Kavanaugh and Impeachment

We hear a lot from assorted political folks about how to interpret the Constitution. One popular among conservatives is called "originalism." Generally, it's defined as assuming that we should interpret the Constitution as if it had a stable content, that we need to look at the original intent of the authors, and if times change, then the steps in Article Five should be used to change it. Original intent has become less popular among originalists who now adhere more to the belief that we should focus on the original meaning, i.e., what reasonable people would have understood the meaning of a phrase to be. This syllogism is closer to textualism and Antonin Scalia is the justice most associated with the philosophy.

I got to thinking about originalism and impeachment and high crimes and misdemeanors. There is lots of loose thinking about impeachment these days. A recent paper by Gene Healy, Indispensable Remedy, helped focus some of these ideas.

The first impeachment of a federal official was in 1803, that of Judge John Pickering formerly of the New Hampshire Supreme Court, then of the US District Court for New Hampshire. He was beginning to show signs of mental impairment soon thereafter and he was impeached by the House for coming to court drunk and raving and ranting and "unlawful rulings." The Federalists raged that Jefferson and his Democratic-Republican Party were trying to eliminate jurists with a federalist mindset. Pickering was convicted and removed from office. He died a year later.

The Federalists' fears were warranted when President Jefferson pushed the House to impeach Justice Samuel Chase (not to be confused with Salmon Chase the later Chief Justice) whose federalist rants from the bench ran clearly against Jefferson's political leanings. Jefferson also feared that the judiciary, thanks to Marshall's establishment of judicial review in 1803, gave the judiciary far too much power. Chase has vehemently protested Jefferson's repeal of the Judiciary Act of 1801 which had eliminated lower court federal judges, many of whom were Federalists. Chase was charged with political bias and defended by Aaroin a trial presided over by vice-president Aaron Burr in a trial before the Senate. The Senate, even though dominated by Jefferson's allies, refused to convict (For more details, a good summary is here. ) His acquittal some have seen as solidifying support for an independent judiciary not subject to political whim.

The Kavanaugh hearings and his partisan rant before the Senate on Thursday reminded me of these two cases and their import. Now, I disagree with Kavanaugh's judicial philosophy, at least as far as it can be determined as an examination of the decisions of Merrick Garland and Kavanaugh provide little dissimilarities and the term "conservative" as a pejorative label strikes me as overly simplistic. His loud, rude, and biased attack on his Senate adversaries was impolite if not stupid. Yet, based on what I heard, calls for impeachment seemed inadvisable. If the trial of Samuel Chase show us nothing else, it demands that we maintain at least the appearance of an independent judiciary. Should Kavanaugh show up drunk on the bench, however, all bets are off.