Larry Behrendt practiced law for more than 30 years in New York and California.
Two weeks ago, the Judicial Council of the U.S. Court of Appeals for the 10th Circuit dismissed 83 judicial misconduct complaints filed against Brett M. Kavanaugh in connection with his nomination to the Supreme Court. The identities of the complainers have been kept secret, but nothing prevents them from coming forward. I am coming forward. I’m one of those 83 complainers.
I’m a retired attorney who is on no one’s short list to serve on the Supreme Court. But I listened on Sept. 27 while 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.” I was shocked to hear a Supreme Court nominee carry on like a crazed conspiracy theorist.
Turns out, there’s a rule against federal judges behaving like this. Congress passed the Judicial Conduct and Disability Act in 1980, and the rules under that act state that it’s misconduct for a federal judge to make “inappropriately partisan statements.” I may be retired, but I think I know an inappropriately partisan statement when I hear one.
So a few days later, I filed a complaint against Kavanaugh under the 1980 act. It ended up before Chief Justice John G. Roberts Jr., who punted it, among others, to the Judicial Council of the 10th Circuit in Denver. The complaints varied in quality: Some were written like formal briefs, and others were submitted on postcards. They accumulated in Denver for more than two months. Meanwhile, Kavanaugh was confirmed to the Supreme Court and President Trump proclaimed that Kavanaugh had been the victim of a Democratic Party “hoax.” There’s no rule against a president making inappropriately partisan statements.
The 10th Circuit Judicial Council finally announced its dismissal of the 83 complaints on Dec. 18, explaining its decision roughly as follows: (1) The 1980 act applies to circuit judges but not Supreme Court justices, (2) Kavanaugh was a D.C. Circuit Court judge during his confirmation hearings and when I filed my complaint, but (3) he’s a Supreme Court justice now. Evidently a circuit judge nominated to the Supreme Court can be held responsible for his partisan misconduct before the Senate, so long as the Senate fails to confirm the nominee. But if the nominee wins the approval of a partisan Senate, then his inappropriate partisanship is excused. This reasoning doesn’t make sense to me. It’s like saying we can prosecute a safecracker only if the safe proved to be empty.
You may not agree with the substance of my complaint. And given the political divide in the present Senate, you may think Kavanaugh’s partisanship was unavoidable. But I should have had the chance to argue my point.
Granted, the 1980 act does not apply to the conduct of Supreme Court justices. But the act fails to say what to do when a judge engages in misconduct before becoming a Supreme Court justice. Here, the Judicial Council argued that Kavanaugh’s elevation to the Supreme Court was an “intervening event” under the 1980 act and its accompanying rules, and that “a misconduct proceeding can be concluded because of ‘intervening events.’ ” Unfortunately, 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 win him 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 let Kavanaugh off the hook, the Judicial Council skipped around relevant commentary stating that “as long as the subject of a complaint performs judicial duties, a complaint alleging judicial conduct must be addressed.” Here, the Judicial Council interpreted “judicial duties” to refer only to duties of judges covered under the 1980 act — leading the council to the strained conclusion that a Supreme Court justice does not perform “judicial duties.” Instead of this tortured reasoning, I’d say we’ve appended yet another exception to the adage that no one is above the law. The 1980 act assigned to the courts a responsibility to address judges who engage in misconduct, and the 10th Circuit Judicial Council read the act looking for a way out. It appears that federal judges can indeed make inappropriately partisan statements, so long as they are important judges with powerful partisan friends.