Hold the Cheers on Kavanaugh's Appointment


The process of elevating Brett Kavanaugh to the Supreme Court drew unprecedented public opposition.

UPDATE: Justice Roberts Refers Kavanaugh Case to Colorado Federal Appeals Court
Supreme Court Chief Justice John G. Roberts Jr. has referred more than a dozen judicial misconduct complaints against the newest justice, Brett M. Kavanaugh, to the U.S. Court of Appeals for the 10th Circuit, in Denver for judicial review, the Washington Post reported Oct. 10. Chief Judge Timothy M. Tymkovich, former solicitor-general of Colorado, recently handled a separate judicial misconduct case from Washington involving the former chief judge of the district court. The fate of the review is now in the hands of the 10th Circuit, the Post report said. Rules on misconduct do not apply to Supreme Court justices, and the 10th Circuit could dismiss the complaints as moot, since Kavanaugh was formally sworn in as a justice last Saturday. The situation is unprecedented, the Post said.
Circumstances that prompted the latest action are in our early summary, below.

The new judge may be in, but the jury, so to speak, is still out on Brett Kavanaugh’s elevation to the nation’s highest court. Chief Justice John G. Roberts Jr. has received and is holding more than a dozen judicial misconduct complaints against Brett M. Kavanaugh, during the last three weeks of his Senate Judiciary Committee confirmation hearings, the Washington Post reported, citing four people familiar with the matter. The review process is confirmed by several independent reports.
Kavanaugh was confirmed to the Supreme Court on Saturday, Oct. 6, by a vote of 50 to 48 – amid several interruptions from the public galleries , where protesters shouted “Shame!” He was promptly sworn in by Chief Justice John G. Roberts Jr. and retired Justice Anthony M. Kennedy — the court’s longtime swing vote, whom he will replace — in a private ceremony.
The Kavanaugh confirmation, coming just weeks ahead of the Nov. 6 midterm election in which control of Congress is at stake, gave Republicans what they believe is momentum to ensure that they keep their slim Senate majority. Introduction of allegations of sexual assault and other questionable if not unethical, partisan remarks and behavior late in the confirmation hearings process, unresolved by a brief delay for a limited FBI review of some of the charges, left the whole process – and the confirmation – under a dark and probably long-lasting cloud, particularly among women.
Although Kavanaugh is now officially on the court, however, Chief Justice Roberts now has to decide what to do about the complaints forwarded to him by D.C. Circuit Judge Karen LeCraft Henderson, who concluded that some of them were substantive enough they should not be dealt with by Kavanaugh’s fellow appellate court judges. In a statement Saturday, Judge Henderson said the complaints centered on statements Kavanaugh made during the confirmation hearings.
Under the law, “any person may file a misconduct complaint in the circuit in which the federal judge sits,” she said in the statement. “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 angry jabs at Democrats and liberal groups are the focus of more than a dozen complaints against Kavanaugh in the D.C. Circuit, according to reports. Among them is one claim that Kavanaugh lied about the sexual assault allegations against him. Ethics experts say there's no precedent for what happens to those complaints now. Judge Merrick Garland, the senior jurist for the D.C. Circuit who would have reviewed the allegations, former President Barrack Obama’s unresolved Supreme Court nominee, recused himself from the process.
The situation is highly unusual, The Washington Post reported, citing legal experts and several people familiar with the matter. No Supreme Court nominee had ever before been under review while a fellow judge considers misconduct claims. Roberts’s decision not to immediately refer the cases to another appeals court has caused some concern in the legal community. With Kavanaugh now formally installed as a Supreme Court justice, details of the complaint might not become public, or could even be dismissed, legal experts say. Supreme Court justices are not subject to the misconduct rules governing these claims.
“If Justice Roberts sits on the complaints, then they will reside in a kind of purgatory and will never be adjudicated,” said Stephen Gillers, a professor at New York University Law School and an expert on Supreme Court ethics. “This is not how the rules anticipated the process would work.”
The other prospect clouding Kavanaugh’s appointment is that, if Democrats take control of the House of Representatives after the midterm elections, they could order further investigations into the sexual assault allegations against Kavanaugh, as well as the credibility of his Senate testimony and other public statements in response to the accusations — and pursue impeachment if they find he committed misconduct.

Was Brett Kavanaugh Honest?

The Washington Post Fact Checker full review of Kavanaugh’s testimony.

Resources
The Washington Post report on the Kavanaugh complaints referred to a Federal District Appeals Court in Colorado is here.
References for the original post for this story follow.
The Washington Post report on complaints field with Chief Justice Roberts about Kavanaugh’s conduct and testimony during hearings is here.
The New York Times report on Kavanaugh’s confirmation vote is here.
Forbes Magazine Senior Contributor Steve Danning says the Kavanaugh appointment presents the Supreme Court with a generation of ethics questions, here.
The Buzzfeed report of Judge Merrick Garland’s recusal in the review of Kavanaugh ethical complaints is here.
USA Today’s blow-by-blow summation of the contentious confirmation hearings is here.
The VOX report on eight ways the Kavanaugh appointment forever changes the way we view the Supreme Court is here.

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