Trust and the Judiciary’s Pivotal Moment
This red trendline tells an unhappy story. Over the last 45 years, public confidence in the U.S. Supreme Court has marched steadily downward. It hasn’t broken 40% for the last 13 years. Confidence in many other vital American institutions (except the military) is in similar decline, according to annual surveys by Gallup. The latest puts confidence in Congress at a mere 11%, based on those saying they have “a great deal” or “quite a lot” of confidence. If some of us sensed an unraveling of integrity in government, we also believed, wishfully perhaps, that the Supreme Court offered a last line of defense for public trust.
Then the Senate hearings on the nomination of Brett Kavanaugh exploded.
There can be little doubt that the fallout of his Sept. 27 testimony, and the hearings generally, has stained the Supreme Court and will drive the trendline downward anew when Gallup surveys us in mid-2019. Rather than attempt to remain above the political fray, as the Code of Conduct for U.S. Judges requires, Judge Kavanaugh acquiesced in a highly politicized process fueled by the White House and senators in both parties. He did not hold back, and the public optics were devastating.
Now the Supreme Court faces a harsh test: can it hope to rebuild public trust? There is a very small window open right now — if judges with vision raise their voices. I have a stake in the outcome not only because we all have a stake in an impartial system of justice but also because I filed a misconduct complaint against Mr. Kavanaugh.
I would happily withdraw my complaint if he publicly acknowledges that he violated the Code of Conduct by making “inappropriately partisan statements” on Sept. 27, apologizes to the American people and to his fellow judges, and vows to recuse himself from any contentious Supreme Court case where the two political parties are in direct conflict.
He won’t, and so we proceed.
The best way forward for the federal judiciary would be to take a number of unambiguous steps to shore up public confidence.
— The Tenth Circuit Judicial Council, a panel of judges reviewing the Kavanaugh complaints in Denver, should publicly reveal its membership. Half of the 12 federal circuits provide the names of their Judicial Council members online. Not the Tenth. This simple act of transparency would be a promising first step.
— The Judicial Council should confirm what any reasonable person would have seen on their TV screens — that Judge Kavanaugh made partisan statements he shouldn’t have made. (While others have asserted that he lied to Congress as well, my complaint focuses solely on the obvious Code violation.)
— The Judicial Council should recommend to Chief Justice Roberts a sanction that is proportionate to the violation. Declaring the situation moot because Supreme Court justices are not legally bound by the Code of Conduct, or urging no sanction because Mr. Kavanaugh seemed to excuse himself in the Wall Street Journal when he wrote that he “might have been too emotional” in his testimony, would represent an shameful whitewash. The three-part sanction I recommended above is grounded in the inescapable reality that Mr. Kavanaugh violated the Code before millions of Americans, not in the heat of extemporaneous battle but in a prepared statement. His violation was calculated, and it most certainly damaged the integrity of the Supreme Court.
— Chief Justice Roberts, whom I do not envy, needs to insist that his new colleague offer a public acknowledgment of his error and an appropriate expression of regret. It would be a moment of extraordinary political healing, elicit sympathy, and allow Justice Kavanaugh to join in rebuilding trust in the courts — perhaps giving a speech now and again on the power of humility and reconciliation.
— The federal judiciary should Immediately revise the judicial Code of Conduct and accompanying rules:
a. the names of judges on circuit Judicial Councils must be considered public information in every circuit
b. federal judges nominated to a higher seat should be barred from engaging in campaigns of persuasion in the mass media,
c. federal judges nominated to a higher seat should be barred from coordinating confirmation efforts with any political party or official of the executive or legislative branches. If a federal judge cannot stand on his record and character without coaching on what to say or how to act, he or she is simply not fit to advance. Remaining above the political fray doesn’t mean doing so except in cases where the pinnacle of judicial standing is within reach.
d. circuit Chief Judges should be required to promptly disclose any pending, non-frivolous misconduct complaint against a federal judge nominated to a higher seat. The circuit Chief Judge can decide whether a complaint is frivolous. Unfortunately, it took 16 days for the acting Chief Judge of Mr. Kavanaugh’s circuit to publicly acknowledge the existence of misconduct complaints against him. Word came on a Saturday, mere hours before he was sworn in. Judge Karen LeCraft Henderson must have seen that 15 misconduct complaints against a Supreme Court nominee couldn’t possibly remain secret forever and that the worst outcome would have been for their existence to surface after Mr. Kavanaugh was sworn in.
