Will Kavanaugh Escape?
Final appeals have been filed urging the federal judiciary to find that Brett Kavanaugh’s outburst on Sept. 27, 2018, violated misconduct rules barring “inappropriately partisan statements.” We will soon learn whether his fellow judges will set a distressing precedent by giving him a pass — or stand behind the judicial Code of Conduct by labeling his conduct a violation (even if he is now immune from any sanction). My own appeal to the Judicial Conference’s Committee on Judicial Conduct and Disability follows:
Regarding the March 15, 2019, Order by the Tenth Circuit Judicial Council related to misconduct complaints against Judge Brett M. Kavanaugh (Docket Nos. 10–18–90038–0067, 10–18–90069–0107, and 10–18–90109–122).
Petitioner: Paul Horvitz
Complaint Docket №10–19–90048 (originally DC-18–90067)
Basic Facts: Based on Judge Kavanaugh’s Sept. 27, 2018, statements during his Senate confirmation hearing, I alleged violations of the Code and Rules barring “inappropriately partisan statements” and “treating…others in a demonstrably egregious and hostile manner.”
Sept. 10, 2018. A third party files first Kavanaugh-related complaint (alleges false statements)
Sept. 27, 2018. Kavanaugh public testimony (at issue in my complaint)
Oct. 2, 2018. My complaint is “received” by the DC Circuit Executive
Oct. 3, 2018. My complaint is “filed” by the DC Circuit Executive
Oct. 5, 2018. DC Acting Chief Judge asks the Chief Justice to transfer my complaint
Oct. 6, 2018. Judge Kavanaugh is confirmed and sworn in to the Supreme Court
Oct. 10, 2018. Chief Justice transfers my complaint to the 10th Circuit
Dec. 18, 2018. 10th Circuit Judicial Council, acting as “Chief Judge,” dismisses my complaint
March 15, 2019. 10th Circuit majority affirms its initial Order, rejecting my petition for review
A copy of the affirming Order by the 10th Circuit is appended and can also be found here: https://www.uscourts.gov/courts/ca10/10-18-90038-et-al.J.pdf.
Judge Briscoe dissented (on procedural grounds related to Rule 25(c)), therefore a petition for review to your Committee is permitted. I hereby petition for review via this letter.
Grounds for Review. This petition offers arguments concerning errors of law in the March 15, 2019, Judicial Council Order, specifically the portion of its opinion dismissing the applicability of the Commentary to Rule 18.
March 28, 2019
Dear Judge Scirica and Members of the Committee,
Thank you for taking the time to read and consider this petition. Although a difference of opinion on procedure brings this matter before you, it would be a pointless distraction to focus on anything other than the merits of the 10th Circuit appeal order. In this petition, I urge you to reject the majority’s perfunctory dismissal of the applicability of Rule 18’s Commentary. As you consider the arguments, I respectfully ask you to weigh them in the context of a single narrow complaint alleging “inappropriate partisan statements.” This, after all, is the issue that holds the greatest potential damage for the federal judiciary, given the extraordinary visibility surrounding it. By unbundling the eighty-three disparate complaints, you will see a fair, defensible, and diplomatic way forward, grounded in the Code and Rules and responsive to your mandate to maintain public trust and confidence in the federal courts.
