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Merrick Garland Has Recused Himself From The Ethics Complaints Against Brett Kavanaugh

Multiple ethics complaints have been filed against Kavanaugh, including about his heated Senate testimony last week.

Posted on October 6, 2018, at 10:59 a.m. ET

Judge Merrick Garland
Kevin Lamarque / Reuters

Judge Merrick Garland

Chief Judge Merrick Garland disqualified himself from handling ethics complaints against US Supreme Court nominee Brett Kavanaugh, the US Court of Appeals for the DC Circuit announced Saturday morning.

The statement did not explain why Garland — whose own nomination to the Supreme Court in 2016 was unsuccessful after Republicans refused to act on it — had decided to step aside, or provide an update on the status of the complaints.

Multiple ethics complaints have been filed against Kavanaugh in his current court, the US Court of Appeals for the DC Circuit, about his testimony in recent weeks in the US Senate and his response to allegations of sexual misconduct. The chief judge of the circuit normally handles ethics cases, but they have discretion to step aside if they conclude “circumstances warrant disqualification,” under the federal judiciary’s rules.

If the chief judge is disqualified, the complaint falls to the next most senior judge of the court, in this case Judge Karen LeCraft Henderson, who issued Saturday’s statement. The fact that the statement came from the DC Circuit suggests it hasn’t been transferred to another circuit.

In other high-profile cases, courts have asked Supreme Court Chief Justice John Roberts to assign them elsewhere, to avoid any appearance of a conflict of interest. The Supreme Court has not responded to requests for comment about whether the DC Circuit had asked to transfer the Kavanaugh complaints; a DC Circuit representative declined to comment.

Judicial ethics experts previously told BuzzFeed News that they expected the complaints filed against Kavanaugh to be dismissed if he’s confirmed to the Supreme Court. Lower court judges are subject to a code of conduct and an internal misconduct review system, but Supreme Court justices are not. Still, ethics experts said that Kavanaugh’s partisan rhetoric in his Senate hearing last week — including railing against “left-wing” groups — could be an ethical issue that follows him whether or not he is confirmed to the Supreme Court.

Chris Wattie / Reuters

BuzzFeed News has confirmed at least three complaints filed in the DC Circuit against Kavanaugh; two relate to his responses to allegations of sexual misconduct, including his controversial Senate testimony on Sept. 27, and one is about his Senate testimony at his first hearing in early September. Judicial misconduct complaints are normally not made public, but the people who file them aren’t prohibited from discussing them.

Henderson’s statement doesn’t indicate if the court has taken action on the complaints so far: “After the start of Judge Brett Kavanaugh’s confirmation hearings, members of the general public began filing complaints in the D.C. Circuit about statements made during those hearings. The complaints do not pertain to any conduct in which Judge Kavanaugh engaged as a judge. The complaints seek investigations only of the public statements he has made as a nominee to the Supreme Court of the United States.”

The Senate is expected to confirm Kavanaugh to the Supreme Court on Saturday.

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