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Democrats Should Campaign On Impeaching Neil Gorsuch and Brett Kavanaugh

Judge Brett Kavanaugh (by U.S. Court of Appeals for the District of Columbia Circuit via Wikimedia Commons)

Republicans are once again playing dirty tricks. After they refused to confirm Barack Obama's nominee for the Supreme Court Merrick Garland, they are now rushing through the confirmation of Trump's nominee Brett Kavanaugh

On August 31 the White House asserted executive privilege in order to hide 100,000 pages of records on Kavanaugh from the time of the Bush administration. A nominee will be confirmed without proper public scrutiny. Most importantly, Kavanaugh has expressed views that would allow Donald Trump to openly obstruct justice and rule unchecked as if he were above the law. 

“I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office,” Kavanaugh wrote in a 2009 article for the Minnesota Law Review. “We should not burden a sitting president with civil suits, criminal investigations, or criminal prosecutions.”

How are Democrats reacting to this affront to ethics and custom? They are begging Republicans to act virtuously and complaining about unfairness. However, they are not threatening to use the tool that the Constitution gives them: impeachment. 

Impeachment was designed by the Founding Fathers as a check on the executive and civil officials. Article II, Section 4 of the Constitution stipulates that 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."

Therefore, Supreme Court judges can be impeached. That is, indeed, the only check on their power, which would otherwise be absolute and above public scrutiny. 

The fact that the Senate can impeach Supreme Court judges is demonstrated by the case of Samuel Chase. 

Samuel Chase had served on the Supreme Court since 1796. After Jeffersonian Republicans gained control of Congress in 1801, he publicly displayed his political opposition to the government in power. John Randolph of Virginia, at the urging of President Jefferson, initiated impeachment proceedings. The House voted to impeach Chase on March 12, 1804. The final article of impeachment accused Chase of promoting his political agenda on the bench, thereby "tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan."

At his trial before the Senate Samuel Chase argued that he was not guilty of any crime or misdemeanor, but rather that he was being persecuted for his political views. His argument convinced the Senate, which acquitted him on March 1, 1805. 

Since Chase's impeachment, the custom has prevailed that judges should not be tried on the basis of their political opinions. 

However, the United States in 2018 is no longer what it used to be. The GOP has cast away customs and ethics, in an attempt to help Trump obstruct justice and impose a far-right, radical Christian ideology upon the American people.

This is no longer a question of persecution, but of saving democracy from a man who every day abuses his power and tramples on American values.

Furthermore, even if impeachment did not result in a conviction, it would submit judges to public scrutiny. Kavanaugh's records would be examined, as well as possible financial and political conflicts of interest. Political persecution only occurs when crimes are made up, not when a body of lawmakers looks for the truth and makes a decision based on the truth. 

But the Democrats, once again, seem unable to fight, unwilling to use the tools of the Constitution to save the Republic, and instead act as the "snowflakes" right-wingers have long accused them of being. 

This is not a time for custom or precedent, because Trump, Kavanaugh and the GOP do not care about either. This is a time to fight to save democracy with all the legal instruments the Constitution provides. 

Lastly, it must be pointed out that Supreme Court judges are not apolitical, and that the concept of "originalism" is just a sham to conceal a political agenda. Supreme Court judges are political nominees, chosen for their political beliefs.

Democrats and independents must remember never to judge the Right for their empty rhetoric, but for their actions. And their actions are clear: they are using the judiciary to promote their ideology, to consolidate their power, and to dismantle the rule of law. Therefore, Democrats will have to acknowledge the politicization of the judiciary and fight against right-wing political judges.

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