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Boardman writes: "That's the whole argument: that Kavanaugh gets to escape judicial accountability, and his getaway car is his seat on the Supreme Court. This is cultural madness and legal absurdity. What were those Tenth Circuit judges thinking?"

Supreme Court Associate Justice Brett Kavanaugh issued his first opinion Tuesday in an obscure arbitration case. (photo: J. Scott Applewhite/AP)
Supreme Court Associate Justice Brett Kavanaugh issued his first opinion Tuesday in an obscure arbitration case. (photo: J. Scott Applewhite/AP)

Court Uses Law's Absurdity to Allow Unfit Kavanaugh to Remain as Justice

By William Boardman, Reader Supported News

10 January 19

The allegations contained in the complaints [against Judge Kavanaugh] are serious, but the Judicial Council is obligated to adhere to the Act. Lacking statutory authority to do anything more, the complaints must be dismissed because an intervening event – Justice Kavanaugh’s confirmation to the Supreme Court – has made the complaints no longer appropriate for consideration under the Act…. Because it lacks jurisdiction to do so, the Council makes no findings on the merits of the complaints.

– Order of the Judicial Council of the US Tenth Circuit, December 18, 2018

hat is the sound that eight federal judges make when they know full well they’re doing something rotten but can’t bring themselves to defend the integrity of their own judicial system.

This order deals with complaints against federal judge Brett Kavanaugh, whose reputation for perjurious testimony is documented at least as far back as 2004. Last summer, the US Senate gave only cursory attention to whether Kavanaugh had repeatedly lied under oath on a variety of occasions, including the Senate judiciary committee hearings of 2018. Kavanaugh was a federal district judge from May 30, 2006, until October 6, 2018, when he was sworn in as a Supreme Court justice. At that time, the majority of 83 ethical conduct complaints addressing his behavior as a district judge had already been filed. In an unusual procedure, the Tenth Circuit Judicial Council has made these 83 complaints public on its website, while concealing the identities of the complainants. 

The first batch of Kavanaugh complaints went to the DC Circuit, which passed them to Supreme Court Chief Justice John Roberts, who passed them on to the Tenth Circuit on October 10. At that time I wrote in Reader Supported News that the credibility of the US judicial system was the core issue in the Kavanaugh case:

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 still true, as the Kavanaugh complaints appear headed back to the Chief Justice’s lap for further action, or inaction.

It took the eight judges of the Tenth Circuit Judicial Council just over two months to decide to do nothing about any of the 83 misconduct complaints against Judge Kavanaugh. Worse, the court’s order asserted in a strained legal argument that there was nothing that could be done legally about the 83 misconduct complaints against Judge Kavanaugh for one reason, and one reason only – because he had become Justice Kavanaugh. That’s the whole argument: that Kavanaugh gets to escape judicial accountability, and his getaway car is his seat on the Supreme Court. This is cultural madness and legal absurdity. What were those Tenth Circuit judges thinking? 

What they actually do is create a legal fiction, starting with a false assertion in the first sentence: “Complaints of judicial misconduct have been filed against Supreme Court Justice Brett M. Kavanaugh….” In fact, most of the complaints were filed against Kavanaugh when he was a district judge. All the complaints cite judicial misconduct by Kavanaugh as a district judge. The false statement of reality is necessary to support the wonderland the judges need to escape dealing with what the court saw as the substance of the charges:

… that Justice [sic] Kavanaugh made false statements during his nomination proceedings to the D.C. Circuit in 2004 and 2006 and to the Supreme Court in 2018; made inappropriate partisan statements that demonstrate bias and a lack of judicial temperament; and treated members of the Senate Judiciary Committee with disrespect.

Much of this is beyond reasonable dispute. Both professional and lay witnesses abound. More than 2,400 law professors are on record opposing Kavanaugh as unfit to serve on the Supreme Court. Even Kavanaugh has acknowledged and quasi-apologized for some of the behavior in the 83 complaints. The Tenth Circuit judges acknowledge that the complaints are “serious” but then choose to make “no findings on the merits of the complaints.” How is this not deliberate judicial malpractice?

