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Why a bid to impeach Kavanaugh "does not play well" for Democrats

The battle over Brett Kavanaugh's Supreme Court confirmation has galvanized Democrats, becoming a hot button issue for voters ahead of the midterm elections. House Judiciary Committee ranking member Jerry Nadler has suggested if Democrats take the House, they might consider impeachment proceedings against Kavanaugh. 

But even if that happens, Fordham University law professor Jed Shugerman told CBS News that two thirds of the Senate would need to approve his removal.

"It is exceedingly unlikely that the Republicans in the Senate would join with Democrats to give them 67 votes to remove. So it would be really about the investigation and focus on these issues more than a realistic chance of removing him," he said.

HISTORY OF IMPEACHMENT

This move wouldn't be entirely unprecedented. In 1804, Justice Samuel Chase faced impeachment with the encouragement of President Thomas Jefferson. Chase, a Federalist appointed by George Washington, was accused of being too partisan.

"He would go on long rants about Jefferson and Republicans at the time," Shugerman said. "So then after they impeached him, the removal failed. The Senate overwhelmingly voted not to remove him but one reason why is that both sides came to an understanding and backed off of the confrontation."

Shugerman said we might see a similar dynamic play out now, especially since Democrats may come to realize a push to impeach Kavanaugh wouldn't energize key voters needed in the midterms.

"This argument about impeaching Kavanaugh does not play well where Democrats need to win seats. They need to turn the page for the next month and shift back to pocketbook issues, things the Democrats do very well on. Running against the Trump tax cut, they need to focus on healthcare and they need to shift the focus to Trump and the Russia investigation and protecting Mueller," Shugerman said.

"The Democrats will not win back the Senate if they run on impeaching Brett Kavanaugh."

FUTURE OF THE SUPREME COURT

Now that Kavanaugh has been appointed to the Supreme Court, Democrats will be looking to see how he votes in cases involving abortion. Sen. Susan Collins of Maine said in her decision to back Kavanaugh that she does not think he would vote to overturn Roe v. Wade. But Shugerman said he finds that surprising.

"It's really striking and unpersuasive when Senator Collins says that she thinks Kavanaugh would uphold Roe v. Wade. That's simply not in his own speeches, in his own decisions. I think she got snookered," he said.

Shugerman said the justice to watch now would really be John Roberts. He's still a conservative justice, but Shugerman said he's more cautious about using judicial power. His view on overturning Roe v. Wade is unclear meaning he could end up becoming the key swing vote in future cases.