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All 83 Of The Ethics Complaints Against Justice Brett Kavanaugh Were Dismissed Because He's On The Supreme Court Now

A panel of judges concluded that Kavanaugh is no longer covered by the judiciary's disciplinary system now that he's a Supreme Court justice.

Posted on December 18, 2018, at 4:24 p.m. ET

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WASHINGTON — All of the ethics complaints filed against Justice Brett Kavanaugh during his confirmation proceedings were dismissed on Tuesday after a panel of federal judges concluded that Kavanaugh is no longer covered by the judiciary's disciplinary process.

While Kavanaugh's nomination was pending over the summer and into the fall, dozens of ethics complaints were filed against him, including allegations that he hadn't been truthful when he testified before the Senate during his confirmation hearings, and that his fiery criticism of Democrats and his other detractors at a hearing on the sexual assault and harassment allegations against him in September showed bias and a lack of judicial temperament.

In total, 83 complaints were filed against Kavanaugh. Some were more formal than others. In Tuesday's order, the Judicial Council of the 10th Circuit said it had "greatly liberalized" the standards for accepting complaints, even accepting postcards as long as they identified who had filed the claim.

Legal ethics experts previously told BuzzFeed News that they expected the ethics complaints filed against Kavanaugh to be dismissed once he was confirmed to the Supreme Court, but they also said it was an unusual situation. The 10th Circuit council took on the Kavanaugh complaints after they were transferred from Kavanaugh's former court, the US Court of Appeals for the DC Circuit, by Chief Justice John Roberts in October. The judges on the council wrote that the federal law that laid out the process for pursuing ethics complaints against federal judges did not apply to Supreme Court justices.

"The allegations contained in the complaints are serious, but the Judicial Council is obligated to adhere to the [Judicial Conduct and Disability] Act," the 10th Circuit panel wrote.

The complainants can appeal the council's decision. Kavanaugh declined to comment through a spokesperson for the Supreme Court.

Supreme Court justices are not bound by the federal judiciary's code of conduct that applies to lower court judges, and the high court does not have its own formal internal disciplinary system. Justices have to follow federal laws that require them to recuse if a case presents a conflict of interest, but each justice handles the decision about whether to step aside from a case on their own.

The Judicial Conduct and Disability Act specifically lists the types of judges covered by the law, including circuit judges, district judges, bankruptcy judges, and magistrate judges. It doesn't refer to Supreme Court justices. The law also says that ethics cases could end because of "intervening events," such as the judge no longer serving in that position. When Congress intended a law to apply to the justices, it made a point of doing so explicitly, the 10th Circuit panel wrote.

Kavanaugh was confirmed on Oct. 6, following a bitter fight over his nomination that extended far beyond the walls of the Senate. One of Kavanaugh's high school peers, Christine Blasey Ford, came forward with allegations that Kavanaugh sexually assaulted her when they were in high school at a house party, and other women later accused him of sexual misconduct in high school and college as well. Kavanaugh denied the accusations.

Ford and Kavanaugh testified before the Senate on Sept. 28, and Kavanaugh in his opening remarks angrily lashed out at Democrats in Congress, the Clinton family, and “left-wing opposition groups."

Those comments prompted some of the ethics complaints against him.

DC Circuit Judge Karen LeCraft Henderson and the DC Circuit Judicial Council — Chief Judge Merrick Garland recused himself — had asked Roberts to transfer the complaints against Kavanaugh to another circuit. It was a request in line with how federal courts in recent years have dealt with high-profile ethics cases; judges who previously asked for transfers cited a desire to avoid conflict-of-interest issues.

The 10th Circuit on Tuesday also published an order from Chief Judge Timothy Tymkovich denying a request that he disqualify himself from handling the Kavanaugh complaints. The person who made the request — they aren't named — had claimed Kavanaugh advocated for Tymkovich's nomination to the 10th Circuit in 2003, when Kavanaugh was working in the White House. Tymkovich wrote that the only evidence of Kavanaugh's involvement was an email after Tymkovich was confirmed, suggesting a press release about judicial nominations.

Tymkovich, like Kavanaugh, was on President Donald Trump's shortlist of candidates for the Supreme Court.

UPDATE

Updated with a response from the US Supreme Court spokersperson.

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