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Boardman writes: "The stakes are as high as they are simple: will our court system choose to defend the position one of its own members or will it choose to defend the integrity of the US judicial system. There is no possibility it can do both with any credibility."

The angry crowds massed outside the Supreme Court and the Capitol after the vote. (photo: Roberto Schmidt/AFP/Getty Images)
The angry crowds massed outside the Supreme Court and the Capitol after the vote. (photo: Roberto Schmidt/AFP/Getty Images)

Will Federal Judges Cover Kavanaugh's Butt - or Whup It?

By William Boardman, Reader Supported News

15 October 18

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

he integrity of the US judicial system is actively, albeit quietly, in play. A sitting federal judge, or more likely a panel of sitting federal judges, will be required in the near future to render an assessment of the honesty, integrity, and fitness of a Supreme Court justice to retain his lifetime appointment. The process and the result of the federal judges’ decision will, together, render a judgment as to the integrity of not just one Supreme Court justice but the federal courts as a national institution.

The stakes are as high as they are simple: Will our court system choose to defend the position one of its own members or will it choose to defend the integrity of the US judicial system? There is no possibility it can do both with any credibility.

This is a morality play that began at a time uncertain, reaching back decades. The curtain opened as the president named Brett Kavanaugh to fill a seat on the Supreme Court despite – or because of – his long history of playing Republican hardball against the Clintons over Whitewater, against the Clintons over Monica Lewinsky, for George Bush over the Florida vote count in the 2000 election, for fake intelligence in the lead-up to the Iraq War, and for the White House in its efforts to spy on or torture anyone they chose. On occasion even as a federal judge, Kavanaugh has proved the perfect partisan.

Kavanaugh’s history was a concern when he was first nominated for the federal bench in 2004, but he managed then to get confirmed with only limited doubt about his ability to tell the truth under oath. This year, when his Senate confirmation hearings began on September 4, the concerns about his integrity were still there, but Kavanaugh was protected from his own record because the White House kept most of it secret. Kavanaugh’s refusal to give full and complete answers to questions about his career as a political operative prompted the first formal ethics complaints (even before the Dr. Christime Blasey Ford story broke). One of those complaints, filed by attorney J. Whitfield Larrabee on behalf of two clients – all “under penalty of perjury” – summed up the case against Kavanaugh this way:

Kavanaugh received stolen information taken from Democratic members of the Senate Judiciary Committee while he worked in the White House and he perjured himself while testifying about the matter in Congress in 2004, 2006 and 2018. Kavanaugh violated Canons 1 and 2 of Code of Judicial Conduct by committing crimes of dishonesty while he was a federal judge, by obtaining confirmation of his appointment as a federal judge by false and perjurious testimony, by concealing and covering up his criminal actions and by obstructing justice. He is unfit to serve as a judge by reason of his corrupt, unscrupulous, dishonest and criminal conduct.

This indictment is followed by five pages of factual allegations citing chapter and verse of some of Kavanaugh’s perjurious representations. The complaint concluded with a call for an investigation leading to a recommendation to Congress:

… that Kavanaugh be impeached in accordance with Rules 20 and 23 of the Rules for Judicial-conduct and Judicial-Disability Proceedings.

This is only one of a reported 15 or more formal ethics complaints made about Kavanaugh before the Dr. Blasey Ford farce or his confirmation to the Supreme Court. All the complaints made their way to the chief judge of the Court of Appeals, DC Circuit, on which Kavanaugh then sat. That chief judge is Merrick Garland, whose own appointment to the Supreme Court in 2016 was stonewalled by Mitch McConnell and Senate Republicans (illegitimately making the seat available to usurper Neil Gorsuch). Garland, faced with the complaints against Kavanaugh, did the non-partisan thing and recused himself, leaving the first assessment of the complaints to someone else.

According to an October 6 press release from DC Circuit judge Karen LeCraft Henderson (a Bush appointee and Kavanaugh’s colleague on the bench):

After the start of Judge Brett Kavanaugh’s confirmation hearings, members of the general public began filing complaints in the D.C. Circuit about statements made during those 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.

This characterization is misleading if not just false. The complaints may only refer to false public statements (most of the complaints have not been made public), but those false public statements were in fact made by a sitting judge (just not while he was in court, apparently). Judge Henderson is implicitly arguing for a judicial standard that allows judges to lie whenever they want when they’re off the bench. This is not the standard of judicial temperament most of us thought we signed up for.

According to a letter from Chief Justice Roberts on October 10, he first heard officially about the Kavanaugh complaints starting on September 20. By October 6 he had received 15 complaints that were deemed worthy of review (it’s uncertain how many, if any, were dismissed as frivolous). In conveying the complaints to the chief justice, Judge Henderson, concerned “that local disposition may weaken public confidence in the process,” requested that the complaints be transferred to another circuit (as provided by Rule 26). In his October 10 letter, the chief justice did exactly that:

I have selected the Judicial Council of the United States Court of Appeals for the Tenth Circuit 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 chief judge of the 10th circuit, based in Denver, is Timothy M. Tymkovich (a Bush appointee). He was also on the White House short list with Kavanaugh. And now he is, at least for the moment, in charge of 15 or more Kavanaugh complaints. As of October 15, he had not yet announced how the complaints would be handled. Nor has he publicly addressed his own political bias or his clear conflict of interest in the matter. Early reporting on the Kavanaugh complaints has been somewhat sketchy and sometimes dismissive.

