The author filed a misconduct complaint against Brett Kavanaugh before he rose to the Supreme Court, alleging “inappropriately partisan statements,” and two successive appeals.
It should come as no surprise that the federal judiciary’s final arbiter on misconduct, a panel of seven judges appointed by Republican presidents, decided Aug. 1 that they have no authority to deal with Brett Kavanaugh’s partisan outburst during his confirmation hearings — not with a ten-foot pole.
A couple of things should startle us, though. First, the judiciary committed more than a dozen blunders, including an outright failure to follow their own rules, as the Kavanaugh complaints surfaced. Disturbingly, Chief Justice Roberts was the source of some of these blunders. Second, the final panel of judges carved out an exception for Supreme Court justices that did not exist in the law or rules. As a result, any Supreme Court nominee can violate his or her Code of Conduct on the way to the Supreme Court and reach Code immunity so long as they win confirmation. This would include playing to the constituents of key Senators to nail down their confirmation votes.
In fact, the rules and official guidance for misconduct proceedings allow Judicial Councils in each circuit to opine on the conduct itself — even to the point of stating that misconduct occurred — while concluding a complaint, without sanction, because a judge resigned after a complaint was filed. Under the Aug. 1 Order, this authority will not apply to judges who resign from the lower court bench as they ascend to the Supreme Court. This is a blunder of large proportions. It permits further politicization of the Senate confirmation process, lowers public confidence in the courts, and invites Congress to impose or require a special Code of Conduct for the Supreme Court.
What of the other blunders? Almost everything that could have gone wrong with the hodgepodge of misconduct complaints filed against Kavanaugh did go wrong. Their path through the federal judicial bureaucracy since mid-September 2018 was marked by flubs, missteps, stumbles, and brow-wrinkling decisions, many that seemed to ignore the judiciary’s own rules for the misconduct process.
Mistake №1. The judiciary’s rules for handling “high-visibility or controversial cases” such as Kavanaugh’s suggest that circuit Chief Judges disclose the existence of non-frivolous complaints to reassure the public that the misconduct allegation is being taken seriously. Instead, information about the initial Kavanaugh complaints was kept under wraps for nearly a month — until mere hours before Kavanaugh’s was confirmed.
Mistake №2 was made by Chief Justice Roberts. On Sept. 20, some 10 days after receiving the first Kavanaugh complaint, Judge Karen LeCraft Henderson, Acting Chief Judge of the District of Columbia Circuit, where Kavanaugh worked, asked Roberts in a letter to transfer the complaints to another circuit. He agreed to do so but still made no public announcement of the existence of complaints, as the rules suggest.
Mistake №3. In all, 35 misconduct complaints were filed with the District of Columbia circuit, where Kavanaugh worked, before he rose to the Supreme Court. The number would have been in the fifties but for unexplained clerical errors. According to official time stamps and other notations on the complaints, no fewer than 22 were dated by the complainant in late September or the first week of October but weren’t marked “received” in the clerk’s office until Oct. 9, the Monday after Kavanaugh’s Saturday swearing-in. Of course, Kavanaugh advanced to non-covered status when he took his oath on Oct. 6. The process of “receiving” complaints clearly stopped shortly after Sept. 27 and didn’t resume until 11 days later, on Oct. 9. We don’t know why.
Mistake №4 belongs to Judge Henderson, who sat at the center of the Kavanaugh maelstrom through Oct. 5, a Friday, when she forwarded the last batch of complaints to Chief Justice Roberts. Chief Judges are encouraged under the misconduct complaint rules to seek an informal resolution in cases where they find probable cause that misconduct occurred. As soon as Henderson saw or heard of Kavanaugh’s partisan outburst, a textbook violation of the Code’s rule against “inappropriately partisan statements,” she should have called her colleague on the phone and simply said: “I suggest you publicly acknowledge that your approach ran afoul of the Code of Conduct and offer your regrets, otherwise I will need to take further action.” We have no evidence that such a conversation took place.
Mistake №5. If no agreement is reached informally between a Chief Judge and a judge, the rules suggest that the Chief Judge “identify” a complaint — that is, initiate an internal complaint so that the public sees that the judiciary is taking enforcement of the Code of Conduct seriously. Actually, where there is “clear and convincing” evidence of misconduct, Henderson was required under the rules to identify a complaint. Henderson failed to identify a complaint.
Mistake №6. Henderson certainly could have asked Roberts to transfer the early “perjury” complaints against Kavanaugh while at the same time identifying a complaint related to partisan statements. Perjury requires deep investigation, but political bias required no investigation at all because the question of inappropriateness is entirely subjective. Instead, each time she saw the name Kavanaugh on a complaint, Henderson bundled it with all prior complaints. The error was in treating all complaints related to Kavanaugh as if they alleged the same misconduct. Far from it.
