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Brett Kavanaugh, U.S. Supreme Court associate justice nominee Photographer: Andrew Harnik/Pool via Bloomberg
Already, Chief Justice John G. Roberts Jr. has received more than a dozen judicial misconduct complaints against Judge Kavanaugh.
These complaints were initially received by U.S. Court of Appeals. Chief Judge Merrick Garland — whose nomination to the Supreme Court by President Barack Obama was blocked by Senate Republicans — recused himself from the matter. The complaints were then passed to Judge Karen LeCraft Henderson, whom President George H.W. Bush nominated to the bench.
Justices of the U.S. Supreme Court Photographer: Andrew Harrer/Bloomberg
The Chief Judge of a circuit court normally reviews complaints against judges in his or her circuit. Most are dismissed because they lack a factual basis to make such a claim or are simply disagreeing with a judge’s decision.
In this instance, Judge Henderson dismissed some complaints against Judge Kavanaugh as frivolous but concluded that other complaints were substantive enough to warrant investigation and that they should not be handled by Judge Kavanaugh’s fellow judges in the D.C. Circuit. In a statement Saturday, Judge Henderson said the complaints centered on statements that Kavanaugh made during his Senate confirmation hearings.
Under the law, “any person may file a misconduct complaint in the circuit in which the federal judge sits,” Judge Henderson said in the statement. “The complaints seek investigations only of the public statements he has made as a nominee to the Supreme Court of the United States.”
According to the Washington Post, most of the complaints center on Kavanaugh’s answers about his work in the Bush administration and his lack of judicial temperament in his partisan comments about Democrats.
The complaints are not isolated:
- More than 2,400 law professors have determined that Kavanaugh has “displayed a lack of judicial temperament that would be disqualifying for any court.”
- Former Supreme Court Justice John Paul Stevens has stated that Judge Kavanaughas demonstrated bias and is “not fit for the Supreme Court.”
Former Supreme Court Justice John Paul Stevens Photographer: Dennis Brack/Bloomberg News
- Judge Brett Kavanaugh himself expressed his regrets in the Wall Street Journal, about “a few things [he] should not have said” in his testimony on September 27 before the Senate Judiciary Committee.
Chief Justice Roberts has chosen for the time being not to refer them to a judicial panel for investigation. According to the Washington Post, “Roberts did not see an urgent need for them to be resolved by the judicial branch while he continued to review the incoming complaints.”
The situation is unusual from a number of angles:
- Never before has a Supreme Court nominee joined the court at a time when a fellow judge has concluded that misconduct claims against that nominee warrant review.
- Judge Roberts himself has a long relationship with Judge Kavanaugh. As an appointee of President George W. Bush, Roberts has for many years hired Kavanaugh clerks to work for him at the Supreme Court.
- Former President Bush credits Kavanaugh in his book with helping him choose Roberts for the high court when Kavanaugh was a White House lawyer.
- Given these long relationships, there is an issue from a technical point of view whether Chief Justice Roberts needs to recuse himself from assessing the ethical questions concerning Judge Kavanaugh.
- Already, the Post reports, “Roberts’s decision not to immediately refer the cases to another appeals court has caused some concern in the legal community.”
Although there is nothing normal about the current situation, the standard process when ethical issues are raised about a sitting judge is to refer the matter to an independent panel of judges. If Chief Justice Roberts does not recuse himself and attempts to dismiss the ethics questions without review by an independent panel of judges, ethical complaints about his own conduct may be raised.
Technically, Supreme Court justices are not subject to the misconduct rules governing these claims. But if complaints against sitting Justices are in turn suppressed, then there will be an asterisk against Chief Justice Roberts and the Court for the remainder of their terms.
“If Justice Roberts sits on the complaints, then they will reside in a kind of purgatory and will never be adjudicated,” said Stephen Gillers, a professor at New York University Law School and an expert on Supreme Court ethics. But the issues won’t just disappear: Chief Justice Roberts and Justice Kavanaugh may find themselves residing in the same purgatory unless and until the complaints are definitively dealt with.