The answer to that is a legal quibble. According to the Tenth Circuit judges, the applicable statute for federal district judges is not applicable to Supreme Court justices. This is certainly true in the sense that if the complaints made against Kavanaugh referred to his behavior as a justice, the statute would not apply. The statute is the Judicial Conduct and Disability Act, 28 USC 351 et seq., which applies specifically to federal circuit judges, district judges, bankruptcy judges, and magistrate judges. It is one of the abiding scandals of American government that the Supreme Court is subject to no rules of ethics of its own and that Congress has done little to remedy the ridiculous result: that those with the most authority are held the least accountable. Or as the Tenth Circuit judges put it:

… the complaints must be dismissed because, due to his elevation to the Supreme Court, Justice Kavanaugh is no longer a judge covered by the Act. See 28 USC 352(b)(1)(A)(i). [emphasis added] 

The court thereby creates a reality in which:

(1) Over a period of 13 years as a judge, Kavanaugh committed objectionable acts;

(2) Complaints were lawfully filed in response to his objectionable acts;

(3) Some complaints were based on objectionable acts Kavanaugh committed before he was a circuit judge and subject to the Act, but these complaints were not dismissed;

(4) Despite unambiguous jurisdiction at the time of the acts and unambiguous jurisdiction at the time of the filing of the complaints, the Tenth Circuit claims it’s helpless to act.

The Tenth Circuit does not explain, or even address, this absurdity. The court’s order argues that “The Act thus applies only to complaints that allege that one of those covered judges [which Kavanaugh was] ‘has engaged in conduct prejudicial to the effective and expeditious administration of the courts’ “ [which Kavanaugh patently did as a circuit judge]. The court holds that whatever Kavanaugh did as a judge that was complained about while he was still a judge can all be ignored because of an “intervening event,” such as a judge’s death. Kavanaugh did not die, although he kind of went to heaven. The court cites Rule 11(e) to justify its abdication of anything like the rule of law. Rule 11(e) in its entirety says:

Intervening Events. The chief judge may conclude the complaint proceeding in whole or in part upon determining that intervening events render some or all of the allegations moot or make remedial action impossible.

Kavanaugh’s elevation to the high court did not make any of the complaints moot. If anything, his elevation made them more pertinent than ever. Kavanaugh’s elevation to the high court hardly made remedial action impossible, although it probably makes remedial action more difficult. The court’s order cites four precedents for its action, three of which are irrelevant (involving judges who were transferred, retired, or whose objectionable behavior was before becoming a judge). The one relevant citation involves several judges for whom the dismissed complaint is ruled “frivolous” as well as Supreme Court Justice Clarence Thomas, who is dismissed “for want of jurisdiction” as a sitting justice. The relevance here is about as slim as it gets, comparing one “frivolous” complaint to Justice Kavanaugh’s 83 complaints acknowledged by the court to be “serious.”

As described by the court’s order, the judicial council held no hearings, examined no evidence for its probative value, or otherwise investigated any of the 83 complaints against Kavanaugh. The court dismissed those complaints solely on the tenuous jurisdictional basis that they were out of the court’s reach. The court chose not to discuss any other possibly more judicious responses to the prickly Kavanaugh case, leaving the country still saddled with a justice palpably unfit for his office. 

The court defended its conclusion by noting that Congress, in other instances, had indeed included justices under its statutes and offered as an example 28 US Code 455 – “Disqualification of justice, judge, or magistrate judge.” This statute is likely to become increasingly important as long as Kavanaugh remains on the bench, since it mandates that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Kavanaugh’s televised performance of personal bias against Democrats and his stated conspiracy beliefs should be enough to disqualify him from a wide range of political cases. With 83 serious conduct complaints to be examined, it might take less time to assess what cases there are where Kavanaugh could reasonably avoid disqualification.

