Chief Justice John Roberts refers ethics complaints against Brett Kavanaugh to 10th Circuit Court of Appeals

October 11, 2018

Chief Justice John Roberts refers ethics complaints against Brett Kavanaugh to 10th Circuit Court of Appeals Erik Cox Photography /

Brett Kavanaugh hasn’t been on the Supreme Court for a full week yet, but the effort to unseat him has already begun.

Chief Justice John Roberts referred 15 ethics complaints about Justice Kavanaugh to the 10th U.S. Circuit Court of Appeals in Colorado on Wednesday. The complaints reportedly have to do with statements Kavanaugh made during his Senate confirmation hearings.

It is unclear whether the complaints will have any authority over a confirmed justice to the highest court, since they were filed when Kavanaugh was still on the D.C. Circuit.

Roberts files Kavanaugh complaints

In a letter posted to the D.C. Circuit Court of Appeals website on Wednesday, Roberts said he was passing the ethics omplaints along to judges who handle such cases on the 10th U.S. Circuit Court of Appeals, based in Denver, CO. Roberts said he received the first three complaints on Sept. 20, a week before Kavanaugh vehemently denied allegations of sexual assault before the Senate Judiciary Committee.

The complaints against Kavanaugh were initially filed with his old court, the U.S. Court of Appeals for the District of Columbia Circuit, where Kavanaugh served for 12 years. D.C. Circuit Judge Karen Henderson announced Saturday that complaints “seek[ing] investigations…of the public statements he has made as a nominee to the Supreme Court” had been lodged. The news came the same day that Kavanaugh was finally confirmed with a narrow 50-48 vote.

The judiciary’s rules allow the public to lodge complaints against a judge, and typically, complaints are filed with the court where a judge serves. But judges have wide discretion to respond to the complaints; they can choose to do anything from throw them away to pass them along to Roberts for referral to another federal court.

Merrick Garland, the D.C. Circuit’s chief judge, would have handled the ethic complaints initially, but he apparently stepped aside. Garland was one of Barack Obama’s picks for the Supreme Court, but his nomination was blocked by Senate Republicans.

That history may have had something to do with the complaint’s referral to another court. Garland’s name came up frequently during the brutal battle to confirm Kavanaugh because many liberals considered Justice Kavanaugh’s seat to be stolen from Garland.

Roberts referred the complaints in a letter to chief judge Timothy Tymkovich of the 10th Circuit, which also handles appeals cases from Kansas, New Mexico, Oklahoma, Utah and Wyoming. Tymkovich is also on President Trump’s list of potential Supreme Court nominees.

Complaints could be invalid

Kavanaugh’s confirmation to the high court may have rendered the complaints toothless, since they were made when he was on a lower court. Lower court judges may find “that intervening events have rendered the allegations moot or make remedial action impossible,” Arthur Hellman, an ethics professor at the University of Pittsburgh, said.

On the other hand, the complaints “allege misconduct that occurred while Kavanaugh was on the D.C. Circuit and subject to the Code of Conduct for U.S. Judges. Any violation of the Code does not disappear because he is now on another federal court,” said Stephen Gillers of New York University, although they “may be found not to be meritorious in the end.”

While the first complaints were lodged before Kavanaugh was confirmed, they come as Kavanaugh is facing calls for impeachment, and it’s likely that some liberals will seize upon them to push for his removal.

The ethics complaints also deal with Kavanaugh’s statements rather than the allegations of assault, echoing criticisms on the left that he showed a temperament unsuited to a Supreme Court Justice throughout his indignant testimony. Some also contend that he lied under oath, particularly about his drinking habits.

While it’s unlikely that Kavanaugh will be the first justice in history to be removed from office — two-thirds of the Senate would need to vote him out — it looks like it will be a while before he’s able to settle into his new job.


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Matthew Boose

Matthew Boose is a staff writer for Conservative Institute. He has a Bachelor's degree from Stony Brook University and has contributed to The Daily Caller and The Stony Brook Press.