Kavanaugh Complaints Tossed by 10th Circuit

by Doug Chartier

Judicial Conduct and Disability Act doesn’t extend to Supreme Court justices, panel finds

LAW WEEK COLORADO

Judicial misconduct complaints filed against Justice Brett Kavanaugh were dismissed Tuesday by the Denver-based appeals court charged with reviewing them.

Kavanaugh faced 83 separate complaints alleging that he had made false statements to Congress and demonstrated partisan bias and “a lack of judicial temperament” during his confirmation hearings. In a 10-page order, a panel of judges from the 10th Circuit Court of Appeals and federal district courts dismissed the complaints because Kavanaugh, who ascended from the D.C. Circuit Court of Appeals to the Supreme Court in October, is no longer covered by the Judicial Conduct and Disability Act.

The Judicial Conduct and Disability Act allows a panel of judges, or Judicial Council, to investigate complaints against judges and discipline them. Supreme Court Chief Justice John Roberts transferred the bundled complaints against Kavanaugh to the 10th Circuit on Oct. 10 for review. The complaints are available on the 10th Circuit’s website with identifying information about the complainants redacted.

But as the panel noted, the statute’s definition of “judge” does not include Supreme Court Justices.

“[T]he complaints must be dismissed because, due to his elevation to the Supreme Court, Justice Kavanaugh is no longer a judge covered by the [Judicial Conduct and Disability] Act,” according to the order written by 10th Circuit Chief Judge Timothy Tymkovich.

Kavanaugh’s ascendance to the Supreme Court is an “intervening event” that can end a misconduct proceeding under the act, the panel held.

Tymkovich wrote that “the allegations contained in the complaints are serious,” but that the panel “is obligated to adhere to the Act.” The panel made no decision regarding the merits of the complaints against Kavanaugh.

The claims include allegedly false statements Kavanaugh made in his testimony to Congress during his Supreme Court confirmation hearings in September as well as hearings in 2004 and 2006. The complaints allege Kavanaugh falsely testified about his activities in the George W. Bush White House as well as his behavior prior to becoming a federal judge. In front of the Senate Judiciary Committee, Kavanaugh denied charges that he sexually assaulted California professor Christine Blasey Ford when they were in their teens.

Tymkovich denied a request from one of the complainants that he recuse himself from reviewing the complaints. The complainant claimed Tymkovich was conflicted because Kavanaugh had pushed for the chief judge’s confirmation back in 2003.

Tymkovich contended that Kavanaugh only had “limited involvement” in his confirmation. According to his order, a search for documents linking Kavanaugh to Tymkovich only turned up an email in which Kavanaugh, who worked for the Bush White House at the time, proposed a press release about a group of judicial nominees that included Tymkovich.