment process is a political question [Rehnquist himself was an amateur historian and wrote not only the opinion, but a book on the subject] in the context of determining the proper procedure of the trial itself. Three justices argued there might be some limits in extreme cases.

The majority opinion spoke in broad terms that might in some sense be deemed dicta: "There are two additional reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments."

Now, the Supreme Court might be final as a judge of the case (with means such as amendment, change of statutory law and so on possible) but it is generally seen as proper to provide commentary on their judgment. It is mainly of academic value though might be informative if later judges (or those with power to change the law in the ways cited) are interested in altering things. It also might be informative during the nomination process to pick judges who might change "bad" precedent. Jack Balkin noted the "constitutional change" role here.

But, simply having the raw power to do something doesn't close one to criticism that it is not being done reasonably. A good case has been made, e.g., that the impeachment power is not merely limited to things in violation of the statutory law. Charles Black in his seminal volume argued as much. This provides potential open-ended power to the House. If it can do whatever it wants, why stop at parking violations ("violations" arguably aren't misdemeanors)? People are arrested at times basically because they aren't submissive enough to police.

Carte blanche could allow the House to not even pretend to neutral there. Plus, the House can blatantly make something up. No need to even hide it. They have the raw power to do this, even though it would be a violation of what the average person thinks is the bare obligation of their oaths. The oath [few affirm though a few might for religious reasons, taking Jesus' statement to heart] had some meaning back then -- it was an understanding, backed by damnation by God allegedly, of some basic good faith. Some even today!*

“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

I think this provision, taken as a whole in full context of constitutional meaning, has some content beyond "whatever a majority of the House says it means" just as I think the Constitution means something beyond what five justices at the time says it means. As a matter of raw power, that might be the result, but it is perfectly sound, and normal practice, to provide critical analysis of such things.

A judge isn't going to revoke the impeachment (a blatant case like if the VP presided over a presidential impeachment is largely a thought experiment) but it is proper to debate the point. It can provide political process too on what the parties think their role is. The Constitution has always been understood to have that pressure as part of the system.

And, much literature does debate these things.

* Some who contribute here might have taken the constitutional oath in various contexts themselves. For instance, notaries in my state are executive officials & take the oath per Art. VI. If one works for the post office, they take the oath. Minor state employees etc. An oath is also taken as a juror or as a witness. Such things are at times trivialized as mere ceremonies. Many, however, take their oaths seriously. They are open to some basic reason here, not acting totally politically or what have you.

Check out this delicious link to a Huff Post report:

and click on the CNN video that includes Sen. Lindsey Graham's chat with a reporter yesterday following the Sen. Jeff Flake caused brouhaha with Graham saying he guessed he was the one to explain what happened to Trump, smiling all the while. This should be contrasted with Graham's SWMS rant on Thursday at the Committee's continued hearing when Graham went crackers.

The whole CNN short video is interesting, especially Don Lemon's claim that Graham had "the vapors." Maybe Lydia Pinkham has a remedy for "the vapors." Also Lemon thinks that Graham is seeking to replace Trump's AG Jeff Beauregard. [No jokes about a cracker being replaced by a cracker, please!]

Those curious about "the vapors" might Google Lydia Pinkham for its remedy.

It is not a violation of any oath to construe high crime and misdemeanor to include anything one wants as a high crime or misdemeanor Joe.

Indeed, one reason for the Senate holding the power to try impeachments is PRECISELY that the framers understood there could be all sorts of legitimate political reasons to get rid of a government official.

It is dangerous for anyone other than the courts to be purporting to impose constitutional limits on something like this. The impeachment power has to be total. "High crimes and misdemeanors" just means "something really important".

Don't worship the Constitution. It just distributes power. The only real check on politicians is the public, not that dead document.

Also, the oath is NOT to someone's personal version of the Constitution. It is to court interpretations.

A state legislator in Texas who thinks an abortion ban is unconstitutional nonetheless has taken an oath to obey Roe Casey. That's what obedience to the Constitution means.