Argument. The 10th Circuit did what it was supposed to do: interpret an imperfect Act and set of Rules. Unfortunately, neither the letter nor the spirit of the Code and the Rules has yet been applied, in my view. To its credit, the Council understands that only via an intervening event can a complaint proceeding be valid under Rule 1(b) on one day and concluded under the same Rule the next. However, the Council vests an intervening event with far greater potency in the complaint process than the Rules envision, thus allowing Justice Kavanaugh’s confirmation to forcibly invalidate the Rule 18 Commentary. This is the heart of the error of law: In its original order and subsequent affirming order, the 10th Circuit applies the concept of an intervening event retroactively, protectively grandfathering a once-covered judge by erasing any informal fact-finding, judicial judgment, or authority under Rule 18 to comment on the conduct itself. The Rules contemplate no such application of an intervening event. The 10th Circuit majority compounds this error in its March order by focusing on fact-finding, stating: “The lack of jurisdiction over Justice Kavanaugh precludes an investigative and fact-finding process, even over conduct allegedly committed while Justice Kavanaugh was a covered judge.” The majority assumes first that formal fact-finding would be necessary, and second, that formal or informal fact-finding begins only after a chief judge happens to reach into his or her in-box, read a complaint filed by a third party, and determine that it requires attention and investigation. This is a flawed assumption. Fact-finding can begin in the mind of a chief judge the instant the suspect conduct occurs, is seen, is heard, or is described. If an intervening event causes a chief judge to conclude a complaint and also invalidates or erases all prior or current consideration and judicial judgment of the conduct itself, we certainly must ask why the Rule 18 Commentary was written. It states:
“Although the subject judge may ostensibly be vindicated by the dismissal or conclusion of a complaint, the chief judge’s order may include language disagreeable to the subject judge. For example, an order may dismiss a complaint, but state that the subject judge did in fact engage in misconduct.”
The 10th Circuit majority never discloses why, in some concluded cases, Rule 18 might apply but that in the case before it, the Rule is out of bounds. It merely decides that it has no jurisdiction, as if Rule 1(b) is decisively retroactive from the instant an intervening event occurs. If that were the case, one might reasonably ask why the DC Circuit and the Chief Justice transferred complaint after complaint to Denver through December 2018, or why the 10th Circuit bothered to write an order instead of shipping the complaints back to the DC Circuit Clerk for disposal under Rule 8(c) via a one-sentence note to complainants. [Footnote 1: Complaints filed after Judge Kavanaugh’s swearing-in were not valid under Rule 8(c), should not have been accepted by Circuit Clerks, should not have been transferred, and should not have been included in the 10th Circuit’s deliberations, yet some were. The initial 10th Circuit order cited public interest and “transparency.” (see Footnote 6) It did not invoke Rule 2(b).] The answer lies in the role of an intervening event. In the case of a non-frivolous complaint, loss of jurisdiction over a proceeding is created by an intervening event and eliminates the authority going forward to impose corrective action. It does not erase prior judicial judgments or bar current judgments on the nature of the conduct.
In its March order, the 10th Circuit Council states that is “lacks jurisdiction to entertain the complaints [emphasis added]…” (page 6 of the appeal order). In fact, the proceeding began when the DC Circuit accepted the complaints as non-frivolous and requested transfer. The Act itself is clear: § 352(b)(2) states that a chief judge may “conclude” a proceeding if corrective action “is no longer necessary because of intervening events” [emphasis added]. As the phrase “no longer necessary” implies, the process unfolds over time and only corrective action is set aside.
This Committee’s opinion in the Cebull case (C.C.D. №13–01 issued Feb.17, 2014) regarding the role of an intervening event provides interesting perspective. [Footnote 2: https://www.uscourts.gov/sites/default/files/ccd-13-01order-final-01-17-14.pdf] Judge Cebull was found to have engaged in misconduct (for racist e-mails), then retired, prompting the Ninth Circuit to vacate its lengthy (unpublished) order finding misconduct. The Ninth then followed with a condensed order that retained the misconduct conclusion while dropping planned sanctions. To be sure, the misconduct was fully investigated and the subject of a preliminary (but unpublished) written order, unlike the case before you. However, neither the Ninth Circuit nor this Committee saw the retirement as an event that erased the prior unpublished finding of misconduct. The committee opinion states: “Judge Cebull’s retirement only affected the prospective sanctions imposed by the [initial Ninth Circuit] order, rendering them inoperative.” (page 11) Although the Committee opinion found that the retirement wasn’t “literally” an intervening event, it confirmed that the effect was exactly the same: the elimination of future corrective action. The Ninth Circuit stated in its final order that the retirement “concludes these proceedings, and dismisses the complaints as moot” even while retaining a finding of misconduct.
