Professor Jed Shugerman was quoted in a Washington Post article about the possibility that impeachment proceedings could be brought against Supreme Court Justice Brett Kavanaugh following the most recently reported accusations of sexual misconduct by the justice.
Yet Kavanaugh’s removal is exceedingly unlikely, given the supermajority threshold in the Senate, where there are 53 Republicans, 45 Democrats and two Independents (who caucus with the Democrats). The “supermajority” threshold for removal is exceedingly high by design: The delegates crafted it to prevent politics from driving the outcome, instead ensuring any misconduct was offensive enough to have bipartisan support for removal.
Nineteen federal officials — including 15 judges and two presidents — have been impeached, but fewer than half have been removed by the Senate because of the supermajority standard.
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There isn’t a clear definition of “impeachable offense,” though historically it is often framed by statutory felonies and involves a significant abuse of power, according to Jed Shugerman, a professor at Fordham University School of Law and an expert in constitutional law. “Current culture has also changed our understanding of what an abuse of power is,” he said.In 1970, arguing for the impeachment of Justice William O. Douglas, then-Rep. Gerald Ford (R-Mich.) defined impeachable offenses as “whatever a majority of the House of Representatives considers it to be at a given moment in history. … Something less than a criminal act or criminal dereliction of duty may nevertheless be sufficient grounds for impeachment.”