This idea that every official should be walking around personally interpreting the Constitution, with no legal qualifications to do so, is scary. Nor do I want unelected law professors and scholars imposing limits- produced by dishonest law office history- on officials.

The public can stop actual abuses of the impeachment process, using whatever standard they wish to. The Constitution is irrelevant except in granting the power.

"But, simply having the raw power to do something doesn't close one to criticism that it is not being done reasonably."

For me, this is the crux of it. In fact, I'd probably go a bit further and say that the Constitution is not so much about "distributing power" as it is about establishing conditions in which fundamental fairness can operate. Congress has many powers that appear to be absolute, but the Constitution -- any Constitution -- can only work on the assumption of norms that can never be listed but must always be observed. It's not reasonable for Congress, in the absence of any casus belli, to declare war regardless of the absolute grant of power. No system can survive bad faith implementation.

"Can Trump order someone to be shot, say someone who is investigating him in places other than Fifth Avenue?"

Did I not say that Comey refused to execute a lawful order? Ordering him to say publicly what he was telling people privately is NOT equivalent to ordering somebody shot. It's a perfectly reasonable, lawful order.

The fact that you had to come out with such an absurd hypothetical just demonstrates that you know Comey's refusal wasn't reasonable.

"But can you provide a cite to Trump's direct order being the reason for Trump's firing of Comey?"

You're not even trying. I criticized Trump for not firing Comey on the spot on that basis, I didn't claim it was his basis for firing him later.

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No system can protect against bad faith either Mark.

In the contexts of Brett's 8:05 AM and 9:01 AM comments and my comments regarding them, it seemed to me that he was at a minimum suggesting the reason why Trump fired Comey. Brett did not expressly claim that, as he noted 1:43 PM. To Brett's credit, he is as elusive as Judge K in his comments. Maybe Brett can cite to such order, as my recollection is that it was a request. Then we can discuss whether it was a lawful order, including the validity of Brett's claim in the first sentence of his 10:03 AM comment. Perhaps Brett's assertion of what he would have done if he were president, i.e., fire Domey on the spot for insubordination, should have served as a warning that Brett was diverting my comment that began his response to the effect that Comey was fired for not committing to being personally loyal to Trump. If Brett were president, is too stupid to imagine.

I agree with Mark Field, but to respond to specific matters.

The "worship" concern is of special note from a critic of religious belief, but I am trying to be realistic about the raw power involved here.

It is unclear what "imposing" is present there. The citation of public pressure overlaps my argument: the public gets to judge if their representatives are credibly doing their jobs. They don't get to go to court as a general matter there.

But, they get to consider the various principles and actual text (e.g, "something important" or whatever isn't the actual text at issue here) of the Constitution. This was done in 1789 and not just by lawyers. And, it can be done today. Also, even "something important" is more than "whatever the House says." But, as Mark Field says, the Constitution does practicably require some basic good faith. So, even Dilan provides the term with some meaning.

Also, the oath is NOT to someone's personal version of the Constitution. It is to court interpretations.

This sort of "judicial supremacy" is argument. There was and is great debate over the proper spheres of power here in some absolute sense.

Anyway, the matter at issue here is a political question & I cited court interpretation on the point. This provides officials specific duty to use their good judgment. As Mark notes, a basic floor is implied there. They do so without necessarily even going to Yale law school even.* The same applies to general legislative practice.

They do have a duty (various checks in place including court review) to faithfully apply the law as understood by the courts there. But, a lot of room of debate there & many are not lawyers. The oath or affirmation is a ceremonial device to provide them that extra push to do so to the best of their abilities. Again, I'm not being refuted here.

I also repeatedly referenced court precedent. Courts however repeatedly also reference practice, expert understanding, current popular understanding and so forth. Professors likewise have no power to 'impose' but they are part of the pool of materials used by courts to apply the law. I feel silly saying this to some in this audience.

The public can stop actual abuses of the impeachment process, using whatever standard they wish to. The Constitution is irrelevant except in granting the power.

