Judicial Complaints Treated Unequally

According to Supreme Court Chief Justice John Roberts Jr., complaints against judges are routinely sent for review to a court having no direct ties to the accused judge.  Thus, complaints against District of Columbia Circuit Judge Brett Kavanaugh prior to his confirmation were sent to the Tenth Circuit for review, and complaints against Ninth Circuit Judge Alex Kozinski were sent to the Second Circuit for review.  In contrast, Bernofsky's complaints against Judge Helen 'Ginger' Berrigan, a Tulane University adjunct professor, were never transferred for review out of the Fifth Circuit which itself had strong ties to Tulane University, resulting in a serious conflict of interest that the appellate court was obliged but failed to remedy.

Ethics Allegations Against Brett Kavanaugh Face Hurdles
Judicial ethics scholars disagree over procedurally how the complaints against the now-Supreme Court justice will be resolved.
Marcia Coyle
October 11, 2018

The judicial ethics complaints filed against Justice Brett Kavanaugh over his bruising U.S. Senate confirmation hearings in Washington face significant questions and potential roadblocks on the path to any definitive resolution.

Chief Justice John Roberts Jr. on Wednesday sent more than a dozen complaints to the judicial council of the U.S. Court of Appeals for the Tenth Circuit to review, part of a routine process in which a court with no direct ties to the accused judge is asked to review ethics claims.

At least some of the complaints against Kavanaugh, formerly a D.C. Circuit judge, involve public statements he made as a nominee to the Supreme Court. But the Supreme Court and D.C. Circuit have not indicated what exactly is in focus.

Kavanaugh vehemently denied allegations that, as a high school student in the 1980s, he sexually assaulted a teenage girl. And he was criticized for his partisan rebuke in which he lashed out at Democrats for what he described as an “orchestrated and calculated political hit.” He was confirmed to the high court 50-48.

Judicial ethics scholars who spoke with The National Law Journal on Thursday generally agreed the complaints against Kavanaugh likely will not lead to any reprimand. Still, there was disagreement over procedurally how the complaints will be resolved. There is no formal code of ethics that governs Supreme Court justices, though the court says it follows the rules that are in place for lower judges.

"This is obviously an unprecedented situation,” said Stephen Gillers of New York University School of Law. Part of the debate, Gillers said, is whether the ethics complaints are now moot since Kavanaugh is a justice and no longer a federal appeals judge. "And that is debatable because it is unprecedented," he said.

Gillers said he believes the complaints are not moot. "The allegations, which may not be meritorious, cite conduct that Kavanaugh engaged in while he was still on the D.C. Circuit and subject to the disciplinary provisions of the Code of Judicial Conduct for U.S. judges," he said. "I don't think he escapes that jurisdiction because he goes to a higher court. He is still a judicial officer of the United States."

Arthur Hellman of the University of Pittsburgh School of Law takes the opposite position.

"What could the judicial council do if it were to investigate the merits of these complaints?" Hellman said. "The answer is there is nothing to do because jurisdiction is limited to lower court judges."

Congress, Hellman said, made a decision not to include the Supreme Court in the judicial misconduct statute. The justices might look to the Code of Judicial Conduct for guidance, but it does not govern them.

"It makes no sense to conduct an investigation if you know you can do nothing," Hellman said. "It would be terrible from an appearance standpoint for a council to say, 'Yes, there is misconduct but we can't do anything about it.' The council lost its jurisdiction when he took the oath as a Supreme Court justice. The recourse is impeachment."

Charles Geyh of the Indiana University Maurer School of Law in Bloomington, said he believes, with near certainty, that the judicial council has no jurisdiction over Kavanaugh, the justice.

"It just has never been applied in a situation like this," he said. "If there is jurisdiction, the sanctions that would ordinarily apply to a judge—reprimand and recommendation to the House for impeachment—would still be live concerns. It does highlight how preposterous it is that the Supreme Court is immunized from codes of conduct."

Beth Wilkinson, a lawyer for Kavanaugh during his confirmation proceedings, was not immediately reached for comment.

Separate conduct as judge, and nominee

Hellman, Geyh and Gillers do agree on one thing: the type of complaints that the judicial council could consider when it does have jurisdiction.

The only information from the judiciary about the Kavanaugh complaints comes from the letter to Roberts from Judge Karen LeCraft Henderson of the D.C. Circuit. Henderson said: "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."

Kavanaugh's hyper-partisan statements during his Sept. 27 confirmation hearing are unlikely to have any traction with the judicial council, the scholars said. Kavanaugh, days later, attempted to walk back some of his language, but he did not say what exactly he should not have said.

The judicial code of conduct applies to both conduct on and off the bench. But, Hellman said, the "further you get from exercise of the judicial role, the more cautious councils are and should be in finding misconduct."

Hellman added: "Yes, judges have strong feelings and express them, but they separate those feelings from what they do on the bench. Kavanaugh exploded in a way he probably shouldn't have but when he goes on bench, he can put that aside."

At the White House this week, Kavanaugh vowed he would be a fair and impartial judge.

Gillers said Kavanaugh was testifying at a confirmation hearing, "what is understandably a political process and which had become acutely partisan. The nominee, who happened to be a judge, wasn't acting as a judge in his testimony."

Any ethics complaint alleging perjury would fall under the judicial council's jurisdiction. Several Yale University friends have accused Kavanaugh of lying about the scope of his drinking habits. Kavanaugh, at his confirmation hearing, denied excessive consumption of alcohol and said he had never consumed so much as to not remember the events of a previous night. Senate Democrats also questioned his credibility in responses to questions about the scope of his work in the George H. Bush White House.

A call for transparency

So what are some of the options the judicial council of the Tenth Circuit might have with the Kavanaugh complaints?

The council could say the complaint proceeding is "concluded" and not reach any decision on the merits of the allegations.

That's how ethics complaints were resolved against Alex Kozinski, the now-retired Ninth Circuit judge who was accused of sexual harassment. The ethics claims had been transferred to the Second Circuit, which closed the case in February. Kozinski's retirement, a panel said, deprived it of authority "do anything more."

The council could dismiss the complaints after review, a decision that could indicate the allegations were not proved.

Gillers said there are two "off-ramps" for the Tenth Circuit council:

"It can conclude the proceeding if 'the chief judge finds that appropriate corrective action has been taken or that action on the complaint is no longer necessary because of intervening events.' The chief judge here may conclude that elevation to the Supreme Court is such an intervening event," Gillers said.

Similarly, the Tenth Circuit could dismiss the Kavanaugh claims if the complaint makes allegations, for example, perjury claims, that are "incapable of being established through investigation."

Gillers said he hopes the Tenth Circuit council is "completely transparent" about however it resolves the ethics allegations against Kavanaugh. "If it simply dismisses without saying more, I think all of the skepticism and suspicion that has attended this entire process will continue," he said.

Copyright 2018, ALM Media Properties, LLC

From: Marcia Coyle, "Ethics Allegations Against Brett Kavanaugh Face Hurdles," The National Law Journal, October 11, 2018, https://www.law.com/nationallawjournal/2018/10/11/ethics-allegations-against-brett-kavanaugh-face-hurdles/, accessed 10/19/2018.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.