Mistake №7. Judge Henderson said in her letters to Roberts that transfer of all the complaints was necessary in part because “local disposition may weaken public confidence in the process.” Ironically, the opposite was true. She failed to see that by withholding any public acknowledgement that complaints existed until Kavanaugh was on the verge of confirmation, she had given Kavanaugh time to achieve immunity from enforcement of the Code by rising to the Supreme Court. Ultimately, this undermines public confidence.
Mistake №8 belongs to Chief Justice Roberts. In transferring the existing Kavanaugh complaints en masse to the Tenth Circuit, Roberts asked the circuit to also handle “any pending or new complaints relating to the same subject matter.” When the letter was sent on Oct. 10, Kavanaugh was on the Supreme Court and no longer subject to any new misconduct complaint. Under the judiciary’s rules, any “new” complaints should have been rejected by circuit clerks, without exception, (see Mistake №3) and not transferred to the Tenth Circuit.
Mistake №9. Roberts’s Mistake №8 caused the Tenth Circuit to erroneously accept complaints through early December 2018. Sure enough, more than 40 complaints that were marked “received” after the Oct. 6 cutoff (the day Kavanaugh advanced to the high court) were considered in the Tenth Circuit’s review. Judge Tim Tymkovich, head of the Tenth Circuit’s Judicial Council, made sure to pat himself on the back in two footnotes to the Council’s initial order on the complaints. One footnote said the council “greatly liberalized our standards for accepting complaints” by including post cards. Another noted that complaints were accepted through December 13 because of “significant public interest” and “for the sake of transparency.” In fact, of the 83 complaints fielded by the Tenth Circuit, 18 were either not misconduct complaints at all or duplicated verbatim the allegations of another complaint. The actual number of unique complaints filed before Kavanaugh’s swearing-in came to 32.
Mistake №10. was the Tenth Circuit’s insistence on keeping secret the names of the judges serving on the circuit’s Judicial Council while touting the circuit’s “transparency.” Only when an order is issued by the Council do the judges’ names appear; thus, it is impossible to know who is judging a complaint until the judgment is issued. Of the 12 federal circuits, seven publish the names of Council members on their websites. The 10th is one of three circuits that publish the names only when an order is issued. Two other circuits do not make public the names of Council members, even in Orders.
Mistake №11 also belongs to Chief Justice Roberts. Ten days after Kavanaugh advanced to the Supreme Court, Roberts delivered a speech at the University of Minnesota Law School. In his prepared remarks, he held up Kavanaugh, the subject of dozens of misconduct complaints related to partisan bias, as a learned commentator on impartiality by quoting Kavanaugh on the subject of partisan bias. Until the Kavanaugh complaints were fully adjudicated, it was improper for any member of the judiciary — particularly Roberts, who is chairman of the Judicial Conference, which writes and enforces the Code of Conduct — to comment on Kavanaugh’s understanding of or belief in the concept of impartiality.
Mistake №12 is Chief Justice Roberts’s as well. The entire complaint process would have settled to earth calmly months ago had the Chief Justice convinced his new Associate Justice to issue a public statement (just as Justice Ginsburg did after foolishly criticizing candidate Donald Trump) that voluntarily acknowledged a violation of the Code of Conduct’s rule on inappropriate partisanship and perhaps even promised to disqualify himself from any highly contentious Supreme Court case in which the two major political parties were directly at odds. We now know that Kavanaugh showed his partisan colors during his confirmation testimony, then took part fully in the census and gerrymandering cases before the Court — two extraordinarily politicized issues.
Mistake №13 was a frontal assault on common sense by the 10th Circuit Judicial Council when it decided that it was perfectly fine for the Council to issue an order dismissing all of the Kavanaugh complaints and then for the same Council to review its own order on appeal. To understand how bizarre this step was, read the dissent by Judge Briscoe on the 10th Circuit website. If the 10th had not wanted to be placed in the awkward position of reviewing its own order on appeal, the Chief Judge alone, Tim Tymkovich, should have issued the initial order. Once the Council jointly acted as Chief Judge, it should have forwarded the case to the Judicial Conference’s Committee on Conduct and Disability, as the rules allow. The recent final Order in the Kavanaugh matter agreed that in the future a Chief Judge should take the first step and the full Council should weigh in on the appeal.
None of this really matters anymore. The damage is done and cannot be undone. The shame of it all is that we have had two severely dysfunctional branches of government. In the Kavanaugh matter, the judiciary had an opportunity to show that integrity in government is not dead, but instead it opened a self-inflicted crack in the foundation of its own legitimacy.