The State of Michigan Attorney Grievance Commission told be to go hire an attorney, like that was going to happen.
Council Reviewing The Kavanaugh Ethics Complaints Punts Back To Chief Justice Roberts
When we last checked in with Brett Kavanaugh back in October, he was performing his judicial duties as a lifetime Justice of the U.S. Supreme Court, even though Chief Justice Roberts had referred 15 ethics complaints against him for review by the Chief Judge of the 10th Circuit in Colorado. No one knew what would happen next.
On December 18, we found out. While much of the country was preoccupied with the government budget shutdown, the 10th Circuit Judicial Council quietly issued its non-verdict , below, in the matter, announcing:
- that the original roster of 15 complaints had swollen to 83 complaints;
- that the ethics complaints against Kavanaugh were “serious”; but
- that the 10th Circuit Judicial Council had no jurisdiction to rule on them; and
- that the complainants had a brief period to request a review.
In effect, they said, back to you, Chief Justice Roberts: it’s your problem, not ours.
The Elaborate Dance Of Pass-The-Buck
Here is the sequence of moves to date, which resemble a dance routine in a Gilbert & Sullivan musical comedy,
- Before and after Kavanaugh’s nomination hearings, complaints initially came to Chief Circuit Judge Merrick Garland. Garland recused himself in the matter, since he himself had been nominated for the Supreme Court by President Obama but was denied even consideration by the Senate for purely political reasons.
- The complaints then passed to Judge Karen LeCraft Henderson of the DC Circuit, who concluded that more than a dozen of the complaints were substantive enough to warrant investigation and she referred them to Chief Justice Roberts.
- Chief Justice Roberts waited until Kavanaugh had been confirmed by the Senate and then requested the 10th Circuit “to exercise the powers of a judicial council with respect to the identified complaints.”
- The Chief Judge of the 10th Circuit duly formed a Judicial Council which has now declared that it has no such powers. Although the complaints are “serious,” it has decided it has no jurisdiction to rule on them, on the grounds that Kavanaugh is no longer a judge covered by the Judicial Conduct and Disability Act.
- The 83 complainants were given 42 days to appeal the ruling, i.e. until January 30, 2019.
- As any appeal will be heard by the same Tenth Circuit that has already declined jurisdiction, there is little prospect of any change in its ruling.
- The 83 ethics complaints against Kavanaugh will likely soon be back in the lap of Chief Justice Roberts for him to review, act on, or pretend that judicial misconduct never happened and hope that the smell goes away.
The Judicial Ethics Complaints Are “Serious”
The complaints fell into three main categories. Some relate to complicated matters of fact involving Kavanaugh’s actions many years ago, which might be difficult to verify or resolve.
Other complaints concern Kavanaugh’s behavior as a Judge on the Court of Appeals by favoring certain parties or interests, on which opinions may differ.
The third and most obviously problematic category of the complaints concerns Kavanaugh’s behavior during the nomination proceedings in September 2018. The Judicial Council summarized:
Justice Kavanaugh made inappropriate partisan statements that demonstrate bias and a lack of judicial temperament; and treated members of the Senate Judiciary Committee with disrespect.
Unlike the first two categories of complaints, the third category concerns behavior that was shown on national television. There is thus no question as to whether the behavior in question occurred,
Nor is there any significant question whether the behavior involved extreme breaches of judicial ethics. As one of the complainants, Larry Behrendt, wrote in the Washington Post:
Kavanaugh peppered two hours of Senate testimony with attacks against people and groups he associated with Democrats. Kavanaugh alleged (without factual basis) that he was the victim of a vast, secret, left-wing cabal, masterminded by senators such as Dianne Feinstein (D-Calif.) and motivated by “revenge on behalf of the Clintons.” … [He carried on] like a crazed conspiracy theorist.”
Kavanaugh’s behavior at the hearing prompted several thousand law school faculty to sign a letter opposing his confirmation because "he did not display the impartiality and judicial temperament requisite to sit on the highest court of our land."
In a Wall Street Journal column after the Senate hearings, Kavanaugh acknowledged that his tone was “sharp” and that he “said a few things [he] should not have said” out of frustration at being wrongly accused. He pledged to be “even-keeled, open-minded, independent,” but failed to fully acknowledge what he had done wrong or to formally apologize.
Kavanaugh’s Get-Out-Of-Jail-Free Card
The main elements of the Judicial Council’s decision are:
- Judicial Councils are created by the Judicial Conduct and Disability Act, 28 U.S.C. which applies to Circuit Judges, not to Supreme Court Justices:
- Kavanaugh was a D.C. Circuit Court judge at the time of most of the behavior under complaint; but
- Kavanaugh’s elevation to the Supreme Court means that the Act no longer applies to him; and
- His elevation to the Supreme Court is “an intervening event” which removes him from any scrutiny by the 10th Circuit Judicial Council.
Following this topsy-turvy reasoning, the Judicial Council would have jurisdiction only if Kavanaugh had not been confirmed by the Senate. In effect, the Act would only apply to ethical missteps if no harm was done. “It’s like saying,” as Behrendt explained in the Washington Post, “we can prosecute a safecracker only if the safe proved to be empty,”—the kind of a tortured legal reasoning that Gilbert & Sullivan would have deeply appreciated.
The Judicial Council also declared that
the Act and Rules provide that a misconduct proceeding can be concluded because of "intervening events," namely, circumstances where an individual is no longer a covered judge.
