Judge Karen LeCraft Henderson, of the U.S. Court of Appeals for the District of Columbia Circuit. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

Updated 3 p.m.

Channels for challenging U.S. Supreme Court nominee Brett Kavanaugh’s judicial ethics are closing as his confirmation draws near.

On Saturday, Judge Karen LeCraft Henderson of the U.S. Court of Appeals for the D.C. Circuit issued a statement that seemed to foreclose any action by the D.C. Circuit on misconduct complaints that have been filed with the court concerning Kavanaugh’s statements during his confirmation hearings.

Henderson did not state how many complaints have been filed, but indicated they were outside the scope of any sanctions the circuit court could impose. “The complaints do not pertain to any conduct in which Judge Kavanaugh engaged as a judge,” Henderson stated. “The complaints seek investigations only of the public statements he has made as a nominee to the Supreme Court of the United States.”

The Washington Post reported Saturday that Henderson forwarded more than a dozen complaints filed with the D.C. Circuit to the Supreme Court, which could lead to referring them to another circuit court.



Statements about judicial misconduct usually are made by the chief judge, but the D.C. Circuit’s chief judge, Merrick Garland, apparently recused himself, leaving it to Henderson, the most senior judge in the circuit. A Democratic activist reportedly filed ethics complaints against Kavanaugh at the D.C. Circuit.

Filing complaints directly with the Supreme Court itself is an unlikely avenue, especially since Kavanaugh’s statements were made before joining the high court. The judicial code of conduct that lower federal court judges must adhere to does not apply to Supreme Court justices.

“That reflects a fundamental difference between the Supreme Court and the other federal courts,” Chief Justice John Roberts Jr. stated in his 2011 annual report, his most recent exposition on Supreme Court ethics. Roberts explained that the Supreme Court was created by the Constitution, but it empowered Congress to create the lower federal courts, so Congress can manage the lower courts but not the Supreme Court.

But Roberts went on to say that the justices “do in fact consult the Code of Conduct in assessing their ethical obligations,” as well as other sources for guidance on ethical issues. “For that reason, the court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance. But as a practical matter, the code remains the starting point and a key source of guidance for the Justices as well as their lower court colleagues.”

Roberts did not spell out any formal procedure for handling complaints about the conduct of justices.

A bipartisan bill that passed out of the House Judiciary Committee in September would compel the Supreme Court to develop its own ethics code, among other changes.

Gabe Roth, executive director of Fix the Court, which has advocated for a Supreme Court ethics code, said Saturday he hopes the bill becomes law, “and the ongoing confusion over judges and justices’ ethical obligations becomes a relic.”

 

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