There is something vaguely familiar in the recent declarations by Democrats that they are prepared to hold post-confirmation investigations into Judge Brett Kavanaugh if he is confirmed. The idea is that, if given control, Democrats will order an effective redo in pulling Justice Kavanaugh back before one or both houses.
There is precedent for such a body. It was called the Synodus Horrenda, or the “Council Dreadful.” Used in medieval times, these tribunals could prosecute even the dead for long passed crimes. Sheldon Whitehouse (D-R.I.) promised Kavanaugh that it does not matter if he is confirmed because “as soon as Democrats get gavels” the party will investigate and possibly impeach him. On the House side, Democratic representatives on the House Judiciary Committee, including Ted Lieu (D-Calif.), Hank Johnson (D-Ga.), Luis Gutiérrez (D-Ill.), Pramila Jayapal (D-Wash.) and Jerry Nadler (D-N.Y.), have declared that they will open up an investigation into Justice Kavanaugh as soon as they regain control over the House.
In other words, neither confirmation nor death will prevent a day of reckoning once power shifts hands. The implications are chilling for a system designed to insulate justices from political threats or retaliation. The most famous Council Dreadful (or “cadaver synod” or “council horrible”) was called in 897 when Pope Stephen VI wanted to try Pope Formosus for crimes that occurred decades earlier.
The problem was that Formosus was already dead. His successor, Pope Boniface VI, died under controversial circumstances after only 15 days. Stephen then took over the papacy and the Council Dreadful, which dug up Formosus and propped him on his throne to answer for his crimes. Not surprisingly, he failed to convince the jury composed of his enemies. He was convicted, stripped of papal garments, and three fingers of his right hand used for blessings were cut off. He ultimately was thrown into the river Tiber.
Whitehouse seemed eager to put the dread back into the Council Dreadful last week in proclaiming that “the sand is running through Kavanaugh’s hourglass.” The pledge to effectively have a do over is playing well with Democratic voters even though the odds of a successful impeachment are remote. Being tossed in the Potomac may be one of the few indignities not awaiting Kavanaugh if such post-confirmation hearings are ordered. It would create precedent for justices to be retroactively investigated on allegations raised but rejected in their confirmations.
I previously said that I agree with Democrats that the withholding of years of background material for Kavanaugh was unprecedented and wrong. Yet, the degree of disclosures demanded by the Senate is, ultimately, a decision of the majority. Moreover, Kavanaugh’s answers about his work on controversial matters were sufficiently hedged to make any claim of perjury difficult to establish. Whitehouse, however, was not talking about Kavanaugh’s work as White House secretary in the Bush administration.
Whitehouse was suggesting that a potential Democratic majority after midterms would call a Justice Kavanaugh to answer allegations that he was a serial rapist. The problem is that the Senate already has heard from the witnesses cited by Christine Blasey Ford and none corroborate her accounts, or even remember the party in question. This is not dispositive, since Ford said she told no one until many years later. However, she cannot remember the date or the specific location of the incident, or the identity of the person who drove her home after she fled the party.
Republicans have not helped the process with their artificial limitations on investigating the claims. Rightfully irate at the Democrats for holding the allegations until shortly before the committee’s vote, Republicans refused to ask for a FBI investigation and then effectively waived serious examination of Ford by hiring a female prosecutor who was limited to questions in ridiculous five minute increments. The haiku style examination of Ford was wide and correctly derided. Similarly, Democrats had little ability to examine Kavanaugh in such brief segments.
Finally, the belated week long FBI investigation seemed more suited for political cover than actually uncovering new evidence. Nevertheless, a special hearing was held, declarations gathered, and a supplemental investigation ordered on allegations occurring decades ago. To call post-confirmation hearings on such allegations would expose all justices to lingering threats of investigation with shifting majorities in Congress. That is precisely what the Framers sought to avoid in establishing a high standard for impeachment and giving federal jurists a lifetime tenure.
It seems highly unlikely that Democrats would be as motivated in promising to pull back Justices Sonia Sotomayor or Elena Kagan before Congress on discrepancies in their records. Democratic nominees have faced allegations of untrue statements before Congress without the threat of post-confirmation investigation. Some advocates objected that Kagan denied being asked for or offering her opinion on the “the underlying legal or constitutional issues related to any proposed health care legislation” or “the underlying legal or constitutional issues related to potential litigation resulting from such legislation” while she was solicitor general of the Justice Department during the Obama administration.
Later, critics argued that newly disclosed documents showed that, after the Affordable Care Act was enacted, Kagan was consulted on the challenge to that law and may have forwarded some possible arguments to use in litigation. While this became an issue in calling for her later recusal from hearing the appeal, there was no call for her removal.
Impeachments were primarily designed to address misdeeds or abuse in office. While a nominee clearly committing perjury in a confirmation hearing could raise grounds for impeachment, it would be in stark contrast to the past record of these very same members. Democrats did not call for such probe into figures like former National Intelligence Director James Clapper, who lied about a major and allegedly unconstitutional surveillance program before the Senate. He admitted that he had chosen the “least untruthful” option in his testimony. Whitehouse did not pull out his hourglass to menace Clapper.
None of this is meant to suggest either certainty or satisfaction with the status of these allegations. Like many, I found both Ford and Kavanaugh’s testimony compelling. I would have preferred that Democrats revealed the allegations earlier. I would have preferred that Republicans provided more time for questions and investigation. Moreover, it is still not clear what, if anything, the FBI might uncover or how this will end.
Yet, end it must. There needs to be finality in some parts of our government, even as chaos reigns in all other parts. If senators are troubled by the lack of disclosures or time, they can in good faith vote against Kavanaugh. However, a confirmation vote shows that the requisite majority of senators were satisfied enough with the record to confirm.
Democratic members should consider the potential political cost of endorsing retroactive reviews of confirmation hearings. It certainly did not work out well for Pope Stephen VI, who was eventually arrested and condemned to death by strangulation. Watching this unfolding spectacle in Washington, many voters know exactly how he must have felt.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.
On the House Judiciary Committee. Amazing.