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Carol D. Leonnig
A national investigative journalist focused on the White House and the government's responsibility
Tom Hamburger
An investigative reporter focused on the intersection of money and politics in Washington
Chief Justice John G. Roberts Jr. has received more than a dozen complaints of judicial misconduct against Supreme Court candidate Brett M. Kavanaugh in recent weeks, but has chosen for the moment not to refer them to a judicial committee for investigation.
A US Court of Appeals judge for the CC circuit – the court where Kavanaugh sits – has sent a series of complaints to Roberts from three weeks on, according to four informed people.
This judge, Karen LeCraft Henderson, had dismissed the other complaints against Kavanaugh for frivolous, but concluded that some were substantial enough that they would not be dealt with by other Kavanaugh judges on the CC circuit.
In a statement Saturday, Henderson acknowledged the complaints and said they focused on Kavanaugh's statements during his confirmation hearings before the Senate.
According to the law, "any person may file a complaint of misconduct in the circuit in which the federal judge sits," she said in her statement. "The complaints do not concern any behavior on the part of Judge Kavanaugh. The complaints relate only to the public statements he made as a candidate for the US Supreme Court. "
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The complaints were filed while Kavanaugh's examination intensified while allegations that he had sexually assaulted a girl while they were in high school. Kavanaugh vehemently denied the charges, as well as two other charges of inappropriate behavior.
Those familiar with the case say that the allegations contained in the complaints – that Kavanaugh was dishonest and lacked judicial temperament in his testimony in the Senate – had already been widely discussed in the Senate and in the public sphere. Roberts did not consider it urgent to solve these problems by the judiciary while he was continuing to review future complaints, they said.
The situation is very unusual, said legal experts and several people familiar with the subject. Never before has a Supreme Court nominee been willing to join the court, while another judge recommended that a series of complaints of misconduct against this candidate be examined.
Roberts' decision not to refer cases to another court of appeal immediately has raised some concerns within the legal community. According to legal experts, if Kavanaugh is confirmed, the details of the misconduct complaints against him may not be made public and will be dismissed. Supreme Court judges are not subject to the rules of misconduct governing these claims.
"If Justice Roberts is seized of the complaints, they will reside in some kind of purgatory and will never be judged," said Stephen Gillers, a professor at the New York University School of Law and an expert in ethics at the University of New York. Supreme Court. "This is not how the rules provided that the process would work."
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The Senate is expected to vote to confirm Kavanaugh on Saturday afternoon.
Even though Roberts had returned the complaints, it may not have had any practical impact. Returning the case to another court of appeal could make the complaints public. But it usually takes months for a court to rule on the truth of such misconduct complaints. They will not be resolved before the Senate vote on Kavanaugh's candidacy.
Roberts, appointed by President George W. Bush, has for many years hired Kavanaugh clerks to work at the Supreme Court. Bush, in his book, credits Kavanaugh with helping him choose Roberts for the high court, while Kavanaugh was a White House lawyer.
Normally, complaints of misconduct are confidential and do not become public until they have been thoroughly investigated and are successful.
Most of these complaints relate to Kavanaugh's responses about his work in the Bush administration, according to people who know them well. They also accuse Kavanaugh of lacking judicial temper in his partisan comments on the Democrats, according to the people.
None of the complaints relate to allegations of sexual assault that jeopardized Kavanaugh's candidacy when Christine Blasey Ford came forward last month to say that Kavanaugh had sexually assaulted her as a teenager.
It is rare for a complaint of misconduct against a judge to go as far as the Chief Justice. The chief judge of a circuit court normally reviews complaints lodged against the judges of their circuit. Most are dismissed because they have no factual basis for making such a claim, or simply disagree with the judge's decision.
Henderson, who was appointed to the bench by President George HW Bush intervened to consider Kavanaugh's complaints because Chief Justice Merrick Garland – appointed to the Supreme Court by President Barack Obama but blocked by Senate Republicans – had withdrawn from the question.
The manner in which the complaints against Kavanaugh are handled is unusual, because Henderson concluded that the crime control circuit could not properly handle the investigation, so he was referred to the Chief Justice. This is done only in exceptional circumstances, in accordance with the rules of justice regarding misconduct.
Kavanaugh is a member of the DC Circuit Council, which normally rules on allegations of misconduct in this jurisdiction.
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