Nor is the impeachment of Justice Kavanaugh off the table. That’s a distant outcome under present circumstances, but as the court’s order notes in its penultimate paragraph:

The importance of ensuring that governing bodies with clear jurisdictions are aware of the complaints should also be acknowledged. See Nat’l Comm’n on Judicial Discipline and Removal, “Report of the Nat’l Comm’n on Judicial Discipline & Removal,” 152 F.R.D. 265, 342-43 (1994). Accordingly we request that the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States forward a copy of this Order to any relevant Congressional committees for their information. [emphasis added]

For now, the Republican judicial atrocity represented by Justice Kavanaugh sits undisturbed. The Tenth Circuit’s order is subject to appeal until January 29, 2019. As of January 9, a Tenth Circuit court spokesperson declined to say if any appeal had yet been filed, citing appellant confidentiality. One of the self-identified complainants, retired attorney Larry Behrendt, filed his five-page complaint October 2, concluding:

Judge Kavanaugh made repeated, inappropriate partisan statements to the Senate Judiciary Committee during his testimony on September 28, and is thus guilty of misconduct under the Act [28 USC 351ff] and the Rules. This misconduct is particularly egregious, as it took place in front of millions of people, at a time when scrutiny of the law and the judiciary is at its highest, and where Kavanaugh had a clear duty to display judicial temperament and deportment.

After the Tenth Circuit Judicial Council skirted any serious consideration of Behrendt’s complaint or the 82 others, the attorney published an op-ed explaining why he thought the court was wrong. He noted that the law is silent on how to handle a nexus of offenses under transitional circumstances like Kavanaugh’s. That hardly makes it likely that the intent of Congress was to give a lying partisan a free pass to the Supreme Court. Behrendt says he hasn’t decided whether to appeal the Tenth Circuit order. Maybe the Tenth Circuit will find some backbone. Maybe the chief justice will care more about his court’s integrity than the slippery hack who is its newest member. Until someone finds the courage to confront the truth of this legal fiasco the rest of us are stuck with a lifetime travesty of justice.

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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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+68 # BetaTheta 2019-01-10 14:24
The upshot: Kavanaugh is now "Too Big To Fail."
+24 # Salus Populi 2019-01-11 00:37
Perjury before Congress is a felony, so the phrase should be "too big to jail." But the "integrity" of the Court that concerns Boardman was lost long ago. Scalia, Rehnquist, O'Connor, Thomas, and Kennedy all should have been impeached for the clearly partisan and conflict-ridden decision in Bush v. Gore. Four of the five -- all but Kennedy -- had blatant and demonstrable conflicts of interest, yet refused to recuse themselves -- and added a codicil to the case that stated that their decision could not be used as a precedent by any future Court, just in case liberal justices might regain a majority.

[Indeed, on his very first case as Chief Justice, Rehnquist demonstrated self-serving bias that should have led to his immediate impeachment.]

Since the 2000 case, the Justices have acquitted themselves of a whole panoply of deliberately partisan and fascist-tinged cases, and will doubtless continue to chip away at Constitutional protections and the rule of equitable law, setting the stage for the end of democracy as we know it [if indeed that has not already taken place some decades ago].

With Joe Biden considering a serious run in 2020, after having co-led the pack that disgracefully tarred Anita and outrageously confirmed Thomas to the High Court despite his demonstrable perjury and self-dealing, and with the Democrats never having apologized for their unanimous elevation of the execrable late Antonin Scalia, don't look to the 'Rats for salvation.
+16 # economagic 2019-01-11 14:39
Yes, the High Court has never been as dedicated to "blind justice" as we would like it to be, but Bush v Gore broke new ground in the "judicial activism" that the Republican party claims so ardently to detest.
+9 # randrjwr 2019-01-12 11:50
This is all part of our "Government of the people, by the the rich and powerful, for the rich and powerful." Lincoln must be turning over in his grave.
+9 # WBoardman 2019-01-12 15:39
Salus Populi makes an excellent point about the Supreme Court's
historical integrity, a phrase that is something of an oxymoron.

