Judicial Council signals its hands are tied

The Judicial Council of the Tenth Circuit Court of Appeals has dismissed various complaints against new Supreme Court Justice Brett Kavanaugh, but only because it says his elevation to the High Court insulates him from them.

"Because it lacks jurisdiction to do so, the Council makes no findings on the merits of the complaint," it said

The complaints stemmed from when he was a Judge on the U.S. Court of Appeals for the D.C. Circuit, including while he was testifying before the Senate Judiciary Committee at his nomination hearing.

Chief Justice John Roberts had referred the complaints from the D.C. Circuit to the Tenth. They included that Kavanaugh had made false statements under oath at his nomination proceedings to the D.C. Circuit in 2004 and 2006, as well as for the Supreme Court in 2018 and made inappropriate partisan statements that showed bias was lacking in judicial temperament, and was disrespectful to members of the Judiciary Committee.

The council said the complaints were serious, but that according to law, could only considered against a judge while he was still in that post, not after he had resigned or, in this case, been appointed to the Supreme Court, to which that law did not apply. 

That applies even if the misconduct happened when Kavanaugh was a circuit judge covered by the law.

"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."

It did point out that its decision was subjecxt to be reviewed if the complainants wanted to do that.

"The Tenth Circuit Judicial Council may have reached the conclusion required by law, but it is wholly unsatisfactory to anyone looking for moral leadership from our nation's top jurists," said Fix the Court Executive Director Gabe Roth. "That Chief Justice Roberts sent the complaints to a circuit led by a judge Kavanaugh vetted while working in the Bush White House made little sense," he added. 

Judicial Councils are composed of judges and lawyers that deal with court administrative issues. In this case it is the procedure, created by Congress, "that permits any person to file a complaint in the courts about the behavior of federal judges-but not about the decisions federal judges make in deciding cases."

The Tenth Circuit in 2009 approved added misconduct rules that became part of the national regime.

Kavanaugh was a familiar judicial figure within communications circles when he was on the D.C. court, which has jurisdiction over legal challenges of agency decisions, including the FCC's network neutrality decisions, on which Kavanaugh weighed in.