On October 4, the House Progressive Caucus sent a letter to the president in a last-ditch effort to have the Kavanagh nomination withdrawn. The letter, signed by 39 members of Congress, outlined Kavanaugh’s partisan political past and his efforts to minimize or hide it. The letter demanded a full investigation of Kavanaugh’s record and promised impeachment proceedings if the Senate’s accusations of lying under oath were borne out. The letter concluded: “The credibility and reputation of the country’s highest judicial body is at stake.”

Even if the Kavanaugh complaints continue to get scant media coverage, the issue seems unlikely to go away. The Supreme Court is on trial and the chief justice knows it. He also knows that Rules for Judicial Conduct say unambiguously: “As long as the subject of the complaint performs judicial duties, a complaint alleging judicial misconduct must be addressed.” [emphasis added] The chief justice also knows that Kavanaugh’s partisan outburst (quoted at the top) seems to clearly violate the judicial conduct rule against “making inappropriately partisan statements.” The Supreme Court, led by a man with a reputation for defending institutional integrity, is faced with finding a way to justify its own probity – or join the rest of the wreckage of the Trump era.

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William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News. your social media marketing partner


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+22 # johnescher 2018-10-15 11:11
Boofer at Yale? Or Boofer in jail? Or Boofer just a male?
+1 # WBoardman 2018-10-17 13:24
John Roberts holds cards close in comments on Boofer:

Quoting Boofer's own words, Roberts sets a standard
that Boofer – by any reasonable measure – will have a hard
time meeting.

The quote at the top of this viece is, in that context,
pretty much disqualifying.

Doesn't mean Boofer gets disqualified, but will take some
tying in mental knots to avoid it.

Quite possible, of course.

But Roberts has left himself running rom.
+11 # MikeAF48 2018-10-15 14:44
60 minutes Lesley Stahl one of the best interviews I've seen. She pretty much left no hide on Trumps back. She brought out the true con in Trump, never heard so much wissy washey from trump in my life. Hats off to Lesley excellent work.
+6 # economagic 2018-10-15 15:02
Boardman nails it again. Stay tuned folks, the show is just beginning.

Also relevant today, George Lakoff's "Hierarchy" (on RSN) and the last day to comment on the proposal by the National Park Service (or its appointed czar) to repeal the entire First Amendment by regulatory fiat, a maneuver that the Republican party decried to a man (sic) when Democrats did it.
+1 # Robbee 2018-10-15 17:22
Will Federal Judges Cover Kavanaugh's Butt - or Whup It? William Boardman, Reader Supported News, 15 October 18


the case has been assigned to another one of dickhead's "dirty 2 dozen plus one" - the 25 rabid, conservative, federalist society creeps from whom dickhead listed in 2016 he would pick his supremes!

it will sound all nicey, nicey, almost reasonable when another midnight judge endorses midnight k!
+16 # dquandle 2018-10-15 20:38
"led by a man with a reputation for defending institutional integrity, "

A man who tells the US public that there is any possible way of interpreting the US constitution as saying that corporations are people, brings nothing remotely resembling "integrity" to his office or "institution"
+4 # WBoardman 2018-10-16 13:59
dquandle is rightly skeptical that John Roberts
is a man of personal integity
(racism is over!)
but my perhaps too succinct comment
was more in reference to his vanity than integrity.

He is reputed (by some, somewhere, so they say)
to be concerned about perceptions of court's integrity
by the general public or some other cohort.
What I was positing was a John Roberts
with enough concern for his "place in history"
such that Kavanaugh would become a step too far
down an already corrupt path.

This is pure anaytical speculation,
a straw to grasp in hope (likely vain),
not a prediction.

But I do think the dynamic Roberts faces is real and serious,
that he has been handed a bear by the tail
(nice metaphor, huh)
and that neither he nor the bear will give in quietly.

In that context, the more attention paid to the story, the better.

There are at least 15 legally defensible ethics complaints
against Kavanaugh (most if not all having nothing to do
with Dr. Ford, reportedly), but only one is currently public
(to my knowledge).

Let's see the others.
Drip, drip, drip.... splash?
+1 # jon 2018-10-16 19:42
Yes, this a method for John Roberts to hand-off the stink of this to some "lesser" operative, and thereby - he hopes - cleanse himself of being involved.

Sorry, John, this is altogether too transparent.
+1 # WBoardman 2018-10-16 20:14
maybe, jon, and maybe not

This came to Roberts only because Garland recused.
He's following standard procedure (as it were)
by asking another chief judge to handle it per protocol.

What Denver does with it will tell us something.
And that may be bad if everything is dismissed.
But that may also set off tumult in the legal world.

Presumably Denver will send some recommendation to Roberts,
at which point the picture will be very different.

I can't imagine Roberts looks forward to it.
I can't imagine Roberts thinks Kavanaugh is honest.
After all, Kavanaugh stole some of Roberts's own dishonesties,
like the balls and strikes hoax.

Thing is, he also has to call balks.
+4 # DongiC 2018-10-16 03:59
The mess maker-in-chief has turned his attention to the Supreme Court with the appointment, and, now confirmation of Brett Kavanaugh. Wait until the conservatives on the highest bench do in Roe vs Wade. Then, we will have another mess. This one will rock the nation and Trump's goal to divide the country and make the biggest mess of all will become more apparent. And, guess who will have a plan for national peace, naturally, under his inspired [sarcasm] leadership - King Donald I. The Trumpites can hardly wait to sing "God save the King"!
+1 # jon 2018-10-17 08:37
Yes, this a method for John Roberts to hand-off the stink of this to some "lesser" operative, and thereby - he hopes - cleanse himself of being involved.

Sorry, John, this is altogether too transparent.

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