Most importantly, your Committee decided to preclude the Ninth Circuit’s moves to moot its initial harsh finding and moot the original complaints because doing so “ is important to maintain public confidence in judicial conduct and disability complaint proceedings.” To this reader, you correctly placed the Code’s highest purpose above any exploitable vagaries in the Rules. In sum, the Cebull opinion resulted in retaining an actual finding of misconduct following a judge’s transition to non-covered status. I am merely suggesting retaining the authority for such a finding following a judge’s transition to non-covered status cases. This is what Rule 18 permits.
The Rule 18 Commentary envisions a chief judge either dismissing or concluding a complaint and at the same time providing comment on the conduct, presumably because guidance for the judiciary or reassurance for the public is desirable. By including cases where a proceeding is concluded, the Commentary assumes an intervening event. Such events are the primary reason a proceeding ends midstream (other than approved voluntary self-correction). The 10th Circuit approaches its task as if the exclusive focus should be the judge and his status. Given the exceptional circumstances, it could have (and should have) given weight to the conduct itself, and whether judicial branch silence on the conduct undermines “the effective and expeditious administration of the business of the courts” (28 U.S.C. § 351(a)).
What makes this matter “exceptional”? It represents the mother of all high-visibility cases. The TV ratings firm Nielsen estimated the live audience of Americans viewing the Sept. 27 Kavanaugh testimony at 20 million [Footnote 3: https://apnews.com/caa510f21dcd4c569a4c8ea91f587a44]; countless others watched TV news or saw video clips online. Thus, millions of Americans who assume that judges act impartially were eyewitnesses to a textbook violation, by no less than a Supreme Court nominee, of Rule 4(a)(1)(D), which bars “inappropriately partisan statements.” [Footnote 4: The breadth of the public reaction is well documented. In Cebull, six law professors published an editorial questioning the judge’s ability to be fair and impartial. Immediately after the Kavanaugh testimony, 2,400 law professors signed a letter calling Judge Kavanaugh’s behavior disqualifying. https://wapo.st/2Yxr512] The public at large may have been unaware of the specifics of the Code and Rules, but vast numbers undoubtedly saw “something wrong.”
Underlying the majority’s argument is an assumption that no fact-finding took place before it received the transfers. Such thinking would preclude any judicial comment in cases where a chief judge perceives misconduct, seeks an informal remedy, fails to achieve a satisfactory result, identifies a complaint, and seeks transfer — all before an intervening event. In the Kavanaugh matter, the acting chief judge of the DC Circuit (Judge Henderson) should have opened informal discussions with her colleague or identified a complaint immediately upon seeing, or reading a reliable transcript of, the Sept. 27, 2018, premeditated verbal attack on members of the Senate Judiciary Committee and their political party. [Footnote 5: According to the Breyer Committee Report (pages 107–108, 116), the failure of a chief judge to identify a complaint, especially in high-visibility cases, has been an area of weakness in the administration of the Act and Rules and jeopardizes legislative and public confidence. The report may be found here: https://www.supremecourt.gov/publicinfo/breyercommitteereport.pdf] Importantly, no pause for inquiry or investigation was required because a violation of “inappropriately partisan statements” involves a purely subjective judgment: what constitutes inappropriateness? The fact that Judge Henderson failed to open informal negotiations on self-correction or identify a complaint does not mean that the subsequent “chief judge” (the 10th Circuit Judicial Council) had no option to address the conduct while concluding a complaint because of an intervening event. Rule 18 permits it.
