The Tenth Circuit Judicial Council on Friday denied 20 appeals of its earlier dismissal of misconduct complaints against now-Justice Brett Kavanaugh stemming from his nomination and confirmation to the U.S. Supreme Court.
The judicial council voted 6-1 to reaffirm its decision that an “intervening event”—Kavanaugh’s elevation to the Supreme Court—deprived it of jurisdiction to review 83 ethics complaints filed before and after Kavanaugh’s confirmation in October. Supreme Court justices are not governed by the conduct rules that govern federal trial and appeals judges.
“As explained extensively in the underlying order, a Supreme Court justice is not a covered judge,” the majority, including Chief Judge Timothy Tymkovich, said in its order Friday. “The lack of jurisdiction over Justice Kavanaugh precludes an investigative and fact-finding process, even over conduct allegedly committed while Justice Kavanaugh was a covered judge.”
Judge Mary Beck Briscoe dissented, saying it was improper of the council to sit in review of its own decision.
“I am left to conclude that the entire council should be disqualified from participating in consideration of the current petitions for review,” Briscoe wrote. “And, in turn, I conclude that the petitions for review should be considered by a different body, specifically the Judicial Conference Committee on Judicial Conduct and Disability.”
Briscoe added in a footnote: “In light of my dissent, petitioners can presumably petition the Judicial Conference Committee on Judicial Conduct and Disability for review of the Council’s order.”
Judge Carlos Lucero recused, writing that he was disqualified from reviewing the “petitions for review” for the reasons stated in Briscoe’s dissent. “I would reassign the petitions to the Chief Justice of the United States for further referral to the Judicial Council of another Circuit pursuant to Rule 26 for independent consideration of the appeals or for other disposition as he may determine,” he wrote.
Reacting to the council’s denial of the appeals, New York attorney Jeremy Bates, who filed one of the appeals, said, “I intend to petition the Judicial Conference for review of this order.”
The appeals, known formally as petitions for review, generally raised four issues, including: the council did not have authority to consider the complaints in the first instance; the council should disqualify itself from considering the appeals; the council had the authority in the first instance to rule on the merits, because Kavanaugh at the time was a circuit judge, not a Supreme Court justice; the allegations against Kavanaugh “are not moot and remedial action remains possible.”
The council cited the federal rules and the practice of appellate courts in reviewing their own decisions as support for the procedures used to review the original complaints and for its subsequent denial of the appeals. “The idea that judges review their own decisions is not novel,” the majority wrote.
Besides Tymkovich, Briscoe and Lucero, other members of the council included: Circuit Judge Paul Kelly Jr. and district judges Philip Brimmer of Colorado, Clark Waddoups of Utah, Scott Skavdahl of Wyoming and John Dowdell of Oklahoma.
The Tenth Circuit’s order is posted here: