As part of the warfare against Brett Kavanaugh’s nomination to the Supreme Court, Democrats and their allies filed dozens of ethics complaints against Kavanaugh.

Those complaints were referred by Chief Justice Roberts to a judicial council of the 10th Circuit Court of Appeals.

The 10th Circuit judicial council just released an Order dismissing the complaints on the grounds that the judicial code of conduct did not apply to Supreme Court Justice, and now that Kavanaugh was on the Supreme Court, the council could not act.

Here is an excerpt from the Order:

Complaints of judicial misconduct have been filed against Supreme Court Justice Brett M. Kavanaugh, formerly a circuit judge on the U.S. Court of Appeals for the District of Columbia Circuit. 1 The complaints were filed pursuant to the Judicial Conduct and Disability Act, 28 U.S.C. § 351 et seq.

In response to a request from the Judicial Council of the D.C. Circuit, Chief Justice John G. Roberts Jr. on October 10, 2018 transferred the complaints and any pending or new complaints relating to the same subject matter from the D.C. Circuit to
the Tenth Circuit Judicial Council. See Rules for Judicial-Conduct and Judicial-Disability Proceedings, Rule 26 (Jud. Conf. of the U.S. 2015). We have consolidated the 83 complaints filed to date in the D.C. and Tenth Circuits. 2 Complainants’ allegations vary, but in addition to some miscellaneous assertions, they generally allege that Justice 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.

Following the transfer by the Chief Justice, the Tenth Circuit Judicial Council has retained the matter and assumed the initial role ordinarily assigned to the chief circuit judge under 28 U.S.C. § 352(a)-{b) and Rule 11…. For the reasons set forth below, 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.

* * *

Most of the complaints filed against Justice Kavanaugh include allegations that he made false statements under oath, both during his D.C. Circuit confirmation hearings in 2004 and 2006, and during his Supreme Court confirmation hearing in 2018. The complaints generally allege that Justice Kavanaugh in his appearances before the Senate Judiciary Committee (1) falsely testified about his involvement in various events or programs while he was Assistant White House Counsel and Secretary to the President during the George W. Bush administration; (2) falsely testified about his personal conduct, behavior, and recollection of events prior to his joining the federal judiciary; and (3) displayed partisan bias and a lack of appropriate judicial temperament. Some complaints allege he engaged in misconduct while he was a judge on the D.C. Court of Appeals by favoring certain parties or interests.3 In sum, the complaints together allege that Justice Kavanaugh violated the Code of Conduct for United States

* * *

… In conclusion, Congress has not extended the Judicial Conduct and Disability Act to Supreme Court justices.

Justice Kavanaugh served as a circuit judge on the D.C. Circuit from May 30, 2006 to October 5, 2018. He was elevated to the Supreme Court of the United States on October 6, 2018. Because Justice Kavanaugh is no longer a circuit, district, bankruptcy or magistrate judge, a circuit judicial council no longer has the power or jurisdiction under the Act to review his conduct.6

The allegations contained in the complaints 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. 28 U.S.C. § 352(b)(l)(A)(i) (providing for dismissal of a complaint if the complaint is not in conformity with § 351 (a)). Because it lacks jurisdiction to do so, the Council makes no findings on the merits of the complaints.

Who thinks the howling mob will stop howling?


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