Santa Clara vs Southern Pacific Railroad in 1886 is an earlier
marker, when the court invented corporate personhood.

The 2000 Bush vs Gore decision to void American voting
is perhaps the glaring peak of court partisanship.

My perspective was more limited and rooted in the hope
that recovery is still possible. Quite likely a vain hope.
But what's a better alternative?

Maybe John Roberts cares more about how history will
see him than ideological partisanship.
Maybe John Roberts realizes what a fool he was to declare
that prejudice in America was over, so voting rights needed
no protection.
And maybe not.

But IF he is capable of embarrassment,
Kavanaugh should be enough of an embarrassment
to engage his attention.

Kavanaugh's character remains in play
and keeping it in play is more useful than rolling over.

And the same should be true for Thomas.
Maybe others....
+10 # Robbee 2019-01-11 09:19
Quoting BetaTheta:
The upshot: Kavanaugh is now "Too Big To Fail."

- it's a mad mad mad mad world; the wrong people are in charge?
+5 # chapdrum 2019-01-11 22:58
Yet another "Mission Accomplished" for his sad party.
+3 # WBoardman 2019-01-12 15:20
Or is it too high to fall?
+21 # Ken Halt 2019-01-10 22:12
Kavanaugh, his decsions, dissents, career, and reputation, will ever be tainted, and rightly so, by his angry, petty-minded, mean spirited, and wholly inappropriate display of partisan rancor during the Congressional hearings regarding his nomination to the SCOTUS.
+19 # Wally Jasper 2019-01-10 23:36
This is a very important issue. It applies equally to the President who, in this case, also claims that he is above the law and therefore unaccountable. Dictators, kings/queens, and fascist autocrats usually forcibly try to get away with that, but in a functioning democracy no one should be considered above the law. Well stated, WB. Really, what were those chicken-shit 10th circuit judges thinking? What kind of precedent did they establish?
+22 # chapdrum 2019-01-10 23:43
Anyone in her/his right mind understands that if she/he had behaved the way that Kavanawww did on day 2 of his hearing (job interview), that would have been in literal effect, the end of the job interview.
+13 # lfeuille 2019-01-11 00:04
Impeach him.
+5 # Enoch E Birch 2019-01-11 02:09
But the US constitutional claim to provide freedom, liberty and justice for all is not.
+8 # 2019-01-11 04:58
Does Trump really need another liar by his side? Alas so it seems.
+19 # RLF 2019-01-11 08:08
Where is the Bar Asso. in all of this. Seems to me that a judge that lies under oath is unfit to be a member.
+6 # economagic 2019-01-11 14:36
The US Bar Association supported Kavanaugh weakly if at all.
+8 # Porfiry 2019-01-11 08:46
Is there an impeachment process for justices of the supreme court like that for presidents? If so, pray that the democratic party gets enough members in the senate to remove him from office. His drunken activities as a college student, as nasty as they were, are nothing compared to what he has done in his profession. These should have been the focus of the democrats on the judiciary committee during the confirmation process.
+4 # dquandle 2019-01-12 14:23
The "Democrats" are too craven and corrupt to attempt to impeach him.
+4 # randrjwr 2019-01-12 23:15
Yes, the impeachment process applies to Supreme Court Justices, and there are processes for putting crooked Presidents, crooked bankers, crooked mortgage brokers, etc., etc. in jail, but, somehow, they rarely get used against the rich and powerful, just against ordinary folk. And there is a process for keeping unfit nominees of the federal courts and out of the cabinet, but they rarely get used either--else nobody currently in the Cabinet would be there. Why do we find it so difficult to hold power accountable?
+12 # 2019-01-11 09:52
Roberts has demonstrated his concern and effort to maintain the integrity of the Court. The 10th Circuit's sending the complaints back to the SJC provides him with one more -- especially significant -- opportunity to preserve confidence in the Court and help to ensure his legacy.
+3 # angryspittle 2019-01-11 10:06

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