Of course, there is no requirement that a chief judge comment on the conduct while concluding a proceeding. It would likely occur in exceptional circumstances. Given the sensitive and highly public nature of the Kavanaugh matter, the 10th Circuit had the authority to comment on the conduct and, in my view, had a responsibility to the public and fellow judges to do so, even while concluding the proceeding. This was the result in Cebull. What might the 10th Circuit Council have said? Under the Rules, it could have forwarded the complaints to this Committee, a sign of the seriousness of the matter. Or it could have invoked Rule 18 and stated in its concluding opinion that the Kavanaugh remarks, delivered by a then-covered judge, failed to live up to the letter or the spirit of the Code and the Rules and that similar conduct by a covered judge would likely lead to some form of self-correction or remedial action via the complaint process. It could have noted that unbiased judgments are absolutely essential to the integrity of the federal courts and the public’s confidence in them. And it could have said that it hopes its perspective helps to inform the disqualification deliberations of all federal judges considering issues of impartiality.
Because the 10th Circuit needlessly handcuffed itself, it now appropriately falls to this Committee to offer the public and fellow judges brief, clear, plain commentary on inappropriately partisan statements. Diplomatic but unmistakable language by this Committee (or the full Judicial Conference) neither mandates nor suggests any remedial action and therefore does not impinge upon judicial independence. Where a formerly covered judge is beyond the reach of corrective action amid exceptional circumstances, important lessons can still be learned and the public can still be reassured that the judicial branch takes impartiality seriously.
This point is made clear in the Commentary to Rule 11(e), which expands on intervening events. Implicit in the Rule 18 Commentary is the same underlying need for guidance and improvement that prompts the the writing of the Rule 11(e) Commentary. It states:
“Concluding a complaint proceeding…precludes remedial action under the Act and these Rules as to the subject judge. But the Judicial Conference and the judicial council of the subject judge have ample authority to assess potential institutional issues related to the complaint as part of their respective responsibilities to promote ‘the expeditious conduct of court business,’ 28 U.S.C. § 331, and to ‘make all necessary and appropriate orders for the effective administration of justice within [each] circuit.’ “ Id. at § 332(d)(1).
As a practical matter, misconduct opinions are necessary for a full interpretation and understanding of the Code, the Act, and the Rules. By barring any review, investigation, inquiry, consideration, or comment related to the merits of my own complaint [Footnote 6: https://www.uscourts.gov/courts/ca10/10-18-90048.pdf], the Council’s original order thwarted the intent of the Act, the Rules, the Code, and the Constitution (Article III’s mandate of “good behavior” by all judges). It also invited legislative branch intervention. The Breyer Committee underscores the fact that leaving misconduct unexplained fails the process. Its case studies of high-visibility complaints are noteworthy. In case C-4 (page 75), the panel concluded that the chief judge avoided an inquiry into “troublesome publicly aired allegations,” thus “leaving the public with no authoritative conclusion from the circuit council as to whether misconduct occurred.”
Bundled Complaints. The informal bundling of complaints by the DC Circuit and the formal bundling by the 10th Circuit complicates this Committee’s path to a fair and wise outcome. My complaint, and possibly others, offers a clear way forward because it raises no issues of false testimony, which the Department of Justice and Congress are well-equipped to address should they choose to do so. My complaint pertains exclusively to two Rules, the primary one being 4(a)(1)(D), which bars judges from making “inappropriately partisan statements” and a secondary one, 4(a)(2)(B), which bars judges from “treating…others in a demonstrably egregious and hostile manner.”
