Let's say that Kavanaugh is confirmed by the Senate. Then after that the FBI (or relevant police authority) decide there is enough evidence to investigate sexual assault claims against him and eventually charge him. This seems to give rise to a few questions:

  • Can a Supreme Court Justice stay in position judging cases, while simultaneously being charged with a crime and having to appear in court themselves for that crime?
  • Is there a mechanism for him to be removed from the Supreme Court under these circumstances?
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    This question conflates accusation with conviction. Should the end of the 1st bullet point read "appear in court themselves on those charges?" Presumption of innocence is the law of the land. – grovkin Sep 28 at 17:12
  • @grovkin The 1st bullet just asks if a Supreme Court Justice can appear in court for any crime at all while still serving actively on the Supreme Court. The obvious problem is that ultimately they might end up ruling on their own case. – Anush Sep 28 at 20:47
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    people don't appear in court "for a crime." Saying otherwise takes away the presumption of innocence from every accused. People appear in courts to answer charges, or accusations, against them. – grovkin Sep 28 at 20:52
  • @grovkin They appear in court charged with a crime. I think you might be picking semantic hairs :) – Anush Sep 29 at 6:29
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    I am not. But you just accused everyone who's ever been on trial of being a criminal... regardless of whether they were convicted or not. I was just hoping you did so in error rather than deliberately. But you seem to be doubling down on your wording. – grovkin Sep 29 at 7:45
up vote 13 down vote accepted

Kavanaugh could be impeached once he is confirmed, yes.

The caveat on that is that judges have never been impeached for behavior that occurred prior to his/her confirmation.

Also, the Constitution prescribes that "the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour,..." This presumes that the impeachment of a federal judge for conduct prior to assuming office is not constitutionally permissible. However, this is a political question, so it is not reviewable in a federal court. Therefore, the dictum, "an impeachable offense is whatever Congress says it is" holds true for Supreme Court justices.

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    However, would such impeachment be a realistic possibility if sufficient evidence came up to make him indictable for past charges on which the statute of limitations has not expired? Or are they effectively immune to prosecution for prior conduct, if not by law then by precedent or practice? – The_Sympathizer Sep 27 at 6:12
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    It's fairly widely accepted that a president can be impeached for offenses committed while seeking to become president. The same would surely apply to other officers, including justices. This principle obviously wouldn't apply directly to a sexual crime committed decades earlier, but it could apply to improper efforts to deal with the political consequences of the crime, such as by covering it up, during the nomination process and confirmation hearings, if such efforts came to light. – phoog Sep 27 at 18:23

Then after that the FBI (or relevant police authority) decide there is enough evidence to investigate sexual assault claims against him and eventually charge him.

Sexual assault is not a federal crime. The FBI will not investigate it as a criminal matter. It is a crime in Maryland and there is no statute of limitations, so it could be investigated there. However, of the six people that were allegedly at the party, every one other than the complainant does not remember such a party. This suggests that it would be difficult to make a charge.

I suspect that the statute of limitations has expired in Connecticut for the crime of flashing (exposing oneself). So it is unlikely that that would be investigated either, although not impossible.

TL;DR: A judge can be impeached and removed from office. Ideally this would happen before being charged in court. The judge might be impeached for some crime other than the one causing the court appearance. In Brett Kavanaugh's case, the obvious reason for impeachment would be lying under oath, which is itself illegal.

I meant after being confirmed is there something that can stop him being sworn in. I assume there is a gap in time.

There is a gap, but it is short. Neil Gorsuch was sworn in (April 10th, 2017) three days after being confirmed (April 7th, 2017). Elena Kagan and Sonia Sotomayor were both two days.

List of Supreme Court nominations for anyone who wants to look for more extraordinary circumstances.

It is extremely unlikely that a judge could be indicted, much less convicted, in the time between the confirmation vote and being sworn into office. Presumably if there was evidence enough to impeach three days after the vote, there would be evidence enough to stop the confirmation the day of the vote.

It's also unlikely that they would finish impeachment proceedings that fast. Even if Senators who just voted to confirm were willing to switch sides and vote for impeachment immediately, the process isn't that quick. The most recent impeachment took almost nine months. There have been some others that processed in two months or so, but that's still much longer than the swearing in process.

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    Thank you. Do you have a reference about the six people? I know Judge denies it but is in hiding and hasn’t been subpoenaed. – Anush Sep 27 at 5:46
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    There was a statute of limitations at the time of the alleged assault (considered a misdemeanor back then) in Montgomery County, Maryland, so it cannot be investigated there: washingtonpost.com/local/public-safety/… – pacoverflow Sep 28 at 17:58

Once he is sworn in, he can be impeached.

