Supreme Court Justice Brett M. Kavanaugh faced complaints that he made false statements during his Senate confirmation hearings, displayed a lack of judicial temperament and made inappropriate partisan statements, among other claims. (Jabin Botsford/The Washington Post)
By Ann E. Marimow and Robert Barnes, The Washington Post (Reprinted with Permission)
The judicial council reviewing dozens of misconduct claims against Supreme Court Justice Brett M. Kavanaugh has dismissed the complaints that coincided with his contentious nomination battle.
“The allegations contained in the complaints are serious,” said the order from a Colorado-based appeals court, but must be dropped because ethics rules for the judiciary do not extend as high as the Supreme Court.
The 83 claims filed by lawyers, doctors, professors and other concerned citizens accuse Kavanaugh of making false statements during his Senate confirmation hearings, displaying a lack of judicial temperament, making inappropriate partisan statements and treating members of the Senate Judiciary Committee with disrespect, according to the 10-page order from the Judicial Council of the 10th Circuit.
The judiciary has the authority to investigate and discipline federal judges, the order says, but “the power only to resolve complaints concerning the conduct of covered judges.” Because Kavanaugh is no longer on the U.S. Court of Appeals for the D.C. Circuit, where he served for 12 years, the order concludes, the judicial council no longer has the authority to review his conduct.
Chief Justice John G. Roberts Jr. referred 15 judicial misconduct complaints to the 10th Circuit in October, a few days after the Senate confirmed Kavanaugh by one of the narrowest margins in history. The Colorado-based court subsequently received dozens more for a total of 83 through Dec. 13.
The complaints were initially filed in late September and early October with the D.C. Circuit, and some came as Kavanaugh faced allegations that he sexually assaulted Christine Blasey Ford when the two were in high school — accusations Kavanaugh vehemently denied.
A D.C. Circuit judge asked Roberts to refer the complaints to another court after determining that they should not be handled by Kavanaugh’s former colleagues.
Kavanaugh and Roberts declined to comment on the order Tuesday through a court spokeswoman. In a Wall Street Journal column after the Senate hearings, Kavanaugh acknowledged that his tone was “sharp” and that he “said a few things I should not have said” out of frustration at being wrongly accused. He pledged to be “even-keeled, open-minded, independent.”
Gabe Roth, executive director of Fix the Court, a nonpartisan group that seeks more accountability on the high court, said Tuesday that the judicial council “may have reached the conclusion required by law, but it is wholly unsatisfactory to anyone looking for moral leadership from our nation’s top jurists.” The decision, 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.
Although the rules say that “a judge remains subject to the act as long as he or she ‘performs judicial duties,’ ” the order says, “those judicial duties must still fall within the jurisdiction” of the rules, which do not cover the high court.
The matter was handled by eight judges, and the order was signed by Chief Judge Timothy M. Tymkovich, a former solicitor general of Colorado who was nominated to the bench by President George W. Bush.
There have been numerous congressional attempts to have conduct codes and other laws governing federal judges also apply to Supreme Court justices. But there are questions about whether Congress has such power.
In his 2011 “Year-End Report on the Federal Judiciary,” Roberts wrote that there is a “fundamental difference” between the Supreme Court, established by the Constitution, and lower federal courts, whose design was left for Congress.
In that report, Roberts said 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.
“The Court has never addressed whether Congress may impose those requirements on the Supreme Court,” Roberts wrote.