America Has No Way to Hold Accountable Someone With Kavanaugh's Power

By Dahlia Lithwick, Slate

23 December 18

The 83 ethics claims filed against Brett Kavanaugh that cannot be processed underscore what SCOTUS lost this year.

hat goes around comes around.”

This was a sentence in then-Judge Brett Kavanaugh’s prepared oral statement to the Senate Judiciary Committee on Sept. 27 in response to claims made by Christine Blasey Ford about an alleged sexual assault he’d participated in when they were both in high school. After he uttered these words to the committee and the world, many on the left saw this phrase as an open threat, from the nominee, to use his perch to punish those seeking “revenge on behalf of the Clintons” among the “outside left-wing opposition” and the Democratic senators who advanced the accusation. As Jonathan Chait wrote in New York magazine at the time: “Here was a man apparently threatening revenge on his political enemies, and asking for a lifetime appointment with supreme power of judicial review with which to do it.” Right before the final vote to confirm the judge, Sen. Chris Murphy, D-Connecticut, tweeted, “After I spend my 5 min today with the single copy of the FBI report I will be thinking of how Kavanaugh calls Democrats ‘embarrassments’, thinks we are engaged in conspiracy against him on behalf of the Clintons, and promises when he’s on the Court ‘what goes around comes around’.”

Reasonable people can differ. I didn’t think “what goes around comes around,” read in context, was as much a threat to punish Democrats and liberals for their accusations, as it was a promise that someday, a liberal judicial nominee will be subject to horrific and abusive scrutiny by Senate Republicans, and that nominee will deserve it. Of course, Kavanaugh knows more about how Senate Republicans already treat judicial nominees than most of us; one of the many ethics complaints leveled at him was that when he was in the White House he knowingly used emails stolen from Senate Democrats to help advance George W. Bush’s nominees. So I think we should take him at his word when he says that Republicans on the Judiciary Committee will be willing to lie and cheat to game the system.

But whatever the intention, Kavanaugh’s threat was a chillingly ugly one, and his subsequent not-quite-apology in the Wall Street Journal was not an adequate corrective. That’s why more than 2,400 law professors refused to support him after that testimony. That’s why now-retired Justice John Paul Stevens advocated, in response to Kavanaugh’s second round of remarks, that he not be confirmed. As Stevens noted after the hearings, the testimony “suggest[ed] that he has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities.” The legal test for such prejudice isn’t whether a jurist is actually biased but whether he has evinced even an appearance of bias. No reading of Kavanaugh’s opening statement can avoid the appearance of partisan political bias and the Wall Street Journal walk back did nothing beyond claiming that the judge was emotional and out of control, something we’re apparently meant to forgive with all the magnanimity he’d shown his own opponents.

This is immaterial, anyway. The real problem with the threat that “what goes around comes around” is that it’s actually a lie. There were 83 ethics claims filed against Kavanaugh during his confirmation process, the majority of them based on the judge’s conduct during the process. These claims went around and around and around again, but they never came to anything. The D.C. Circuit Court of Appeals handed them off to Chief Justice John Roberts, who in turn handed them off to a special judicial council panel of judges from the 10^th U.S. Circuit Court of Appeals, which—as was always expected—determined this week that while the ethics complaints leveled against Kavanaugh “are serious,” the panel must dismiss them all, because it has no statutory authority over Kavanaugh, due to the fact that he is now seated on the Supreme Court. And Supreme Court justices are not covered by the 1980 code of conduct, the Judicial Conduct and Disability Act, or by any code of conduct, because, well, they sit on the Supreme Court. So what went around, rather than coming around, simply stopped.

Again, this was not a surprise. Ongoing scholarly debate about whether the judicial conduct rules can be applied to sitting Justices as opposed to lower federal judges, or applied to conduct when the individual was a lower federal judge, suggests that there probably isn’t an easy fix here. And at this point, it’s not clear that it’s in anyone’s political interest to launch polarizing impeachment hearings against Kavanaugh, who will now serve for life.

The written complaints against him in the filings include claims that he “shouted and behaved disrespectfully” during his Senate hearings; “lowered public confidence in the courts”; lied under oath in 2006 about a Bush era wiretapping program; lied under oath about receiving documents stolen from Senate Democrats in 2002; lied about the alleged assault of Christine Blasey Ford; lied about words and references in his high school yearbook; and was “evasive, condescending and aggressive” in his Senate testimony, especially toward female senators. We do not know which of the 83 complaints was deemed “serious” by the panel. You can try to decipher it for yourself by reading through the retracted public versions, which are available here. It’s an engaging read: One complaint noted that Kavanaugh’s conduct “reflects on the legacy of every ‘judge’ in America.”

The fact that there can be no accountability despite “serious” allegations is, in some sense, the common theme of the time. It’s part of a drumbeat that insists: We cannot indict a sitting president; we cannot discipline a sitting justice. If you are untruthful for a long enough period of time, you can find your way into a job where there are no consequences for being untruthful. One can hardly blame the panel for applying the statute as written, or the chief justice for referring it to a panel that had no remedy to offer, or anyone, really, for the fact that the conduct of September had an expiration date of less than a week. One can hardly blame Ed Whelan for fundraising off his advocacy efforts after just 30 days in the naughty chair for promulgating a shameful and false doppelgänger theory. And of course the fact remains that Christine Blasey Ford has moved houses four times due to the threats against her life, which persist, while Kavanaugh is back to coaching basketball. This episode thus concludes with the same wearying lessons: The courts and the law are a serious enterprise; whatever the woman was complaining about didn’t even warrant an intellectually coherent response; her testimony was “credible” but not truthful; her claims were heartbreaking but not remediable.

Of course, to many millions of Americans, Ford’s testimony was credible and compelling and persuasive. It went unrefuted by Republican claims that she had somehow misremembered her assailant (made by Sen. Susan Collins) or was part of a hoax (made by President Donald Trump) or that LOUD SHOUTING should make it go away (made by Sen. Lindsey Graham). For so many Americans, the enduring visceral impression of September was of her authentic pain and Brett Kavanaugh’s snarling fury; the enduring visceral impression is that she wasn’t even taken seriously enough to be taken seriously.

The 83 letters of complaint just filed in the “oh well” bin of federal judicial history give voice to this discrepancy: They make clear that the public conviction that something profoundly disturbing had happened has now been “resolved” only because it has been papered over. That papering over of the truth was a team effort, bolstered by the White House, Fox News, Senate Republicans, and now the federal judicial branch. The suffering of one man, so furious at being called to account that he chose to undermine the independence and integrity of the courts, became the story that carried the day. The woman herself was an anomaly that didn’t warrant a real probe.

But that didn’t make it disappear. For the young female law students who can’t understand why they are still bothering with law school, the sexual assault survivors still traumatized by the events of the fall, the millions of victims wondering whether it will ever be worth it to report abuse by the powerful, and everyone else who is still reeling at what all happened in September, this public corroboration that the federal judicial branch has no mechanism to police the federal judicial branch is just another bruise on a still-open wound. In September, horrified Americans heard from Senate Republicans that Ford’s testimony was not all that serious and so there would be no consequences. This week, they heard that the conduct alleged was “serious” and also that there would be no consequences. The lesson is depressingly clear: When you are powerful enough, what goes around eventually doesn’t come around. It just goes away.