By Kevin Daley
A judicial ethics panel has been asked to review orders dismissing misconduct complaints against Justice Brett Kavanaugh relating to his emotionally charged testimony before the Senate Judiciary Committee.
The petition, from a New York attorney called Jeremy C. Bates, was sent to the Judicial Conference of the United States, the policy-making entity of the federal judiciary. The Conference’s Committee on Judicial Conduct and Disability would review the matter. Judge Anthony Scirica of the 3rd U.S. Circuit Court of Appeals leads the committee.
Bloomberg Law first published the complaint.
The U.S. Court of Appeals for the D.C. Circuit, the federal appeals court on which Kavanaugh sat before his elevation to the Supreme Court, received dozens of misconduct charges after he rebutted allegations of sexual misconduct before the Judiciary Committee in September 2018. Critics say Kavanaugh’s testimony was ridden with partisanship and perjury.
Chief Justice John Roberts referred those complaints to a disciplinary council of the 10th U.S. Circuit Court of Appeals, which dismissed them in short order without a finding on the merits. The council said it had no power to pursue the allegations since the Judicial Conduct and Disability Act does not apply to Supreme Court justices. The 10th Circuit affirmed that decision in March.
In his petition to the Judicial Conference, Bates argued judges should not be able to evade ethics inquiry due to retirement or 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,” Bates wrote. “The established norm in the legal profession — often a rule written and enforced by judges — is that resignation cannot defeat disciplinary enforcement.”
Several judges have recently retired to avoid misconduct investigations. Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals retired after some 15 women accused him of sexual harassment. Judge Maryanne Trump Barry, the president’s sister, similarly retired from the 3rd U.S. Circuit Court of Appeals shortly after a disciplinary council opened an investigation relating to her financial affairs.
Bates said those events show a time-of-filing rule should govern judicial conduct complaints. That rule provides that a court’s power to hear a case is determined at the time a complaint is filed.
“Recent events demonstrate that judicial-misconduct proceedings are subject to the kind of jurisdictional manipulation that the time-of-filing rule is designed to prevent,” Bates wrote.
It’s not clear if or when the committee will take action on the petition.
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