December 10, 2018
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Chief Justice Roberts sends Kavanaugh complaints to Colorado court

Andrew Harnik | AP
Andrew Harnik | AP
Then Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington, Sept. 27, 2018. Chief Justice John Roberts is referring complaints against new Supreme Court Justice Brett Kavanaugh to federal judges in Colorado and neighboring states.

WASHINGTON — Chief Justice John Roberts Jr. on Wednesday referred more than a dozen judicial misconduct complaints filed recently against Brett Kavanaugh to a federal appeals court in Colorado.

The 15 complaints, related to statements Kavanaugh made during his Senate confirmation hearings, were initially filed with the federal appeals court in Washington, where Kavanaugh served for the last 12 years before his confirmation Saturday to the Supreme Court.

The allegations center on whether Kavanaugh was dishonest and lacked judicial temperament during his Senate testimony, according to people familiar with the matter.

Last month, a judge on the U.S. Court of Appeals for the District of Columbia Circuit asked Roberts to refer the complaints to another appeals court for review after determining that they should not be handled by judges who served with Kavanaugh on the appellate court.

In a letter Wednesday to the U.S. Court of Appeals for the 10th Circuit, Roberts said he selected the court in Colorado 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 Denver-based appeals court is led by Chief Judge Timothy Tymkovich, the former solicitor general of Colorado who was nominated to the bench by President George W. Bush. The 10th Circuit handled another recent judicial misconduct case from Washington involving the former chief judge of the District Court.

It is unclear what will come of the review by the 10th Circuit. The judiciary’s rules on misconduct do not apply to Supreme Court justices, and the 10th Circuit could decide to dismiss the complaints as moot now that Kavanaugh has joined the high court.

“There is nothing that a judicial council could do at this point,” said Arthur Hellman, a law professor at the University of Pittsburgh and expert on the operation of federal courts.

He said it was unprecedented for a new justice to face such a situation. Hellman predicted that the 10th Circuit will likely close the case “because it is no longer within their jurisdiction,” now that Kavanaugh has been elevated to the Supreme Court

The letter from Roberts does not mention Kavanaugh by name. On Saturday, Judge Karen LeCraft Henderson of the District Circuit, who originally requested the transfer, said in a statement that the court had received complaints about Kavanaugh since the start of his confirmation 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,” said Henderson, a Bush nominee.

Complaints made against judges are usually handled by the chief judge. Henderson took over from Chief Judge Merrick Garland, who recused himself from the matter.

When complaints were filed in late September and early October, Henderson dismissed some but concluded that others were substantive enough to refer to another judicial panel for investigation.

Roberts received the first transfer request on Sept. 20, followed by four additional requests on Sept. 26, Sept. 28, Oct. 3 and Oct. 5, according to his letter. He did not immediately move to refer the filings to another appeals court.

People familiar with the matter who spoke on the condition of anonymity say the allegations had already been widely discussed in the Senate and in the public realm. Roberts did not see an urgent need for them to be resolved by the judicial branch while he continued to review the incoming complaints, they said.

The complaints landed with Roberts because of his role as chief justice of the United States, not because Kavanaugh is now a member of the Supreme Court.

Such complaints are usually confidential unless the judicial council investigating issues a public report about its findings.

The existence of misconduct complaints and the procedure can be disclosed, according to the rules, “when necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct or disability.”

The public nature of a case last year involving former 9th Circuit judge Alex Kozinski, who was accused of sexual misconduct, was unusual. The chief judge of the 9th Circuit asked Roberts to transfer the case for review after The Washington Post reported allegations against Kozinski.

Roberts referred the case to the appeals court in New York City. The judicial council of that court publicly announced it was closing its investigation because Kozinski had retired, saying that because he “can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated.”

Washington Post writers Robert Barnes and Carol D. Leonnig contributed to this report.

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