As a result, Chief Justice Roberts may see the political expedience and legitimate interests of the Supreme Court itself in having with the ethical questions that have been raised against Judge Kavnaaugh dealt with in the standard manner with a panel of independent judges from the Federal bench.
Even if the ethical questions are dealt with by a credible panel of independent judges, the questions won’t end there.
- Already, House Democrats have announced that they will open an investigation into the nomination process of Judge Kavanaugh if they win control of the House in November.
- It is also inevitable that, going forward, every litigant before the Supreme Court involving a case with any political implications will be making the argument that Justice Kavanaugh needs to recuse himself from its adjudication.
- Even if Justice Kavanaugh is absolved from general ethical wrongdoing for his statements before the Senate Judiciary Committee, any such conclusion will not prevent litigants from raising the question of bias in any specific case before the Court.
- Given the large number of cases with political implications, such applications for recusal are likely to be numerous.
- This has led former Justice Stevens, in remarks to retirees in Boca Raton, Fla, to declare that Kavanaugh’s statements on September 27 revealed prejudices that would make it impossible for him to do the court’s work. “They suggest that he has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities.”
The victory of the “rock-solid Republican majority for a generation” may thus turn out to be something of a Pyrrhic victory.
And read also:
Why Judge Kavanaugh’s Regrets Cannot Be Accepted Without More
The Kavanaugh Nomination Careens From Crisis To Calamity
How Judge Kavanaugh Bombed His Job Interview With The Senate Judiciary Committee
Kavanaugh: How The Republican Leadership Broke The Four Rules Of Crisis Management
Kavanaugh: Why Fresh Allegations Raise Further Crisis-Management Challenges
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‘Pyrrhic victory” is named after King Pyrrhus of Epirus, whose army suffered irreplaceable casualties in defeating the Romans at the Battle of Heraclea in 280 BC and the Battle of Asculum in 279 BC. A Pyrrhic victory is a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat.
–Wikipedia
As the Republican leadership celebrates yesterday’s seating of Judge Brett Kavanaugh on the Supreme Court and the prospect of “a rock-solid Republican majority for a generation,” the Supreme Court itself faces the prospect of a generation of ethical questions.
Brett Kavanaugh, U.S. Supreme Court associate justice nominee Photographer: Andrew Harnik/Pool via Bloomberg
Already, Chief Justice John G. Roberts Jr. has received more than a dozen judicial misconduct complaints against Judge Kavanaugh.
These complaints were initially received by U.S. Court of Appeals. Chief Judge Merrick Garland — whose nomination to the Supreme Court by President Barack Obama was blocked by Senate Republicans — recused himself from the matter. The complaints were then passed to Judge Karen LeCraft Henderson, whom President George H.W. Bush nominated to the bench.
Justices of the U.S. Supreme Court Photographer: Andrew Harrer/Bloomberg
The Chief Judge of a circuit court normally reviews complaints against judges in his or her circuit. Most are dismissed because they lack a factual basis to make such a claim or are simply disagreeing with a judge’s decision.
In this instance, Judge Henderson dismissed some complaints against Judge Kavanaugh as frivolous but concluded that other complaints were substantive enough to warrant investigation and that they should not be handled by Judge Kavanaugh’s fellow judges in the D.C. Circuit. In a statement Saturday, Judge Henderson said the complaints centered on statements that Kavanaugh made during his Senate confirmation hearings.
Under the law, “any person may file a misconduct complaint in the circuit in which the federal judge sits,” Judge Henderson said in the statement. “The complaints seek investigations only of the public statements he has made as a nominee to the Supreme Court of the United States.”
According to the Washington Post, most of the complaints center on Kavanaugh’s answers about his work in the Bush administration and his lack of judicial temperament in his partisan comments about Democrats.
The complaints are not isolated:
- More than 2,400 law professors have determined that Kavanaugh has “displayed a lack of judicial temperament that would be disqualifying for any court.”