  • Can he be removed between being confirmed and sworn in? Also, can he be charged at all while a Supreme Court Justice? – Anush Sep 26 at 13:04
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    He can't be removed until he's there tautologically. – David Rice Sep 26 at 13:51
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    Also, if there was credible evidence that events did happen, even if there was not enough support for impeachment for those actions, there would be the related matter of lying under oath, which federal judges have been impeached and removed for before, most recently in 1989. cnn.com/2010/POLITICS/12/08/washington.impeach.judge/index.html – PoloHoleSet Sep 26 at 18:08
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    @DavidRice Right I meant after being confirmed is there something that can stop him being sworn in. I assume there is a gap in time. – Anush Sep 26 at 20:03
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    @Anush there is no mechanism to prevent the appointment of someone after confirmation. The president could decide not to appoint the person, so indirect pressure could be brought to bear to encourage that. – phoog Sep 27 at 18:17

Can a Supreme Court Justice stay in position judging cases, while simultaneously being charged with a crime and having to appear in court themselves for that crime?

Yes.

Indeed, in the U.S. Supreme Court, unlike other courts, a justice is not even required, in any binding manner, to recuse himself or herself from a case in which the justice is involved, although strong judicial norms cause U.S. Supreme Court justices to usually do so when that happens.

There is a norm of conduct that lower federal court judges must take a leave of absence when facing criminal charges, which in the lower federal courts is enforced by having the chief judge of the court in question assign all of the cases of the judge charged with a crime to other judges, that a U.S. Supreme Court justice might actually follow, although that norm would not be enforceable in a binding manner at the U.S. Supreme Court level. At most, the U.S. Supreme Court could decline to assign opinion writing duties and duties regarding ruling on emergency requests to grant or overrule stays of lower court rulings in particular circuits to other justices on a temporary basis. But, the U.S. Supreme Court couldn't deny the Justice charged with a crime a right to vote on petitions for certiorari or on merits decisions of the court.

Is there a mechanism for him to be removed from the Supreme Court under these circumstances?

U.S. Supreme Court justices cease to hold office upon death, upon their own voluntary resignation, or upon removal from office following a U.S. Senate trial of an impeachment.

But, no U.S. Supreme Court Justice has ever successfully been removed from office via impeachment and no federal official has ever been impeached for conduct that did not occur after the official took federal office.

This said, and despite the fact that impeachment is for "high crimes and misdemeanors" and that the position is held during "good behavior" while in office, an inability to carry out one's duties as a U.S. Supreme Court justice during a period of extended incarceration would almost certainly cause a U.S. Supreme Court justice to resign, or to be impeached if he or she failed to do so. No federal judge has ever continued to serve in that capacity while incarcerated in prison.

If that extraordinary situation arose, verging on a constitutional crisis, because a justice in prison declined to resign, I strongly suspect that the remaining U.S. Supreme Court justices themselves would write a letter to Congress signed by all of them urging Congress to impeach the convicted justice and assuring Congress that their action would be constitutional.

In state courts, judges who are sentenced to prison terms cease to serve because binding judicial discipline systems remove them from office, or because binding attorney discipline systems disbar them and state law or the state constitution requires that judges of the court in which they serve also be attorneys duly admitted to practice.

But, in the Article III federal courts, judges are not required by law or the constitution to be attorneys in good standing (because neither law school nor meaningful regulation of admission to the practice of law existed in the United States in 1789 when the current U.S. Constitution was adopted), and the constitution does not authorize a binding system of judicial discipline that can have the effect of removing a Congressionally appointed Article III judge from office.

Also addressing a follow up question in the comments, there is no mechanism for withdrawing a confirmation of someone whose appointment has been confirmed by the President prior to that person taking the oath of office, other than the death of the person who was confirmed to the post, or the refusal of the person who was confirmed to take the oath of office (i.e. a failure to accept the confirmed appointment).

  • Reverted an edit adding the word "and conviction" to impeachment, because I think that using the term "conviction" to refer to a removal from office following a U.S. Senate impeachment trial is confusing and tends to conflate the impeachment process and the criminal justice process. Also the word "impeachment" is commonly used in both the narrow sense of a House "indictment" which is followed by a U.S. Senate trial, and in a broader sense that refers to the entire process as a whole. – ohwilleke Sep 27 at 20:29

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