Judicial Misconduct Council Dismisses Complaints Against Brett Kavanaugh

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Kevin Daley Supreme Court correspondent
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A judicial conduct council dismissed dozens of complaints lodged against Supreme Court Justice Brett Kavanaugh alleging he lied to the Senate Judiciary Committee during his confirmation hearings.

A 10-page decision released Tuesday concluded Kavanaugh’s purported misdeeds can no longer be investigated by a judicial panel due to his confirmation to the Supreme Court.

[READ the decision]

Over 80 misconduct complaints were submitted to Kavanaugh’s old court, the U.S. Court of Appeals for the D.C. Circuit, after Democratic lawmakers and liberal activists accused him of lying to the Judiciary Committee about his connection to particular policies or episodes of interest during his service in the George W. Bush administration.

The chief judge of the relevant court typically handles such complaints, in this case Judge Merrick Garland, but Garland recused himself from the matter. Judge Karen LeCraft Henderson disposed of the complaints by referring them to Chief Justice John Roberts. In turn, Roberts forwarded them to the 10th U.S. Circuit Court of Appeals for further proceedings.

Judge Timothy Tymkovich, the 10th Circuit’s chief judge, chaired the investigatory panel. Some observers criticized that move, as Kavanaugh worked on judicial nominations in the White House counsel’s office when Tymkovich was elevated to the federal bench.

As was widely expected, the panel concluded Tuesday it had no power to pursue the allegations since Kavanaugh, as a Supreme Court justice, is no longer subject to the Judicial Conduct and Disability Act. That statute covers federal magistrate, district, circuit, and bankruptcy judges but excludes Supreme Court justices. (RELATED: The Supreme Court Has Begun Its Assault On The Administrative State)

“The allegations contained in the complaints are serious, but the Judicial Council is obligated to adhere to the Act,” Tuesday’s order reads. “Lacking statutory authority to do anything more, the complaints must be dismissed because an intervening event — Justice Kavanaugh’s confirmation to the Supreme Court — has made the complaints no longer appropriate for consideration under the Act.”

Brett Kavanaugh testifies before the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill. Win McNamee/Pool via REUTERS

Brett Kavanaugh testifies before the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill. Win McNamee/Pool via REUTERS

Gabe Roth of Fix the Court, a nonpartisan watchdog that lobbies for greater transparency in the federal courts, said Tuesday’s decision shows judicial conduct rules are antiquated and in need of reform.

“The Tenth Circuit 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,” Roth said.

“Today’s decision underscores the need for the Supreme Court to adopt its own code of conduct or for Congress to write one if the justices cannot be bothered, and it demonstrates that the judicial misconduct rubric passed four decades ago needs a serious rewrite,” he added.

A copy of the order will be forwarded to congressional committees. The incoming chairman of the House Judiciary Committee, Democratic Rep. Jerry Nadler of New York, has suggested the Democratic Congress will investigate Kavanaugh for wrongdoing.

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