The "relevance" of the Constitution is up to the judgment of history.

And, the judgment of history is that the courtroom is not the only place the Constitution matters. The author of the post, e.g., has written a book on the Bill of Rights that shows this. It is written text specifically written to provide a special limited guide to "We the People" in general. In some basic way, it was supposed to be clearly understandable to the layperson, many legislators just of that character.

Certain institutions have special "power" here -- courts, juries, legislators etc. -- but there is a certain general "power" (in a fashion, perhaps to use the term in a different way) of the people as a whole, and the Constitution provides a special guide of sorts there. Some do "worship" it a bit too much, but a realistic accounting is how I mean to apply it here.


* Put aside Harvard. Like getting in there is hard.

"But, they get to consider the various principles and actual text (e.g, "something important" or whatever isn't the actual text at issue here) of the Constitution."

Yes. While no Constitution can prevent bad faith entirely, it can set up a system in which the amount of bad faith necessary makes it unlikely that the system will fail except in unusual cases (e.g., the Civil War). I think that one of Prof. Levinson's goals in urging a new Convention is to strengthen the protections against failure by eliminating or revising the mistakes made at the beginning.

Historians have no say either Joe.

If a great majority of the public want the President impeached on something that isn't a high crime or misdemeanor, and pressure their representatives, it will happen, and historians and constitutional "scholars" will have zero say. Indeed, "what will historians think?" is of zero importance to the public, and properly so.

Similarly, if the President commits the higest crimes and felonies and the public wants to keep him or her, the President is going to stay. The wording of the Constitution and the viewpoint of scholars is literally irrelevant.

Mark, you of all people come here all the time pointing out, correctly, how much Republican bad faith is embedded in the system.

And your beloved Constitution doesn't do diddly squat to prevent it.

The Constitution just sets up a set of rules. Bad rules, for the most part (some of the Bill of Rights and some of the Amendments are good, I will concede), but rules. Rules are useful. But they do nothing to prevent bad faith, because power, and not reason, is what rules the world.

"But they do nothing to prevent bad faith, because power, and not reason, is what rules the world."

Dilan is the realist here while the others are silly idealists ("beloved Constitution" or "worship" etc.) ignoring what is out there. We even have a channeling of Scalia with talk of a "dead" Constitution.

The Constitution is a living document. It is by basic reality, not some sort of blind faith. Its terms don't have meaning on their own. They have meaning in action. Action continues ever on. This is what its writers said and it is what experience shows. This is not idealism. It is imperfect reality.

It is part of a system where bad faith in some imperfect fashion limited as compared to certain alternatives.

Dilan speaks as a true believer absolutist. Things have "no say." History has "no say." This isn't how life actually works. History influences us. It has a "say." Properly so. The use of scare quotes -- amusing from someone who tosses around his expertise -- is duly noted too. In practice, they have a "say." Dilan cites how legislators have a duty to apply established law. Such things influence it. He might be annoyed at their "power" in certain respects. But, that is personal argument.

The public over time are influenced by various things, some helpful, some less so. What they "want" is influenced by those things, including their understanding of history and constitutional text. Various things have "power" over human beings, including the public at large, including religious faith, knowledge, checks/balances influenced by a range of things etc.

This is a realistic view, not one based on "worship" and raw cynicism clothed as realism can blind as much as other paths.

I've been catching up with articles in the NYTimes online.Here are two that I would recommend to read in that order:

"Brett Kavanaugh Loves His Beer - The Supreme Court nominee paired a frothy beverage with identity politics" by Frank Bruni Sep. 29, 2018

"Kavanaugh and the Blackout Theory" "It is both easy and common to drink, act and then have no memory of it." SepBy Sarah Hepola Sep 29, 2018 Ms. Hepola is the author of the best-selling memoir “Blackout: Remembering the Things I Drank to Forget.”

Columnist Bruni dwells on testimony by Judge K of his liking beer. Ms. Hepola focuses on blackouts based upon her personal experience and research for her book. She includes discussion of 21st century technology that has provided evidence of what may have occurred during a blackout, to wit IPhones of one in a blackout and and others present. It was uncomfortable reading her essay.



