Court Uses Law's Absurdity to Allow Unfit Kavanaugh to Remain as Justice
By William Boardman, Reader Supported News
10 January 19
The allegations contained in the complaints [against Judge Kavanaugh] are
serious, but the Judicial Council is obligated to adhere to the Act. 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.. Because it lacks jurisdiction to do so, the
Council makes no findings on the merits of the complaints.
- Order of the Judicial Council of the US Tenth Circuit, December 18, 2018
That is the sound that eight federal judges make when they know full well
they're doing something rotten but can't bring themselves to defend the
integrity of their own judicial system.
This order deals with complaints against federal judge Brett Kavanaugh,
whose reputation for perjurious testimony is documented at least as far back
as 2004. Last summer, the US Senate gave only cursory attention to whether
Kavanaugh had repeatedly lied under oath on a variety of occasions,
including the Senate judiciary committee hearings of 2018. Kavanaugh was a
federal district judge from May 30, 2006, until October 6, 2018, when he was
sworn in as a Supreme Court justice. At that time, the majority of 83
ethical conduct complaints addressing his behavior as a district judge had
already been filed. In an unusual procedure, the Tenth Circuit Judicial
Council has made these 83 complaints public on its website, while concealing
the identities of the complainants.
The first batch of Kavanaugh complaints went to the DC Circuit, which passed
them to Supreme Court Chief Justice John Roberts, who passed them on to the
Tenth Circuit on October 10. At that time I wrote in Reader Supported News
that the credibility of the US judicial system was the core issue in the
Kavanaugh case:
The stakes are as high as they are simple: Will our court system choose to
defend the position one of its own members or will it choose to defend the
integrity of the US judicial system? There is no possibility it can do both
with any credibility.
This is still true, as the Kavanaugh complaints appear headed back to the
Chief Justice's lap for further action, or inaction.
It took the eight judges of the Tenth Circuit Judicial Council just over two
months to decide to do nothing about any of the 83 misconduct complaints
against Judge Kavanaugh. Worse, the court's order asserted in a strained
legal argument that there was nothing that could be done legally about the
83 misconduct complaints against Judge Kavanaugh for one reason, and one
reason only - because he had become Justice Kavanaugh. That's the whole
argument: that Kavanaugh gets to escape judicial accountability, and his
getaway car is his seat on the Supreme Court. This is cultural madness and
legal absurdity. What were those Tenth Circuit judges thinking?
What they actually do is create a legal fiction, starting with a false
assertion in the first sentence: "Complaints of judicial misconduct have
been filed against Supreme Court Justice Brett M. Kavanaugh.." In fact, most
of the complaints were filed against Kavanaugh when he was a district judge.
All the complaints cite judicial misconduct by Kavanaugh as a district
judge. The false statement of reality is necessary to support the wonderland
the judges need to escape dealing with what the court saw as the substance
of the charges:
. that Justice [sic] Kavanaugh made false statements during his nomination
proceedings to the D.C. Circuit in 2004 and 2006 and to the Supreme Court in
2018; made inappropriate partisan statements that demonstrate bias and a
lack of judicial temperament; and treated members of the Senate Judiciary
Committee with disrespect.
Much of this is beyond reasonable dispute. Both professional and lay
witnesses abound. More than 2,400 law professors are on record opposing
Kavanaugh as unfit to serve on the Supreme Court. Even Kavanaugh has
acknowledged and quasi-apologized for some of the behavior in the 83
complaints. The Tenth Circuit judges acknowledge that the complaints are
"serious" but then choose to make "no findings on the merits of the
complaints." How is this not deliberate judicial malpractice?
The answer to that is a legal quibble. According to the Tenth Circuit
judges, the applicable statute for federal district judges is not applicable
to Supreme Court justices. This is certainly true in the sense that if the
complaints made against Kavanaugh referred to his behavior as a justice, the
statute would not apply. The statute is the Judicial Conduct and Disability
Act, 28 USC 351 et seq., which applies specifically to federal circuit
judges, district judges, bankruptcy judges, and magistrate judges. It is one
of the abiding scandals of American government that the Supreme Court is
subject to no rules of ethics of its own and that Congress has done little
to remedy the ridiculous result: that those with the most authority are held
the least accountable. Or as the Tenth Circuit judges put it:
. the complaints must be dismissed because, due to his elevation to the
Supreme Court, Justice Kavanaugh is no longer a judge covered by the Act.
See 28 USC 352(b)(1)(A)(i). [emphasis added]
The court thereby creates a reality in which:
(1) Over a period of 13 years as a judge, Kavanaugh committed objectionable
acts;
(2) Complaints were lawfully filed in response to his objectionable acts;
(3) Some complaints were based on objectionable acts Kavanaugh committed
before he was a circuit judge and subject to the Act, but these complaints
were not dismissed;
(4) Despite unambiguous jurisdiction at the time of the acts and unambiguous
jurisdiction at the time of the filing of the complaints, the Tenth Circuit
claims it's helpless to act.