Complaints filed against Judge Kavanaugh before Sept. 27 alleged false statements (perjury). Judge Henderson forwarded those to the Chief Justice for transfer. However, on Sept. 27, Judge Kavanaugh’s prepared testimony caused materially different and glaring Code and Rule violations to explode into the public arena. Under Rule 5(a), if Judge Henderson had “information constituting reasonable grounds for inquiry,” she could have sought an informal resolution on the partisanship infraction by speaking with Judge Kavanaugh (there is no public evidence she did). The availability of this informal approach “should encourage attempts at swift remedial action before a formal complaint is filed.” (Rule 5 Commentary) In addition, Judge Henderson may have had a duty to immediately identify a complaint against Judge Kavanaugh. Rule 5(a) states:
“If the evidence of misconduct is clear and convincing and no informal resolution is achieved or is feasible, the chief judge must identify a complaint.” [emphasis added]
Judge Henderson did not identify a complaint. Instead, as new complaints were filed alleging inappropriately partisan statements, she followed a rote process of bundling the later partisanship complaints, which required no inquiry or delay, with the earlier perjury complaints, which alleged criminal acts and would have required deep and time-consuming investigation. In transferring complaints to the 10th Circuit, the Chief Justice perpetuated the packaging by stating that the 10th Circuit should handle the complaints being forwarded “and any pending or new complaints relating to the same subject matter.” The complaints contained vastly different allegations and involved wholly different sections of the Code and Rules. In my view, they did not involve “the same subject matter.” [Footnote 7: https://bit.ly/2YoOkdq (shortened link to cadc.uscourts.gov)] In her transfer requests to the Chief Justice, Judge Henderson cited “exceptional circumstances” and “concern that local disposition may weaken public confidence in the process.” (see footnote 7) Ironically, requesting the transfer of complaints alleging partisanship had the opposite effect of weakening public confidence because the judiciary had clearly failed to act “swiftly,” as encouraged in the Rule 5 Commentary, and simply let the clock run out as Judge Kavanaugh proceeded to confirmation. The Breyer Committee report notes that the higher the visibility, “the more desirable it will be for the chief judge to identify a complaint in order to assure the public that the judicial branch has not ignored the allegations and, more broadly, that it is prepared to deal with substantive allegations.” (Breyer Report, page 116)
The DC Circuit’s failure to act swiftly as a scheduled intervening event loomed, combined with the 10th Circuit’s ill-considered dismissal of the Rule 18 Commentary, together raise a serious red flag that the Breyer Committee cautioned about: “engaging in institutional favoritism.” (Breyer report, page 2) Valid or not, the perception of favoritism surely erodes the principle that the Code and Rules seek to uphold.
This Committee has the authority to unbundle the complaints if it agrees that they all moved through the process based on the fundamental error of law explained above. The Committee can and should address the most clear-cut and most publicized instances of alleged misconduct: inappropriately partisan statements. As for questions of false testimony, this Committee need not examine them, because other government bodies have the authority to address them and are better positioned to do so.
Precedent. There is no precedent for the exceptional circumstances surrounding this case. I stated in my initial appeal [Footnote 8: https://www.uscourts.gov/courts/ca10/10-18-90048.P.pdf] that none of the precedents cited by the 10th Circuit in its underlying order apply in any meaningful way to a situation where a fully known and scheduled intervening event causes a chief judge (in this matter, the 10th Circuit Judicial Council) to dismiss a complaint, duly filed against a then-covered judge, simply because time passed, the judiciary failed to act swiftly, the event intervened, and the judge in question advanced to non-covered status. The 10th Circuit has cited the Kozinski matter, №17–90018 (2nd Cir. 2017). Many differences separate the Kavanaugh and Kozinski cases. In Kozinski, the chief judge of the Ninth Circuit did not recuse or immediately seek a transfer. He identified a complaint based on a credible news article alleging sexual misconduct, then requested a transfer. The next day, the Chief Justice transferred the complaint to the 2nd Circuit, and the next business day, Judge Kozinski retired. Even as it stated that it was not finding on the merits and could not investigate Kozinski, the order of the 2nd Circuit Judicial Council employed unmistakably firm language, noting the “grave allegations of inappropriate misconduct, which the federal judiciary cannot tolerate.” [Footnote 9: https://www.uscourts.gov/sites/default/files/c.c.d._no._18-01_april_17_2018_0.pdf] Clearly, the Council had thought informally about the conduct itself. Further investigation was barred not because the Council’s thoughts and judgments were erased when the judge retired but because a formal investigation became moot. By retiring, Kozinski corrected the situation; he was no longer on the federal bench. The 2nd Circuit noted that the Act’s “emphasis is on correction of conditions” harmful to the judiciary. Similarly, in the Clevenger complaint against Judges Smith and Hudspeth (C.C.D. №16–01, 2017), the 5th Circuit Judicial Council concluded complaints against the two judges because they retired in the face of the complaint (also related to alleged sexual misconduct), and this Committee approved, saying the Council had correctly decided that the complaint proceeding “was unnecessary” [Footnote 10: https://www.uscourts.gov/sites/default/files/ccd-16-01-order-final-01-26-2017_0.pdf] because the two judges had retired. Again, the intervening event corrected the situation. In both of the above examples, the allegations were starkly explicit. In the Kavanaugh matter, appropriateness remains undefined, guidance to other judges and the public is absent, and nothing has been corrected. In my view, only correction is now ruled out; this Committee can address appropriateness and guidance in the Kavanaugh matter.
