More than a dozen judicial misconduct complaints have been filed against Justice Brett Kavanaugh during his Senate confirmation hearings, but they will probably fail on the grounds that the law doesn’t cover Supreme Court judges.
They deal with his behavior not as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, a position he held for 12 years, but while testifying for his Senate confirmation. The complaints were filed with the D.C. Circuit, and Chief Justice John Roberts transferred them to a federal appeals court in Colorado for review.
It’s unclear who filed the complaints, and details of them aren’t made public. But they almost certainly mirror arguments from Kavanaugh’s opponents that he perjured himself when he denied that he ever sexually assaulted women or drank to the point of blacking out.
Legal scholars believe they could well be dismissed as moot. Charles Gardner Geyh, a law professor at the Mauer School of Law at Indiana University Bloomington, said while the complaints against Kavanaugh are unprecedented, the law that established the process for filing complaints against federal judges doesn’t cover Supreme Court justices.
“We’re in uncharted territory in that it’s the first time we’ve had pending disciplinary complaints against a judge elevated to the Supreme Court,” Geyh said. “There’s no authority under the [1980] act to discipline a member of the Supreme Court.”
According to the rules for judicial conduct and judicial disability proceedings, “covered judges” are those on the U.S. courts of appeals, district courts, and bankruptcy courts, and U.S. magistrate judges.
“I believe the ultimate disposition will be to conclude the proceeding,” added Arthur Hellman, a law professor at the University of Pittsburgh School of Law and expert on federal judicial ethics. “I do think that’s what’s going to happen ultimately. There’s been an intervening event, mainly his elevation to the Supreme Court, that eliminates the jurisdiction of the circuit council to do anything.”
Hellman said it’s possible the Colorado court closes the matter involving Kavanaugh by saying the court doesn’t have the jurisdiction to act. But he predicted the chief judge of the 10th Circuit will first refer the matter to its judicial council.
“It is the council that I think will issue the order saying we’re going to conclude the proceeding because he is no longer a covered judge,” Hellman said.
“If you look at the things that the judicial councils can do if they find misconduct, it’s designed to improve the administration of justice going forward,” Hellman added. “But at this point, they cannot enter an order specific to [Kavanaugh]. They have no power to reprimand him or to take cases away from him or to do anything of the things that they might be able to do with a lower-court judge. So, if they cannot issue an order that applies to him, I think it follows that they shouldn’t be investigating.”
The federal appeals courts have been tasked with reviewing misconduct complaints for decades, and Congress established a process for a person to file a complaint against a federal judge in 1980.
Last year, for example, the 10th Circuit’s judicial council dismissed judicial misconduct complaints filed against Judge Richard Roberts, a former federal district judge in D.C. who was accused of sexual abuse when he was a federal prosecutor in the 1980s. The council said the conduct occurred before Roberts took his seat on the federal bench and thus fell outside its purview.
Kavanaugh came under fire following testimony before the Senate Judiciary Committee at the end of September, during which he responded to allegations of sexual misconduct dating back to the early 1980s.
Kavanaugh denied the allegations before the 21-member panel, but his critics pounced on several of the statements and claimed Kavanaugh perjured himself.
In a statement Saturday, Judge Karen LeCraft Henderson of the D.C. Circuit said the complaints sought investigations “only of the public statements [Kavanaugh] has made as a nominee to the Supreme Court.”
Roberts transferred the complaints Wednesday, when he notified Judge Timothy Tymkovich, the chief judge of the 10th U.S. Circuit Court of Appeals, that the court should “accept the transfer and to exercise the powers of a judicial council with respect to the identified complaints and any pending or new complaints relating to the same subject matter.”
Hellman said that it’s possible the Colorado court could decide that statements from the confirmation process are outside the scope of the federal judiciary’s disciplinary process, and lean on a 1986 opinion from Judge James R. Browning, the former chief judge of the 9th U.S. Circuit Court of Appeals.
Browning wrote it would be “incompatible with this constitutional principle for the judiciary to review the determination of the executive and legislative branches in the nomination and confirmation process by investigating and possibly disciplining a judge for conduct occurring before appointment to the bench.”
Referencing Kavanaugh’s statements made during his confirmation process, Hellman said: “The logic and reasoning of what I think is a landmark opinion of Judge Browning would say the judiciary cannot investigate this because it would interfere with the advice and consent role of the Senate.”
It’s unclear how much time will pass before the Colorado court makes a decision. Some circuits have been able to decide in a few days, while others have taken several weeks.
