Brett Kavanaugh Brett Kavanaugh walks along the hallways of the Russell Senate Office Building on July 11, 2018. Photo: Diego M. Radzinschi/NLJ

A key judicial conduct committee of the policymaking arm of the federal judiciary Thursday rejected misconduct complaints against now-U.S. Supreme Court Justice Brett Kavanaugh tied to his testimony last year at his U.S. Supreme Court confirmation hearings.

The nine petitions before the Judicial Conference’s Committee on Judicial Conduct and Disability were essentially appeals of rulings by the 10th Circuit Judicial Council. The appeals court body had reviewed 83 ethical complaints against Kavanaugh, who was then a judge on the U.S. Court of Appeals for the D.C. Circuit.

That council ruled that it lacked jurisdiction to consider the merits of the complaints because Kavanaugh had been elevated to the Supreme Court. Kavanaugh was confirmed in October 2018 in the narrowest Supreme Court confirmation votes in modern history.

“We agree with the reasoning of the Tenth Circuit Judicial Council and conclude the [Judicial Conduct & Disability] Act does not authorize review of the merits of the complaints against Justice Kavanaugh,” the Judicial Conduct and Disability Committee concluded in its order Thursday.

The rules governing the conduct of federal judges “unequivocally preclude review” of the merits of complaints against a judge “who has resigned his or her judicial office and thereafter been confirmed as a justice of the Supreme Court,” the committee said.

“Because the Act does not apply to a judge who has resigned from a covered judicial office and thereafter been confirmed as a Supreme Court Justice, we will deny the petitions for review,” the panel said.

Judge Anthony Scirica of the U.S. Court of Appeals for the Third Circuit chairs the committee. The other committee members who approved the unsigned order dismissing the complaints were: Senior U.S. District Judge Sarah Evans Barker of the Southern District of Indiana; Judge Joel Dubina of the U.S. Court of Appeals for the Eleventh Circuit; Judge Joel Flaum of the U.S. Court of Appeals for the Seventh Circuit; Senior U.S. District Judge Thomas Hogan of of the District of Columbia; U.S. District Judge James Gritzner of the Southern District of Iowa; and Judge Jon Newman of the U.S. Court of Appeals for the Second Circuit.

The petitioners had argued that because Kavanaugh was still a judge on the D.C. Circuit at the time the complaints were filed, the federal courts had jurisdiction under the judicial conduct act to consider the merits of their complaints.

The committee also rejected procedural errors that the petitioners claimed were made by the 10th Judicial Council in its review of the Kavanaugh complaints. The committee stated: “Though the rules recommend a different procedure than the Tenth Circuit Judicial Council followed, we conclude, based on our independent review and affirmance of the Judicial Council’s determination, that any procedural error has caused no prejudice.”

Many of the complaints against Kavanaugh focused on his partisan rant before the Senate Judiciary Committee during his Sept. 27 confirmation hearing. The complaints alleged he displayed improper judicial temperament.

A California professor named Christine Blasey Ford had testified that Kavanaugh, then a high school student in suburban Maryland, sexually assaulted her. Kavanaugh denounced the claim, leveling a partisan diatribe against Senate Judiciary Democrats and accusing them of a “search and destroy” mission.

Kavanaugh subsequently retreated from some of his remarks, saying “I said a few things I should not have said.” Kavanaugh in October vowed he would be an independent justice, arriving at the high court with “no bitterness” about his confirmation proceeding.

 

The Judicial Conduct and Disability Committee’s decision is below:

 

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