Chief Justice Roberts Requests Tenth Circuit To Investigate Kavanaugh Ethics Questions

Stock SectorOctober 11, 201810min17
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While the Republican leadership celebrates the seating of Brett Kavanaugh as a Justice of the U.S. Supreme Court, Chief Justice Roberts yesterday requested the Tenth Circuit to review more than twelve ethics complaints that have been made against Kavanaugh. The complaints concern Kavanaugh’s behavior at the Senate Judiciary Committee on September 27.

U.S. Supreme Court Chief Justice John Roberts (AP Photo/Nati Harnik)

These complaints were initially received by the U.S. Court of Appeals prior to Kavanaugh’s seating on the Supreme Court. Chief Judge Merrick Garland — whose nomination to the Supreme Court was blocked by Senate Republicans—recused himself from the matter. The complaints were then passed to Judge Karen LeCraft Henderson, whom President George H.W. Bush nominated to the bench.

Judge Henderson dismissed some of the complaints made against Judge Kavanaugh as frivolous. But she concluded that more than a dozen complaints were substantive enough to warrant investigation by an impartial panel and that they should not be handled by Judge Kavanaugh’s fellow judges in the D.C. Circuit. She referred them to Chief Justice Roberts, who has now referred them to the 10th Circuit.

The Legal Basis Of The Ethics Complaints

The complaints were not made without legal basis. More than 2,400 law professors have determined that Kavanaugh has “displayed a lack of judicial temperament that would be disqualifying for any court.”

Former Supreme Court Justice John Paul Stevens also stated that Judge Kavanaugh has demonstrated bias and is “not fit for the Supreme Court.” Former Justice Stevens, in remarks to retirees in Boca Raton, Fla, declared that Kavanaugh’s statements on September 27 revealed prejudices that would make it impossible for him to do the court’s work. “They suggest that he has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities.”

Judge Brett Kavanaugh himself has expressed regrets in the Wall Street Journal, about “a few things [he] should not have said” in his testimony before the Senate Judiciary Committee, though without giving specifics.

Brett Kavanaugh, U.S. Supreme Court associate justice Photographer: Andrew Harnik/Pool via Bloomberg

Now, Chief Justice Roberts has requested Judge Timothy M. Tymkovich, the chief circuit judge of the Denver-based Tenth Circuit, to review the complaints against Kavanaugh and “any pending or new complaints related to the same subject matter.” Judge Tymkovich has the option of handling the complaints himself, dismissing them or appointing a special committee to examine them.

Unlike the allegations of Justice Kavanaugh’s sexual misconduct and excessive drinking as a teenager, there is no question here about the facts as to what happened, since they occurred on national television. At the Senate Judiciary Committee hearing, Judge Kavanaugh’s behavior was startingly non-judicial in nature. From the outset in his prepared statement, he was angry and confrontational in manner. He was aggrieved and complaining about the situation in which he found himself. He was impolite and challenged the integrity of the Senate questioners and portrayed the hearing in the starkest partisan terms.

Kavanaugh made no apparent effort to bring a lifetime of professional expertise and perspective to bear on the difficult issues under consideration. Instead, he was dismissive of the inquiry and was careless on matters of fact that had been asserted by other potential witnesses on the subject under discussion. He made obfuscating responses to questions about the meaning of words. He made no apparent effort to hold emotions in check and shouted at U.S. Senators and accused them of wrongdoing. He repeatedly sought to shift the attention and blame to others for what was taking place. He resisted further legal inquiry into the issues under discussion. He approached the inquiry with an attitude of entitlement and self-pity. His conduct was remarkably unprofessional.

Although Kavanaugh’s behavior was the very opposite of what one hopes for and expects in a judge, it succeeded in its immediate intent of winning the applause of President Trump and his Republican supporters. Yet his performance, which has been accurately satirized on Saturday Night Live, appalled the rest of the country and raised strictly legal questions about his temperament to sit as a judge on any federal court, let alone the Supreme Court.

Next Steps

The situation is unique in that never before has a Supreme Court appointee joined the court at a time when a fellow judge has concluded that misconduct claims against that appointee warrant review and when a former Supreme Court Justice has concluded that the appointee’s behavior was disqualifying.

Technically, Supreme Court justices are not subject to the misconduct rules governing these claims. But if complaints against a sitting Justice are not dealt with in an impartial apolitical manner, then there will be an asterisk against Judge Tymkovich and Justice Kavanaugh for the remainder of their terms, and indeed the U.S. Supreme Court itself.

Senate Majority Leader Mitch McConnell (Photo by Chip Somodevilla/Getty Images)

There is therefore a risk that Mitch McConnell’s seeming accomplishment of a “rock-solid Republican majority on the Supreme Court for a generation” may yet turn out to be something of a Pyrrhic victory.

And read also:

Kavanaugh: Why The Supreme Court Faces A Generation Of Ethics Questions

Why Judge Kavanaugh’s Regrets Cannot Be Accepted Without More

How Judge Kavanaugh Bombed His Job Interview With The Senate Judiciary Committee

Kavanaugh: How The Republican Leadership Broke The Four Rules Of Crisis Management

Kavanaugh: Why Fresh Allegations Raise Further Crisis-Management Challenges

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