U.S. Supreme Court Chief Justice John Roberts caused a minor stir in the political-judicial continuum last week when he referred pending ethics complaints against newly sworn-in Justice Brett Kavanaugh to the Denver-based 10th U.S. Circuit Court of Appeals for investigation.
But legal scholars say it is practically guaranteed that nothing is going to come from the complaints — and it’s for the very same reason nominees like Kavanaugh draw so much scrutiny to begin with: Short of impeachment in Congress, Supreme Court justices are basically untouchable, ethicswise.
Still, there’s a lot to unpack about ethical rules for federal judges and about the complaints against Kavanaugh, specifically. Let’s start with the basics.
Federal judges are subject to a lengthy code of ethics
These massive documents, along with the Judicial Conduct and Disability Act, spell out in verbose detail the no-nos that judges should avoid and the process that other judges should follow in investigating ethics complaints and issuing discipline. (“A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.” Complaints brought by spurned litigants griping about a case result should be dismissed. Etc.)
It’s unclear what exactly the complaints against Kavanaugh are about. Before being sworn in as a Supreme Court justice, Kavanaugh was a judge on the U.S. Court of Appeals for the D.C. Circuit — federal circuit appeals courts, like the 10th and the D.C. circuit, are grouped by geography and are one step in authority below the Supreme Court.
The D.C. Circuit judge who referred the complaints to Roberts in the first place wrote in a statement that the complaints “do not pertain to any conduct in which Judge Kavanaugh engaged as a judge. The complaints seek investigations only of the public statements he has made as a nominee to the Supreme Court of the United States.”
So that has led to speculation that the complaints relate to whether Kavanaugh told the truth during his confirmation or whether some of his comments were inappropriately partisan.
In a normal situation, those could be cause for discipline, if substantiated. The chief judge of the appropriate circuit would look into them. He or she could refer them to a special committee of judges to investigate further and issue a report. Ultimately, the judge in question could be censured or asked to resigned — but not removed from the bench; only Congress can do that.
But the rules for misconduct proceedings specifically state that circuit court chief judges can dismiss complaints “because intervening events have made action on the complaint no longer necessary.”
And, in Kavanaugh’s case, “intervening events” covers a lot of ground.
“Once Kavanaugh was confirmed, he went beyond the reach of the statute”
That’s the opinion of Russell Wheeler, a fellow at the D.C.-based Brookings Institution who has also done a lot of work with the University of Denver’s Institute for the Advancement of the American Legal System. He is one of the nation’s premier experts on judicial ethics.
And he thinks there’s nothing the 10th Circuit can do here, even if the complaints have merit.
Read closely this sentence from the Code of Conduct for United States Judges: “This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.”
Similarly, the Judicial Conduct and Disability Act defines the judges covered by the law as, “a circuit judge, district judge, bankruptcy judge, or magistrate judge.”
Notice anyone missing in there?
Wheeler said the code does not apply to Supreme Court justices and the act does not authorize complaints against them. Roberts, in a 2011 year-end report, wrote that justices on the Supreme Court should and do look to the code of conduct for guidance on ethical matters. But, short of impeachment by Congress, Wheeler said there is no formal process for disciplining Supreme Court justices for ethical lapses.
“The logic of that — which some people dispute — is that you shouldn’t have lower court judges imposing discipline on the Supreme Court,” Wheeler said.
This issue has also popped up recently for justices other than Kavanaugh.
When Justice Ruth Bader Ginsburg made comments critical of then-presidential candidate Donald Trump in 2016 or when Justice Neil Gorsuch gave a speech to a conservative group at a Trump-owned hotel last year, both drew criticism but not discipline.
Now that Kavanaugh has joined them on the Supreme Court, what can 10th Circuit Chief Judge Timothy Tymkovich do to punish him even if he decides the ethics complaints are valid?
“I think it’s pretty obvious that he’ll have to do what the statute says, to conclude the proceedings,” Wheeler said.
But the 10th could start an ethical rebellion
There are other, more subtle, methods of correcting a judge’s behavior short of formal discipline.
Wheeler said public pressure or privately applied peer pressure can also have an impact, persuading a judge to correct course or resign. But DU law professor Eli Wald, himself an expert on legal ethics, posited another alternative.
What if the 10th Circuit viewed the referral of the Kavanaugh complaints as an invitation to investigate them more deeply — and then recommend that clearer rules and processes for handling ethical lapses by Supreme Court justices be enacted?
There are a number of hurdles to this, Wald said. Would Tymkovich — a George W. Bush appointee who made Trump’s shortlist of possible Supreme Court picks — want to raise this issue? Would the 10th Circuit view the Senate’s vote to confirm Kavanaugh as resolving any dispute around whether his comments during his nomination were inappropriate?
But Wald said it is possible that the 10th Circuit will decide that Roberts referred the complaints to it for a reason and choose to go bold.
“It’s not inconceivable,” he said. “I just find it unlikely.”
This story was updated at 10:00 a.m. on Oct. 18, 2018, to clarify how the Code of Conduct for United States Judges, the Judicial Conduct and Disability Act and the Rules for Judicial-Conduct and Judicial-Disability Proceedings interact with one another. Though breaches of the code could rise to the level of misconduct that warrants a disciplinary process, such a process is based on the definition of misconduct found in the act — not the code.
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