The issue of precedent is important for the future. If this Committee affirms the 10th Circuit majority’s appeal order, it would set a powerful (and counterproductive) precedent. Any intervening event that is scheduled or expected could dissuade a chief judge from entertaining or identifying a complaint in the first place and to cause deliberate delay. Any perception of purposeful bureaucratic or judicial delay would damage public confidence and trust. Such a perception would seem reasonable. Moreover, a Supreme Court confirmation hearing could become a test of how many Code and Rules violations might be needed to secure advancement. To use an intervening event to nullify or invalidate any element of a proceeding that occured while a subject judge was covered, or to effectively erase any consideration of the conduct itself, regardless of the level of public visibility, enters highly unpredictable territory and would certainly do further damage to public trust in the courts.
Disqualification. The 10th Circuit majority’s resistance to disqualification defies common sense. Rule 25(c) is unambiguous, and the dissent by Judge Briscoe and disqualification by Judge Lucero speak for themselves. I would only add that the right to petition for review is a guarantee to the complainant of the correct, fair, and impartial application of laws. It should be afforded due respect. With regard to Rule 2(b), cited by the majority, the opinion fails to “expressly” find any circumstances that were “manifestly unjust or contrary to the purposes of the Act or these Rules,” as the Rule 2(b) language states. The majority merely invokes the Rule to invalidate Rule 25(c) but shows no evidence of any inquiry or examination on its part that might lead to a finding that 2(b)’s fail-safe purpose should be triggered. One hopes the disqualification matter (also an error of law) is now irrelevant and that this Committee will engage on the content of the appeal order (and the underlying complaints.)
Remand. A decision that finds flaws in the 10th Circuit order and remands the case for additional consideration would unnecessarily prolong this matter by months and divert another set of judges from their primary role. This Committee and the Judicial Conference have ample authority to make a final determination and to address the conduct in question. (see Rule 11 Commentary) Remanding to a new Council, as Judge Lucero suggests, would further undermine public confidence. Any finding by a new Council would have the appearance of being tainted by the public availability of the 10th Circuit order and the publicity it has already received.
