In the two weeks since Chief Justice John Roberts referred a series of misconduct complaints against Justice Brett Kavanaugh to a Denver-based appeals court, many experts on judicial discipline have predicted the complaints will never be resolved.
The 15 specific claims, arising from Kavanaugh’s Senate testimony last month, including after he was accused of sexual assault, were funneled into a system of self-policing that has been under scrutiny for nearly a year. Members of Congress, women’s rights advocates and other critics have questioned whether the system, which fields hundreds of claims annually and is largely hidden from public view, holds judges accountable.
The complaints against Justice Kavanaugh are unlikely to go anywhere for their own distinct reasons.
Supreme Court justices have long been exempted from the US judiciary’s disciplinary rules, so it is doubtful the Denver-based 10th Circuit judicial council under Chief Judge Timothy Tymkovich would ultimately find jurisdiction to investigate Kavanaugh.
There may be another reason to reject any complaints related to Kavanaugh’s statements denying Christine Blasey Ford’s claim that he sexually assaulted her when they were both teenagers. In an unrelated case last year, the 10th Circuit council suggested judges should not review allegations arising from testimony during the Senate confirmation process, based on the constitutional separation of powers.
In his correspondence directed to Tymkovich, Roberts did not say why he was referring the matter to that circuit beyond including letters from the US Court of Appeals for the District of Columbia Circuit, where Kavanaugh served for 12 years, noting that “local disposition may weaken public confidence in the process.”
Tymkovich, who since September 2016 has been on President Donald Trump’s list of potential candidates for the Supreme Court, was appointed to a life-tenured appeals court seat by President George W. Bush in 2003, when Kavanaugh was in the White House counsel’s office and screening judicial candidates.
In Kavanaugh emails made public during his recent confirmation process, it is clear Kavanaugh followed Tymkovich’s prospects from his May 2001 nomination until his April 2003 Senate approval.
A spokesman for Tymkovich said that the judge would have no comment on the Kavanaugh referral or any potential conflict of interest. The Guardian newspaper first reported on Kavanaugh’s involvement in Tymkovich’s appointment on Monday.
How much Kavanaugh may have influenced the selection and confirmation of Tymkovich, a former Colorado state solicitor general, is not clear from the Kavanaugh correspondence released.
A separate review of Kavanaugh’s Senate testimony has already dissolved. The American Bar Association had said it was reevaluating the “well qualified” rating it had previously given Kavanaugh because of the sexual assault allegations and his response during September 27 testimony. But the group dropped that review after Kavanaugh’s October 6 Senate confirmation.
To many lawyers, professors and others who watched Ford and Kavanaugh before the Senate Judiciary Committee, the judge’s reaction was nearly as startling as Ford’s claims. In his televised testimony, Kavanaugh declared that Ford’s sexual assault allegations arose from “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election … revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”
The former Bush aide who previously served with independent counsel Ken Starr’s investigation of President Bill Clinton also asserted, “As we all know, in the United States political system of the early 2000s, what goes around comes around.”
After a flood of criticism, much of which questioned whether he had the temperament to be a judge, Kavanaugh wrote an October 4 essay for the Wall Street Journal, acknowledging, “I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said.”
The Kavanaugh complaints have not been publicly detailed beyond the characterization that they are related to statements he has made, not conduct on while on the bench.