What’s happening with the ethics complaints against Brett Kavanaugh?
By Russell Wheeler
Reports about judicial misconduct complaints against now-Justice Brett Kavanaugh highlight once more the endemic confusion about the administration of the federal court system.
The bottom line is that the complaints won’t proceed because Supreme Court justices are not subject to the federal court’s disciplinary mechanism. Here’s an explanation:
A 1980 law, the Judicial Conduct and Disability Act, allows anyone to file “a written complaint” alleging judicial misconduct or performance-degrading disability. The Act defines misconduct as “conduct prejudicial to the effective and expeditious administration of the business of the courts.”
The complaint goes to the clerk of the court of appeals in the regional federal judicial circuit that includes the court of the judge who is the object of the complaint.[i] The Act tells the clerk, upon receipt of a complaint, to transmit it to the circuit chief judge. If the chief judge, for one reason or another, has recused himself or herself from a particular complaint or from all complaints, the complaint goes to the next most senior judge in active service.
Recently, the clerk of the court of appeals for the District of Columbia Circuit, on which now-Justice Kavanaugh served before his elevation, received at least fifteen complaints about him, probably related to his testimony at his court of appeals confirmation hearing in 2006 or at his Supreme Court hearing. The chief judge of the court of appeals, Merrick Garland (President Obama’s unsuccessful Supreme Court nominee) recused himself from the matter, so the complaints went to Judge Karen Henderson.
Judge Henderson, in turn, invoked Rule 26 of the federal courts’ Rules for Judicial-Conduct and Judicial-Disability Proceedings, which explains how courts should process complaints under the Act. Rule 26 authorizes a chief circuit judge, “[i]n exceptional circumstances,” to ask the chief justice to transfer a complaint to another circuit’s judicial council, the all-judge statutory body in each circuit with administrative oversight of the courts of the circuit. At Judge Henderson’s request, officials of the D.C. circuit council, in five letters between September 20 and October 5, transmitted 15 complaints about then-Judge Kavanaugh to the chief justice and asked him to transfer the complaints to another council. Each letter cited as the reason “the exceptional circumstances related to the . . . complaints and the concern that local disposition may weaken public confidence in the process.” (The Kavanaugh hearings began on September 4 and ended on September 27, the day that both Professor Christine Ford and he testified. The Senate confirmed him on October 6.)
The chief justice, in an October 10 letter to Tenth Circuit Chief Judge Timothy Tymkovich, said he had selected that circuit’s council to “exercise the powers of a judicial council with respect to” the 15 complaints and any more that may arise. Rule 26 and its “Commentary” directs the transferee judicial council to select the proper stage at which to begin consideration of the complaint. That means sending the complaints to Chief Judge Tymkovich.
Under the Act, a chief circuit judge, whether on a normal complaint or a transferred complaint, has several options, including conducting a “limited inquiry” to assess whether the complaint alleges facts reasonably in dispute. If so, the chief judge must appoint what the Act calls a “special committee” comprising the chief judge and other district and circuit judges to investigate them. That happens very rarely. Much more often, chief judges dismiss complaints on a variety of grounds, including that the complaint challenges the correctness of a judge’s ruling or is frivolous or lacks any factual foundation.
Or—and this most likely will happen to these Kavanaugh complaints—the chief judge may “conclude the proceeding” if he or she finds that “action on the complaint is no longer necessary because of intervening events.” The intervening event in Judge Kavanaugh’s case is his appointment as a Supreme Court justice. That is because the Act covers complaints only about circuit judges, district judges, bankruptcy judges, magistrate judges, and judges of some special courts. The theory behind excluding Supreme Court justices is that it would be at least unseemly for lower court judges to discipline Supreme Court justices (even though most states allow it and district judges are members of judicial councils, which can discipline circuit judges).
By the fact of their dates, the complaints against Kavanaugh concerned his conduct while he was a circuit judge, but he is no longer such a judge, and chief judges and councils no longer have disciplinary jurisdiction over him. While this particular situation is unprecedented—complaints filed against a covered judge who subsequently joins the Supreme Court—councils losing jurisdiction over complained-about judges is not. Last year, Chief Justice Roberts transferred from the judicial council of the Ninth Circuit to that of the Second, sexual harassment complaints against then-circuit judge Alex Kozinski. Judge Kozinski retired from his judgeship while the complaints were pending. Because of that, the Second Circuit council concluded the proceeding.
Judges leaving the bench to avoid discipline is a sore point. Chief Justice Roberts appointed a “Federal Judiciary Workplace Conduct Working Group” in the wake of sexual harassment allegations against several judges. The Group reported “concern about seeming lack of punishment for a judge who, under allegations of serious misconduct, retires or resigns and thereby terminates the disciplinary proceeding.” Nevertheless, the Act says what it says, and it says chief judges many only accept complaints about persons occupying judicial positions that the Act identifies. By contrast, complaints filed against a district judge who subsequently was appointed to the court of appeals could proceed.
True, in the Kozinski matter, the judicial council stressed that the Act “is concerned with individuals who currently exercise the powers of the office of federal judge. Its emphasis is on correction of conditions that interfere with the effective and expeditious administration of the business of the courts” (emphasis in original). In this unprecedented situation, one might argue that because Kavanaugh is still “exercis[ing] the powers of the office of federal judge,” the complaints can proceed. Regardless, he no longer is a judge whom the Act defines as subject to investigation under the Act. The only available disciplinary remedy is impeachment by the House and conviction and removal by the Senate. House Democrats, especially if they take the majority, may try impeachment, but they will likely fail and even if successful, it is highly unlikely that two-thirds of the Senate would convict him.
[i] Congress has divided the country into twelve regional circuits. In each is a court of appeals, one or more district courts and associated bankruptcy courts, and a circuit judicial council. Councils comprise an equal number of district judges and court of appeals judges (“circuit judges”) and the chief judge of the court of appeals as chair. The councils are generally responsible for, in the words of the statute, “the effective and expeditious administration of justice within its circuit,” although as a practical matter, councils generally tread lightly in overseeing the courts in their circuits.