Voluntary Self-Correction. A finding that Judge Kavanaugh has already voluntarily self-corrected, as described under Rules 11(a)(2) and 11(d)(2), would not comport with the Rules. On Oct. 4, Judge Kavanaugh’s byline appeared over an essay in The Wall Street Journal. He wrote that he “might have been too emotional at times” and promised to “keep an open mind in every case.” For such an action to be corrective under Rule 11(d)(2), the chief judge must determine “that the subject judge has taken appropriate voluntary corrective action that acknowledges and remedies the problems raised by the complaint.” [Emphasis added] Moreover, the Rule 11 Commentary states that voluntary corrective action “‘should be proportionate to any plausible allegations of misconduct in a complaint.” In short, there is no correction without an acknowledgement of a violation and a proportionate remedy. [Footnote 11: Justice Kavanaugh can still voluntarily self-correct in the spirit of the Code of Conduct, which Chief Justice Roberts says Supreme Court justices follow despite the absence of any mandate. (see his 2011 Year-End Report on the Federal Judiciary, page 4: “All Members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations.” The report can be found here: https://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf]
Conclusion. The core argument of the 10th Circuit majority — that it has no jurisdiction whatsoever over the Kavanaugh complaints — mistakenly applies the intent and logic of an “intervening event” retroactively, thus claiming to bar any comment on the conduct itself (under Rule 18). An “intervening event” bars corrective action after the event. It does not erase inquiry and fact-finding beforehand, as if the conduct never occurred, or close off all discretion to comment on the conduct alone, while concluding a complaint. The Council had, and this Committee now has, an obligation to express a view on the conduct based on the Code’s mandate that judges act to preserve public trust in the judiciary, [ Footnote 12: Canon I. “A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved….Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn on their acting without fear or favor. Although judges should be independent, they must comply with the law and should comply with this Code. Adherence to this responsibility helps to maintain public confidence in the impartiality of the judiciary. Conversely, violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.”] especially in “high-visibility” cases. The central issue in my complaint is not that harsh statements were made but rather that those statements revealed bias for all to see. It is hard to imagine a more serious judicial weakness than fueling the perception of bias. Canon 3(c)(1)(a) of the Code states: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which the judge has a personal bias or prejudice concerning a party.”
Despite the severity of the alleged conduct, the Council’s novel, self-restricting interpretation rules out the guidance on ethical issues that judges, including Supreme Court justices, say they need. [Footnote 13: Chief Justice Roberts writes on page 5 of his 2011 Annual Report: “The Justices, like other federal judges, may consult a wide variety of other authorities to resolve specific ethical issues. They may turn to judicial opinions, treatises, scholarly articles, and disciplinary decisions.” [emphasis added]] A Supreme Court justice who exhibited partisan bias as a lower-court judge, but was never guided on the boundaries of the conduct via the complaint process, can hardly be expected to disqualify appropriately. The absence of any inquiry or assessment of institutional issues raised by these complaints deprives colleagues of ethics guidance and the public of any assurance that instances of alleged bias are being taken seriously.
In addition, the nature and timing of my complaint and its dismissal point to a grave flaw in the misconduct process that allows for actual abuse or the appearance of abuse. Under the Council’s underlying opinion, when an intervening event is anticipated or scheduled, a timely complaint against a covered judge can be rendered entirely moot by bureaucratic or judicial procrastination or intentional delay. Further, under the 10th Circuit analysis, the public must assume that the next Supreme Court nominee is free to resort to tactics that violate the Code and Rules in order to win sufficient confirmation votes — knowing that ethics enforcement immunity awaits.
One final point should be noted. The 10th Circuit majority’s opinion states: “Given the exceptional circumstances, the Council determined it to be in the public interest and in the interest of justice for more judges to consider the matter in the first instance.” I agree. While this Committee is the necessary first stop for the petition before you, I believe the Committee should consider seeking some form of consensus in the full Judicial Conference to render a final opinion. There is no precedent for the size of the public audience that witnessed the startling events that gave rise to my complaint and others like it. Whatever else they may have thought about the larger Senate spectacle of Sept. 27, a great many Americans saw something thoroughly out of bounds in Judge Kavanaugh’s opening statement that day. The “wrong” they saw lingers and infects all of his work on the Supreme Court.
This is not an academic exercise. It does not pertain to one aggrieved appellant. My complaint was brought not to attack a judge but to defend you, your fellow judges, and the judicial branch of my government from perceptions of bias that erode your legitimacy. This petition was filed in that spirit.
Whatever your decision, I respectfully ask that you convey as clear and convincing an explanation, for lawyers and non-lawyers such as myself, as the Committee and Judicial Conference can muster.
Once again, I greatly appreciate your consideration of this petition.