However, this reasoning seems to be a misreading of the language of the Act. As Behrendt points out:
the Judicial Council truncated the relevant rule, which allows for a complaint to be dismissed if “intervening events render some or all of the allegations moot or make remedial action impossible.” Kavanaugh’s elevation to the Supreme Court did not render moot the questionable behavior that helped him win that seat. Nor is remedial action impossible now that Judge Kavanaugh is Justice Kavanaugh. Brett Kavanaugh can still issue the kind of full apology he has avoided up until now, and he can recuse himself from highly partisan cases (those with Trump as a party, for example.)
In order to avoid ruling against Kavanaugh, the Judicial Council also had to overcome the relevant Commentary on the Act which states that
as long as the subject of a complaint performs judicial duties, a complaint alleging judicial conduct must be addressed.
Even though Kavanaugh can be observed performing judicial duties on a daily basis as a Justice on the Supreme Court, the 10th Circuit Judicial Council found a way to conclude that Kavanaugh is “no longer performing judicial duties.” The Council argued that the Act limits “judicial duties” to those of the Court of Appeals but not those of the Supreme Court. Hence Kavanaugh is no longer performing judicial duties. Here again, the Judicial Council’s reasoning is of the kind that Gilbert & Sullivan greatly savored.
As New York University law professor Stephen Gillers has argued, “Any violation of the Code does not disappear because he is now on another federal court.”
What Was Chief Justice Roberts Thinking?
Chief Justice Roberts' letter directed the 10th Circuit “to exercise the powers of a judicial council with respect to the identified complaints.” Now the 10th Circuit has concluded it has no such powers. What was Chief Justice Roberts thinking when he issued his directive?
One possibility is that Roberts had given no thought as to whether the Tenth Circuit had jurisdiction, and like the rest of us, didn’t know what to expect. Given his abiding interest in enhancing the standing and stature of the Supreme Court, that seems supremely unlikely.
Another possibility is that he was expecting the 10th Circuit to decline jurisdiction, after which he could say that he had done his best but sadly there was nothing to be done. This also seems unlikely since it would leave the Supreme Court tainted for a generation with a Justice who has multiple “serious” unresolved ethical complaints made against him—hardly an outcome the Chief Justice can have anticipated with relish.
Would we be naïve in thinking that Chief Justice Roberts actually meant what he said and was expecting the 10th Circuit Judicial Council to rule on the substance of the judicial ethics complaints against Kavanaugh? The complaints concerned obvious breaches of judicial ethics. By choosing the Republican-oriented 10th Circuit, Roberts ran no risk of being accused of stacking the deck against Kavanaugh. He was inviting the 10th Circuit to state the obvious. If that was his intent, the Chief Justice was thwarted by the Judicial Council’s decision that although the complaints were “serious,” it had no jurisdiction.
We are thus now in the strange situation that there seem to be no rules of ethical conduct for Supreme Court Justices. Once upon a time it might have been argued that there was no need to any such rules, since Supreme Court Justices were obviously beyond reproach. With the events of 2018, that is no longer the case.
Gabe Roth, executive director of Fix the Court, a nonpartisan group that seeks more accountability on the high court, told the Washington Post that “it is wholly unsatisfactory to anyone looking for moral leadership from our nation’s top jurists.” The decision of the Judicial Council, he said in a statement, underscores the need for the Supreme Court to adopt its own code of conduct or for Congress to write one.”
In 2011, Chief Justice Roberts indicated that he did not believe that Congress has any right to make ethics rules for the Supreme Court. In a 2011 report, Roberts wrote that “the justices consult the code to address specific ethical matters, and comply with financial rules and limitations on the receipt of gifts and outside earned income. But they do so voluntarily, Roberts wrote, hinting that congressional attempts to impose standards may violate the separation of powers.”
Among the questions facing Chief Justice Roberts is this. If it is true that the Supreme Court Justices "voluntarily comply" with normal standards of judicial ethics, when are we going to see this "voluntary compliance" in the case of the 83 "serious" judicial ethics complaints against Justice Kavanaugh? If the Justices can pick and choose when they want to following normal standards of judical ethics or not, hasn't the Supreme Court turned itself into yet another institution that is acting as though it is above the law?
In any event, is the learned Chief Justice correct that Congress is powerless to impose ethical standards on the Supreme Court? Supreme Court Justices are subject to other laws passed by Congress, like the law against bribery. "A ban on bribery is effectively a restriction on how judges do their jobs. If Congress can pass that, why can’t Congress impose other legal restrictions on conduct that potentially perverts the course of justice?"
What Is Justice?
Meanwhile, at least for now, Kavanaugh carries on with his judicial duties with a life-tenured seat on the Supreme Court, despite everything. Since his arrival at the Court , the Justices have been conducting themselves with extreme collegiality and the Chief Justice has been carefully avoiding any political drama. No one is impolite enough to mention the 83 “serious” ethics complaints against one of their members, that remain unaddressed.
Outside the court, Kavanaugh has kept a low profile, although he has been treated as a celebrity by the President and at Republican events. Kavanaugh’s supposed “martyrdom” was a key theme in the Republican successful mid-term election campaign to defend the Senate. Despite Kavanaugh's furious insistence during the hearings that his life had been destroyed and he might never coach again, he has resumed his position as a girls’ basketball coach. He recently received a “hero’s welcome” at his old prep school. Overall, things are going just fine.
Life goes on. But to call this justice is to misunderstand the meaning of the term and construe it in the sense that Gilbert & Sullivan, not James Madison and the Founding Fathers of this country, intended.
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