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10th Circuit Judicial Council Shut Down Kavanaugh Misconduct Complaints Twice. Case Closed?

WASHINGTON, DC - NOVEMBER 30: United States Supreme Court (Front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (Back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett Kavanaugh pose for their official portrait at the in the East Conference Room at the Supreme Court building November 30, 2018 in Washington, DC. Earlier this month, Chief Justice Roberts publicly defended the independence and integrity of the federal judiciary against President Trump after he called a judge who had ruled against his administration�  s asylum policy �  an Obama judge.�   �  We do not have Obama judges or Trump judges, Bush judges or Clinton judges,�   Roberts said in a statement. �  What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.�   (Photo by Chip Somodevilla/Getty Images)
By William Vogeler, Esq. on May 07, 2019 3:00 PM

Eighty-three ethics complaints were filed against Justice Brett Kavanaugh when he joined the U.S. Supreme Court, but they have been dismissed. Or have they?

The U.S. Tenth Circuit Court of Appeals has twice declined jurisdiction to hear the charges, even after Chief Justice John Roberts asked the appeals court to consider them. Now an attorney has asked the Judicial Conference to review the orders dismissing the complaints. Jeremy C. Bates, a New York attorney, is taking a swing at it.

Kavanaugh, a baseball fan, is hoping for strike three.

Complaints Against Federal Judges

The Judicial Conference is the policy-making branch of the federal courts. It is concerned primarily with court administration, but also hears complaints against federal judges of the district and appellate courts. It does not have authority over justices of the Supreme Court.

In Kavanaugh's case, the complaints arose primarily from his confirmation hearing to the Supreme Court. They include allegations that he made false claims under oath, made inappropriate partisan statements, and treated senators with disrespect. None of the complaints have stuck.

After Kavanaugh was appointed to the Supreme Court, Roberts asked the Tenth Circuit to "exercise the powers of a judicial council with respect to the identified complaints." The appeals court declined, saying Kavanaugh was no longer subject to its jurisdiction and dismissed the complaints. In Bates' petition, he asks the Judicial Conference to review the dismissal of his complaint. He says judges should not be able to avoid ethics inquiries due to promotion.

"In most American jurisdictions, attorneys -- that is, low-ranking officers of courts -- may not evade misconduct proceedings by the simple expedient of resigning from the bars of which they are members," he wrote. "The established norm in the legal profession -- often a rule written and enforced by judges -- is that resignation cannot defeat disciplinary enforcement."

No Ethical Rules for Supreme Court Justices

Of course, that is not exactly true. Alex Kozinski, for example, avoided judicial discipline when he abruptly retired from the Ninth Circuit. He was facing allegations of sexual misconduct during his tenure on the bench.

In a news/editorial, Forbes said Kavanaugh also dodged the bullet. Writer Steve Dunning said the country is in a strange situation where there are no rules of ethical conduct for Supreme Court Justices. "Once upon a time, it might have been argued that there was no need to any such rules since Supreme Court Justices were obviously beyond reproach," he wrote. "With the events of 2018, that is no longer the case."

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