The Tenth Circuit does not explain, or even address, this absurdity. The
court's order argues that "The Act thus applies only to complaints that
allege that one of those covered judges [which Kavanaugh was] 'has engaged
in conduct prejudicial to the effective and expeditious administration of
the courts' " [which Kavanaugh patently did as a circuit judge]. The court
holds that whatever Kavanaugh did as a judge that was complained about while
he was still a judge can all be ignored because of an "intervening event,"
such as a judge's death. Kavanaugh did not die, although he kind of went to
heaven. The court cites Rule 11(e) to justify its abdication of anything
like the rule of law. Rule 11(e) in its entirety says:
Intervening Events. The chief judge may conclude the complaint proceeding in
whole or in part upon determining that intervening events render some or all
of the allegations moot or make remedial action impossible.
Kavanaugh's elevation to the high court did not make any of the complaints
moot. If anything, his elevation made them more pertinent than ever.
Kavanaugh's elevation to the high court hardly made remedial action
impossible, although it probably makes remedial action more difficult. The
court's order cites four precedents for its action, three of which are
irrelevant (involving judges who were transferred, retired, or whose
objectionable behavior was before becoming a judge). The one relevant
citation involves several judges for whom the dismissed complaint is ruled
"frivolous" as well as Supreme Court Justice Clarence Thomas, who is
dismissed "for want of jurisdiction" as a sitting justice. The relevance
here is about as slim as it gets, comparing one "frivolous" complaint to
Justice Kavanaugh's 83 complaints acknowledged by the court to be "serious."
As described by the court's order, the judicial council held no hearings,
examined no evidence for its probative value, or otherwise investigated any
of the 83 complaints against Kavanaugh. The court dismissed those complaints
solely on the tenuous jurisdictional basis that they were out of the court's
reach. The court chose not to discuss any other possibly more judicious
responses to the prickly Kavanaugh case, leaving the country still saddled
with a justice palpably unfit for his office.
The court defended its conclusion by noting that Congress, in other
instances, had indeed included justices under its statutes and offered as an
example 28 US Code 455 - "Disqualification of justice, judge, or magistrate
judge." This statute is likely to become increasingly important as long as
Kavanaugh remains on the bench, since it mandates that a justice "shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned." Kavanaugh's televised performance of personal
bias against Democrats and his stated conspiracy beliefs should be enough to
disqualify him from a wide range of political cases. With 83 serious conduct
complaints to be examined, it might take less time to assess what cases
there are where Kavanaugh could reasonably avoid disqualification.
Nor is the impeachment of Justice Kavanaugh off the table. That's a distant
outcome under present circumstances, but as the court's order notes in its
penultimate paragraph:
The importance of ensuring that governing bodies with clear jurisdictions
are aware of the complaints should also be acknowledged. See Nat'l Comm'n on
Judicial Discipline and Removal, "Report of the Nat'l Comm'n on Judicial
Discipline & Removal," 152 F.R.D. 265, 342-43 (1994). Accordingly we request
that the Committee on Judicial Conduct and Disability of the Judicial
Conference of the United States forward a copy of this Order to any relevant
Congressional committees for their information. [emphasis added]
For now, the Republican judicial atrocity represented by Justice Kavanaugh
sits undisturbed. The Tenth Circuit's order is subject to appeal until
January 29, 2019. As of January 9, a Tenth Circuit court spokesperson
declined to say if any appeal had yet been filed, citing appellant
confidentiality. One of the self-identified complainants, retired attorney
Larry Behrendt, filed his five-page complaint October 2, concluding:
Judge Kavanaugh made repeated, inappropriate partisan statements to the
Senate Judiciary Committee during his testimony on September 28, and is thus
guilty of misconduct under the Act [28 USC 351ff] and the Rules. This
misconduct is particularly egregious, as it took place in front of millions
of people, at a time when scrutiny of the law and the judiciary is at its
highest, and where Kavanaugh had a clear duty to display judicial
temperament and deportment.
After the Tenth Circuit Judicial Council skirted any serious consideration
of Behrendt's complaint or the 82 others, the attorney published an op-ed
explaining why he thought the court was wrong. He noted that the law is
silent on how to handle a nexus of offenses under transitional circumstances
like Kavanaugh's. That hardly makes it likely that the intent of Congress
was to give a lying partisan a free pass to the Supreme Court. Behrendt says
he hasn't decided whether to appeal the Tenth Circuit order. Maybe the Tenth
Circuit will find some backbone. Maybe the chief justice will care more
about his court's integrity than the slippery hack who is its newest member.
Until someone finds the courage to confront the truth of this legal fiasco
the rest of us are stuck with a lifetime travesty of justice.
Email This Page
William M. Boardman has over 40 years experience in theatre, radio, TV,
print journalism, and non-fiction, including 20 years in the Vermont
judiciary. He has received honors from Writers Guild of America, Corporation
for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination
from the Academy of Television Arts and Sciences.
Reader Supported News is the Publication of Origin for this work. Permission
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+26 # BetaTheta 2019-01-10 14:24
The upshot: Kavanaugh is now "Too Big To Fail."
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Court Uses Law's Absurdity to Allow Unfit Kavanaugh to Remain as Justice
William Boardman, Reader Supported News
10 January 2019
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