Will Federal Judges Cover Kavanaugh's Butt - or Whup It?
By William Boardman, Reader Supported News
15 October 18
This whole two-week effort has been a calculated and orchestrated political
hit, fueled with apparent pent-up anger about President Trump and the 2016
election, fear that has been unfairly stoked about my judicial record,
revenge on behalf of the Clintons and millions of dollars in money from
outside left-wing opposition groups.
- Judge Brett Kavanaugh's Senate testimony, September 27, 2018
The integrity of the US judicial system is actively, albeit quietly, in
play. A sitting federal judge, or more likely a panel of sitting federal
judges, will be required in the near future to render an assessment of the
honesty, integrity, and fitness of a Supreme Court justice to retain his
lifetime appointment. The process and the result of the federal judges'
decision will, together, render a judgment as to the integrity of not just
one Supreme Court justice but the federal courts as a national institution.
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 a morality play that began at a time uncertain, reaching back
decades. The curtain opened as the president named Brett Kavanaugh to fill a
seat on the Supreme Court despite - or because of - his long history of
playing Republican hardball against the Clintons over Whitewater, against
the Clintons over Monica Lewinsky, for George Bush over the Florida vote
count in the 2000 election, for fake intelligence in the lead-up to the Iraq
War, and for the White House in its efforts to spy on or torture anyone they
chose. On occasion even as a federal judge, Kavanaugh has proved the perfect
partisan.
Kavanaugh's history was a concern when he was first nominated for the
federal bench in 2004, but he managed then to get confirmed with only
limited doubt about his ability to tell the truth under oath. This year,
when his Senate confirmation hearings began on September 4, the concerns
about his integrity were still there, but Kavanaugh was protected from his
own record because the White House kept most of it secret. Kavanaugh's
refusal to give full and complete answers to questions about his career as a
political operative prompted the first formal ethics complaints (even before
the Dr. Christime Blasey Ford story broke). One of those complaints, filed
by attorney J. Whitfield Larrabee on behalf of two clients - all "under
penalty of perjury" - summed up the case against Kavanaugh this way:
Kavanaugh received stolen information taken from Democratic members of the
Senate Judiciary Committee while he worked in the White House and he
perjured himself while testifying about the matter in Congress in 2004, 2006
and 2018. Kavanaugh violated Canons 1 and 2 of Code of Judicial Conduct by
committing crimes of dishonesty while he was a federal judge, by obtaining
confirmation of his appointment as a federal judge by false and perjurious
testimony, by concealing and covering up his criminal actions and by
obstructing justice. He is unfit to serve as a judge by reason of his
corrupt, unscrupulous, dishonest and criminal conduct.
This indictment is followed by five pages of factual allegations citing
chapter and verse of some of Kavanaugh's perjurious representations. The
complaint concluded with a call for an investigation leading to a
recommendation to Congress:
. that Kavanaugh be impeached in accordance with Rules 20 and 23 of the
Rules for Judicial-conduct and Judicial-Disability Proceedings.
This is only one of a reported 15 or more formal ethics complaints made
about Kavanaugh before the Dr. Blasey Ford farce or his confirmation to the
Supreme Court. All the complaints made their way to the chief judge of the
Court of Appeals, DC Circuit, on which Kavanaugh then sat. That chief judge
is Merrick Garland, whose own appointment to the Supreme Court in 2016 was
stonewalled by Mitch McConnell and Senate Republicans (illegitimately making
the seat available to usurper Neil Gorsuch). Garland, faced with the
complaints against Kavanaugh, did the non-partisan thing and recused
himself, leaving the first assessment of the complaints to someone else.
According to an October 6 press release from DC Circuit judge Karen LeCraft
Henderson (a Bush appointee and Kavanaugh's colleague on the bench):
After the start of Judge Brett Kavanaugh's confirmation hearings, members of
the general public began filing complaints in the D.C. Circuit about
statements made during those hearings. The complaints do not pertain to any
conduct in which Judge Kavanaugh engaged as a judge. The complaints seek
investigations only of the public statements he has made as a nominee to the
Supreme Court of the United States.
This characterization is misleading if not just false. The complaints may
only refer to false public statements (most of the complaints have not been
made public), but those false public statements were in fact made by a
sitting judge (just not while he was in court, apparently). Judge Henderson
is implicitly arguing for a judicial standard that allows judges to lie
whenever they want when they're off the bench. This is not the standard of
judicial temperament most of us thought we signed up for.
According to a letter from Chief Justice Roberts on October 10, he first
heard officially about the Kavanaugh complaints starting on September 20. By
October 6 he had received 15 complaints that were deemed worthy of review
(it's uncertain how many, if any, were dismissed as frivolous). In conveying
the complaints to the chief justice, Judge Henderson, concerned "that local
disposition may weaken public confidence in the process," requested that the
complaints be transferred to another circuit (as provided by Rule 26). In
his October 10 letter, the chief justice did exactly that:
I have selected the Judicial Council of the United States Court of Appeals
for the Tenth Circuit to accept the transfer and to exercise the powers of a
judicial council with respect to the identified complaints and any pending
or new complaints relating to the same subject matter.
The chief judge of the 10th circuit, based in Denver, is Timothy M.
Tymkovich (a Bush appointee). He was also on the White House short list with
Kavanaugh. And now he is, at least for the moment, in charge of 15 or more
Kavanaugh complaints. As of October 15, he had not yet announced how the
complaints would be handled. Nor has he publicly addressed his own political
bias or his clear conflict of interest in the matter. Early reporting on the
Kavanaugh complaints has been somewhat sketchy and sometimes dismissive.
On October 4, the House Progressive Caucus sent a letter to the president in
a last-ditch effort to have the Kavanagh nomination withdrawn. The letter,
signed by 39 members of Congress, outlined Kavanaugh's partisan political
past and his efforts to minimize or hide it. The letter demanded a full
investigation of Kavanaugh's record and promised impeachment proceedings if
the Senate's accusations of lying under oath were borne out. The letter
concluded: "The credibility and reputation of the country's highest judicial
body is at stake."
Even if the Kavanaugh complaints continue to get scant media coverage, the
issue seems unlikely to go away. The Supreme Court is on trial and the chief
justice knows it. He also knows that Rules for Judicial Conduct say
unambiguously: "As long as the subject of the complaint performs judicial
duties, a complaint alleging judicial misconduct must be addressed."
[emphasis added] The chief justice also knows that Kavanaugh's partisan
outburst (quoted at the top) seems to clearly violate the judicial conduct
rule against "making inappropriately partisan statements." The Supreme
Court, led by a man with a reputation for defending institutional integrity,
is faced with finding a way to justify its own probity - or join the rest of
the wreckage of the Trump era.
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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
to republish is freely granted with credit and a link back to Reader
Supported News.
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