Complaints against Brett Kavanaugh in the D.C. Circuit, the federal appeals court that hears appeals from D.C., have just been passed along a second time. This began with a series of reports submitted to Chief Judge Merrick Garland—it’s the “chief judge” part that required they go to him—challenging as unethical Kavanaugh’s statements during his first Senate confirmation hearing and his response to allegations of sexual assault.
Here’s the money passage from the first complaint, filed by the Democratic Coalition:
Kavanaugh violated Canons 1 and 2 of Code of Judicial Conduct by committing crimes of dishonesty while he was a federal judge, by obtaining confirmation of his appointment as a federal judge by false and perjurious testimony, by concealing and covering up his criminal actions and by obstructing justice. He is unfit to serve as a judge by reason of his corrupt, unscrupulous, dishonest and criminal conduct.
The complaint points to Kavanaugh’s claim that he didn’t use materials stolen from Democratic offices by a Republican operative, Manuel Miranda, and had no knowledge of the offense.
Enter the second complaint filed, also from the coalition; it takes aim at Kavanaugh’s “public and partisan campaign of lies to cover-up [sic] and conceal sexual misconduct and crimes he committed in the past.” The complaint cites his appearance on Fox News and perjury before the Senate Judiciary Committee.
As the number of complaints grew, Garland recused himself from reviewing them, without saying more, and the complaints went to the next-most senior judge, Judge Karen LeCraft Henderson, a George H. W. Bush appointee.
On Oct. 6, Henderson released a statement concerning the ethics complaints against Kavanaugh.
Under the Judicial Conduct and Disability Act (28 U.S.C. §§351-364) any person may file a misconduct complaint against a federal judge in the circuit in which the federal judge sits. After the start of Judge Brett Kavanaugh’s confirmation hearings, members of the general public began filing complaints in the D.C. Circuit about statements made during those hearings. The complaints do not pertain to any conduct in which Judge Kavanaugh engaged as a judge. The complaints seek investigations only of the public statements he has made as a nominee to the Supreme Court of the United States.
Henderson did an initial review of the complaints. She found some complaints “frivolous” but referred 15 to Chief Justice John Roberts. Now, Roberts is sending these complaints on to the Tenth Circuit, which hears federal appeals from Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
Now, Judge Timothy Tymkovich, a George W. Bush appointee who made Trump’s SCOTUS shortlist, has a mandate to review these complaints. Roberts tasked that court with exercising “the powers of a judicial council with respect to the identified complaints and any pending or new complaints relating to the same subject matter.”
There’s little doubt that, should the court investigate, they’ll find Kavanaugh didn’t just violate but set fire to the judicial canon of ethics. Under that canon, perjury matters in and of itself, regardless of content. So too does partisanship. When I clerked on a federal appellate court, even our gym gear and bumper stickers were policed.
Kavanaugh has demonstrated he’s anything but impartial. What does that mean for the left-wing groups he seems to believe rallied to sink his nomination unfairly? The ACLU, Planned Parenthood, and Lambda Legal—all of whom opposed Kavanaugh, unusual as that is for the ACLU—are already suing the Trump administration. Even more troubling are Kavanaugh’s specific attacks—on the Clintons, for example, and on Democratic lawmakers. There’s ample rationale for recusal.
Problem is, Supreme Court justices aren’t subject to the canon of ethics. Still, there’s hope. The D.C. Circuit limited its consideration of complaints against Kavanaugh to those relating to his behavior while serving as a federal appellate judge. By the same token, perhaps Roberts is affirming that, regardless of Kavanaugh’s current office, it is appropriate to complete a review of the actions he took in his previous office. That would, after all, be the most ethical result.
Why might the Tenth Circuit do otherwise? Consider that the Ninth Circuit ended its review of former judge Alex Kozinski’s sexual misconduct upon his resignation. Their rationale: Their investigation was governed by the Judicial Conduct and Disability Act of 1980.
That act permits “any person” to file a complaint against a judge who “has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.” So far, so good. Problem is, the provision defining “judge” doesn’t include Supreme Court justices. Much as the Ninth Circuit decided to halt its investigation upon resignation, the Tenth could opt to kill complaints against Kavanaugh since his ascension to a position not covered by the act.
In a dream world, the Tenth Circuit will proceed with an investigation into Kavanaugh’s conduct and make its findings public. If our national nightmare continues, however, dismissal is more likely.