- Former Supreme Court Justice John Paul Stevens has stated that Judge Kavanaughas demonstrated bias and is “not fit for the Supreme Court.”
Former Supreme Court Justice John Paul Stevens Photographer: Dennis Brack/Bloomberg News
- Judge Brett Kavanaugh himself expressed his regrets in the Wall Street Journal, about “a few things [he] should not have said” in his testimony on September 27 before the Senate Judiciary Committee.
Chief Justice Roberts has chosen for the time being not to refer them to a judicial panel for investigation. According to the Washington Post, “Roberts did not see an urgent need for them to be resolved by the judicial branch while he continued to review the incoming complaints.”
The situation is unusual from a number of angles:
- Never before has a Supreme Court nominee joined the court at a time when a fellow judge has concluded that misconduct claims against that nominee warrant review.
- Judge Roberts himself has a long relationship with Judge Kavanaugh. As an appointee of President George W. Bush, Roberts has for many years hired Kavanaugh clerks to work for him at the Supreme Court.
- Former President Bush credits Kavanaugh in his book with helping him choose Roberts for the high court when Kavanaugh was a White House lawyer.
- Given these long relationships, there is an issue from a technical point of view whether Chief Justice Roberts needs to recuse himself from assessing the ethical questions concerning Judge Kavanaugh.
- Already, the Post reports, “Roberts’s decision not to immediately refer the cases to another appeals court has caused some concern in the legal community.”
Although there is nothing normal about the current situation, the standard process when ethical issues are raised about a sitting judge is to refer the matter to an independent panel of judges. If Chief Justice Roberts does not recuse himself and attempts to dismiss the ethics questions without review by an independent panel of judges, ethical complaints about his own conduct may be raised.
Technically, Supreme Court justices are not subject to the misconduct rules governing these claims. But if complaints against sitting Justices are in turn suppressed, then there will be an asterisk against Chief Justice Roberts and the Court for the remainder of their terms.
“If Justice Roberts sits on the complaints, then they will reside in a kind of purgatory and will never be adjudicated,” said Stephen Gillers, a professor at New York University Law School and an expert on Supreme Court ethics. But the issues won’t just disappear: Chief Justice Roberts and Justice Kavanaugh may find themselves residing in the same purgatory unless and until the complaints are definitively dealt with.
As a result, Chief Justice Roberts may see the political expedience and legitimate interests of the Supreme Court itself in having with the ethical questions that have been raised against Judge Kavnaaugh dealt with in the standard manner with a panel of independent judges from the Federal bench.
Even if the ethical questions are dealt with by a credible panel of independent judges, the questions won’t end there.
- Already, House Democrats have announced that they will open an investigation into the nomination process of Judge Kavanaugh if they win control of the House in November.
- It is also inevitable that, going forward, every litigant before the Supreme Court involving a case with any political implications will be making the argument that Justice Kavanaugh needs to recuse himself from its adjudication.
- Even if Justice Kavanaugh is absolved from general ethical wrongdoing for his statements before the Senate Judiciary Committee, any such conclusion will not prevent litigants from raising the question of bias in any specific case before the Court.
- Given the large number of cases with political implications, such applications for recusal are likely to be numerous.
- This has led former Justice Stevens, in remarks to retirees in Boca Raton, Fla, to declare that Kavanaugh’s statements on September 27 revealed prejudices that would make it impossible for him to do the court’s work. “They suggest that he has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities.”
The victory of the “rock-solid Republican majority for a generation” may thus turn out to be something of a Pyrrhic victory.
And read also:
Why Judge Kavanaugh’s Regrets Cannot Be Accepted Without More
The Kavanaugh Nomination Careens From Crisis To Calamity
How Judge Kavanaugh Bombed His Job Interview With The Senate Judiciary Committee
Kavanaugh: How The Republican Leadership Broke The Four Rules Of Crisis Management
Kavanaugh: Why Fresh Allegations Raise Further Crisis-Management Challenges