Does the Constitution have effect or not? You literally change your position with every sentence.

In one breath, you claim the House can ignore the Constitution’s express limits on its grant of impeachment power, and in the next, claim judges cannot ignore the House’s exercise of power beyond those limits.

The Founders did not divide the impeachment and removal powers between the House and Senate to make it easier to impeach and remove the POTUS or a judge for any political reason they found legitimate, but rather further limit a power already expressly limited to high crimes and misdemeanors.



If you want to say history has a 1 percent say and the next election has a 99 percent say, fine, I will go with that. Note the Republican Senator who called for the FBI investigation is retiring. Maybe a lame duck cares what the historians and scholars think.

But no, the Constitution is dead as a doornail except where enforced by courts or where its meaning is too obvious to ignore.

But any situation such as impeachment where (1) there are strong political imperatives, (2) the Constitution is ambiguous and (3) there is no final arbiter and enforcement mechanism, the Constitution is flatly irrelevant and really should be.


The Constitution commits political bodies to decide impeachment. That guarantees a political decision.

The words "high crimes and misdemeanors" mean whatever Congress wants.

From different directions, you, Joe, and Mark are all offended that this is true. But it nonetheless is true, because unreviewability means exactly that Congress can do whatever it wants.

And I would argue that was absolutely a deliberate choice by the framers, who didn't want courts to have any part in removing high officials.

Also, more generally, if we were faced in a situation where a President was completely incompetent but committed no crimes, and the public demands impeachment, I do not want one single Senator listening to scholars whining "won't somebody think of the Constitution?". I want that President out of office.

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The Constitution expressly limited the power of impeachment to high crimes and misdemeanors. You do not get one without the other. If the House is free to ignore the limit, then the POTUS or a judge is free to ignore the power.

The full limit on the impeachment power states: "Treason, Bribery, or other high Crimes and Misdemeanors." Thus, when read in para materia, "high crimes and misdemeanors" are limited to genuine high crimes like Treason and Bribery, not traffic tickets or political disputes.

Furthermore, the drafting history of the provision indicates the Founders considered and rejected allowing impeachment for mere "maladministration," further evidence that political disputes are not included.

I suspect that the Supreme Court may take a greater interest in ruling on the scope of impeachment if a Democrat House abused the power to impeach one of their members for political purposes.


I think any challenge to impeachment gets thrown out under Nixon v. United States, and properly so.

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My last comment referenced "history" and I would add that "historians" provide some "say" on the meaning of that & this influences various people with power in our system, including the general public.

The way certain historical thought of a racist nature influenced the understanding of the Reconstruction and the application of those amendments, e.g., has been written about by various people. Historical thought influenced the framers and those who immediately applied their text. The complicated interplay of things that provide a "say" here is a basic theme of mine here.

Since I said my peace, I will leave it there on this subthread.

I don't think that historians had anything to do with why Reconstruction amendments were interpreted as they were. Rather, the South still had political power thanks to our racist framers. And the North was tired of civil rights.

Had radical Republicans convinced the public, there would have been different Supreme Court justices and a different result.

Fans of the Constitution always babble about popular sovereignty but that's the real popular sovereignty- public opinion can render the words of the Constitution irrelevant, and has many times.

And historians, of course, are even less relevant.

The Pickering precedent is surely solid on dismissal of a federal judge for drunkenness. This clearly counts as a "high ... misdemeanour", as it makes it impossible to do the job properly. Kavanaugh may or may not have hit the bottle for Dutch courage before his final hearing. That would be understandable if not admirable. But as Jeet Heer tweeted, his behaviour was suggestive of ongoing alcoholism, especially the defensive projection in his insolent exchange with Senator Amy Klobuchar.

You have to give weight to the reported opposition to Kavanaugh's nomination of Mitch McConnell, the best political brain on the GOP benches. There are just too many things that look very like unexploded bombs buried in BK's garden.

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