It turns out that a panel of senior federal judges is in the midst of a rewrite of the Code and Rules to insert language related to workplace harassment. This is a perfect opportunity to insist on other confidence-building measures such as the ones noted above (see my testimony Oct. 30 at a public hearing held by judges considering changes to the Code and Rules).
In some respects, Chief Justice Roberts has so far handled the 15 misconduct complaints by the book. He might have simply declared them moot but instead transferred all to the Tenth Circuit. All well and good. But other aspects of the process utterly fail to inspire confidence and offer clues on an eventual outcome.
Judge Henderson felt it necessary to note in her Saturday morning announcement that “the complaints do not pertain to any conduct in which Judge Kavanaugh engaged as a judge” but focused on statements he had made as a nominee. This was instantly prejudicial to the misconduct complaints because it creates a distinction that does not exist. According to the Code of Conduct and their accompanying Rules — and according to common sense — a judge’s statements are a form of conduct. And of course barred statements, such as those evincing partisanship, represent misconduct.
Further troubling signs lurk in the transfer to the Tenth Circuit. Judge Timothy Tymkovich, the circuit’s Chief Judge and chair of its Judicial Council, appeared last year on President Trump’s published list of potential Supreme Court nominees. We need to ask whether a judge considered to be a potential future Supreme Court nominee might want to avoid angering his patron, the President, and protect Mr. Kavanaugh in the complaint process. Not one but potentially two judges fall into this unusual circumstance. Judge Allison Eid, a Trump appointee who was also on the presidential list of potential Supreme Court nominees, sits on the Tenth Circuit appeals court. We don’t know, however, whether she is also on the circuit Judicial Council (because it’s membership is secret). Not only are we unable to learn who will be judging the Kavanaugh complaints in Denver, we don’t know when the Council members chosen, by whom, or for what terms. So much for transparency.
Tymkovich may have a second conflict. When he was a White House aide to President George W. Bush, Brett Kavanaugh attended meetings at which Tymkovich’s own nomination to the federal bench was discussed, according to archived White House e-mails reportedly sent to the Judiciary Committee during the Kavanaugh confirmation process. Did Mr. Kavanaugh advocate for Mr. Tymkovich in those meetings, and is Judge Tymkovich therefore indebted to Kavanaugh?
Perhaps the most disturbing aspect of the handling of the complaints so far is that Chief Justice Roberts, who is very likely to have the final say on any sanction against Mr. Kavanaugh, revealed his own bias in the matter during a speech at the University of Minnesota Law School last month. Roberts was making the case for the importance of Supreme Court impartiality when he held up the lofty words of Brett Kavanaugh as exemplifying the Court’s nonpartisan and impartial approach. Justice Roberts might have quoted Holmes or Brandeis but chose instead to quote a judge against whom misconduct complaints were pending over the very issue of partisanship. This certainly represented an error in judgment. In the absence of any other explanation, one might speculate whether it was an effort to lay the groundwork for an eventual argument that Mr. Kavanaugh has reformed himself by speaking eloquently about judicial impartiality.
One thing is certain: the Kavanaugh debate will re-emerge at some point. It is dormant, but it won’t disintegrate and drift away altogether. When it does surface, we will all witness a turning point. We will know whether the nation’s most distinguished and senior judges are prepared to reassert the judiciary’s dedication to integrity or prefer instead to apply a coat of wishful thinking to the tarnished stature of the nation’s highest court. We will know whether the red line turns around or resumes its terrifying descent.
