The Supreme Court’s newest member, Justice Brett Kavanaugh, continues to make the news. Within days of his confirmation as an Associate Justice of the Supreme Court, Chief Justice Roberts granted a request to transfer a series of ethics complaints against Kavanaugh to the Tenth Circuit. The D.C. Circuit Court of Appeals initially received the complaints, but Judge Karen LeCraft Henderson invoked Rule 26 of the Federal Court’s Rules for Judicial-Conduct and Judicial-Disability Proceedings, which gives a chief judge the authority to request the Chief Justice to transfer a case for judicial misconduct to another Circuit for further review. (The chief judge of the D.C. Circuit is Merrick Garland, President Obama’s nominee to fill Justice Scalia’s seat after his death. The Senate refused to consider the nomination. Judge Garland recused himself from reviewing the complaints against Kavanaugh.)
Many of the claims were dismissed based on a frivolousness, but twelve remained credible enough to warrant further investigation—prompting the request that Chief Justice Roberts transfer the complaints to another Circuit. Judge Henderson wrote in a public statement last week, “[t]he complaints seek investigations only of the public statements he has made as nominee to the Supreme Court of the United States[.]” Nonetheless, circuit officials cited “concern that local disposition may weaken public confidence in the process.”
Forbes Senior Contributor Steven Denning has written several articles on the ongoing ethics complaints, citing Kavanaugh’s partisan remarks, misstatement of fact about his background, and general behavior during the confirmation hearings as the reasoning behind the allegations. Justice Kavanaugh himself admitted in a Wall Street Journal opinion piece on October 4th that he regretted making several statements during the final day of his confirmation hearing on September 27th (when the Judiciary Committee considered Christine Blasey Ford’s allegations that he had sexually assaulted her while in high school), although he was not specific about which statements he regretted.
The questions that likely remain before the Tenth Circuit are whether Justice Kavanaugh’s actions at the September hearings violated the code of judicial conduct and what would be appropriate discipline if a violation is found. Professor Stephen Gilles of NYU Law stated, “violation of the Code does not disappear because [Kavanaugh] is now on another federal court.” The code explicitly forbids judges from making “inappropriate partisan statements” in public. Furthermore, the code evaluates intent, severity, ongoing patterns, and effects of a judge’s statements.
Denning stated in his Forbes article this week that there are four possible courses of action that Chief Judge of the Tenth Circuit Timothy Tymkovich could take regarding Kavanaugh’s ethics complaints: (1) dismissal, (2) voluntary corrective action, (3) intervening events, and (4) referral to a special committee of judges.
Dismissal on the common grounds for dismissal, like jurisdiction, disputes of fact, and substance, would be difficult in this case because Chief Justice Roberts referred the matter to the Tenth Circuit and the alleged misconduct occurred during a televised national event. Indeed, more than 2,400 law professors signed a letter urging the Senate not to confirm Kavanaugh due to his conduct at the hearing.* Others, such as syndicated columnist Ruben Navarrette Jr., writing in USA Today, wrote that Kavanaugh’s emotional testimony shouldn’t be disqualifying for the Supreme Court. Given public opinion on the matter – according to a poll by the Washington Post and ABC news (raw numbers here), 51% of Americans disapprove of Kavanaugh being on the Supreme Court while only 41% approve, and 53% of those polled said they would support another investigation into Kavanaugh – if Democrats take control of the House after next month’s elections, they may pursue that inquiry. If that happens, according to Navarrette, the time will have come for a national dialogue on judicial temperament, writing that judges with an “emotional streak” remind him that “they’re human” and “have a heart.” Citing the Larry Nassar case from earlier this year, Navarrette praised the judge, Rosemarie Aquilina, for “ripping [Nassar] to shreds” prior to sentencing him to prison for up to 175 years. So rather than thinking that emotion isn’t compatible with being a judge, Navarrette argues, it’s “an essential part of the job.”
Additionally, some of the other news about Justice Kavanaugh has devolved into triviality. For example, a group of witches announced that they would place a “hex” on Justice Kavanaugh as well as those who have committed sexual assault or perpetuate patriarchy this weekend in Brooklyn. The announcement prompted a response by a group of exorcists and Catholics who have a plan to “pray and fast, not just for the protection of Kavanaugh, but for those who wish him harm.” More here.
Written by ISCOTUS Fellows Michael Halpin and Eva Dickey, both of the Chicago-Kent Class of 2020, edited by ISCOTUS Editorial Coordinator, Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS co-director Carolyn Shapiro.
*Both Carolyn Shapiro and Christopher Schmidt, co-directors of ISCOTUS, signed this letter.