A judicial council Tuesday dismissed 83 ethics complaints against U.S. Supreme Court justice Brett Kavanaugh, asserting that because Kavanaugh is now on the high court the council has no jurisdiction to pass judgment on his behavior.
Chief Justice John Roberts Jr. appointed the council—comprised of judges from the U.S. Court of Appeals for the Tenth Circuit—to examine the complaints, which were released in redacted form Tuesday. In general, the complaints asserted that Kavanaugh made false and improper statements during his confirmation hearings, including his politically charged assertion that a Democratic conspiracy was behind efforts to thwart his nomination.
The council’s claim that it lacks jurisdiction stems from a provision of the Judicial Conduct and Disability Act, which confines the power to discipline federal judges to circuit court and lower court judges, not the Supreme Court. That dichotomy, in turn, results from the fact that the U.S. Constitution created the Supreme Court, while the lower courts are established by Congress. Court reformers have called for legislation that would impose ethics rules on the Supreme Court as well.
At Kavanaugh’s confirmation hearing, where he was accused of sexually assaulting a high school classmate years ago in Maryland, Kavanaugh railed against what he described as a liberal conspiracy to keep him from the Supreme Court. Kavanaugh denied the claims from his accuser, Christine Blasey Ford, who said Kavanaugh pinned her to a bed, covered her mouth and tried to remove her clothing.
“The allegations contained in the complaints are serious, but the Judicial Council is obligated to adhere to the act,” Chief Judge Tim Tymkovich of the U.S. Court of Appeals for the Tenth Circuit wrote in Tuesday’s order. “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.”
Judicial ethics rules require among other things that judges “maintain and enforce high standards of conduct and should personally observe those standards” and that judges “should refrain from political activity.”
Kavanaugh subsequently walked back his partisan tirade, writing in a Wall Street Journal op-ed that he “said a few things I should not have said.”
Tymkovich issued a separate order in which he rejected a call for him to recuse from overseeing the complaints against Kavanaugh. Kavanaugh, as a former White House lawyer in the George W. Bush administration, had advocated for for Tymkovich’s confirmation, according to the request for recusal.
Documents that were released as part of Kavanaugh’s confirmation showed he sent an email proposing the Bush administration issue a press release about various judicial nominees, including Tymkovich. “I am otherwise unaware that Justice Kavanaugh had any participation in my nomination or confirmation,” Tymkovich wrote.
Judicial ethics scholars had observed that the ethics claims against Kavanaugh faced jurisdictional hurdles.
“What could the judicial council do if it were to investigate the merits of these complaints?” Arthur Hellman of the University of Pittsburgh School of Law told the NLJ in October. “The answer is there is nothing to do because jurisdiction is limited to lower court judges.”
The order dismissing the complaint is posted here: