Chief Justice John Roberts received more than a dozen judicial misconduct complaints in recent weeks against Brett M. Kavanaugh, who was confirmed as a Supreme Court justice Saturday, but did nothing about them. According to the Washington Post, he “has chosen for the time being not to refer them to a judicial panel for investigation.”
Judge Karen LeCraft Henderson on the U.S. Court of Appeals for the D.C. Circuit (where Kavanaugh also serves as a judge) sent to Roberts a series of perjury complaints the court had received about Kavanaugh. The complaints began to coming in to the court about three weeks ago.
Henderson decided that the complaints were substantive enough that they should be sent to the Chief Justice and not to Kavanaugh’s fellow judges in the D.C. Circuit.
In a statement Saturday, Henderson said the complaints involved testimony given by Kavanaugh during his Senate confirmation hearings. She wrote:
“Under the law any person may file a misconduct complaint in the circuit in which the federal judge sits. 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 complaints from the D.C. Circuit were forwarded to Roberts at the same time that the controversy and scrutiny of Kavanaugh was intensifying during his Supreme Court nomination battle.
According to the Post:
“People familiar with the matter say the allegations made in the complaints — that Kavanaugh was dishonest and lacked judicial temperament during his Senate testimony — had already been widely discussed in the Senate and in the public realm. Roberts did not see an urgent need for them to be resolved by the judicial branch while he continued to review the incoming complaints, they said.”
“The situation is highly unusual, said legal experts and several people familiar with the matter. Never before has a Supreme Court nominee been poised to join the court while a fellow judge recommends that misconduct claims against that nominee warrant review.”
“Roberts’s decision not to immediately refer the cases to another appeals court has caused some concern in the legal community. Now that he has been confirmed, the details of the complaints may not become public and instead may be dismissed, legal experts say. Supreme Court justices are not subject to the misconduct rules governing these claims.”
“If Justice Roberts sits on the complaints, then they will reside in a kind of purgatory and will never be adjudicated,” said Stephen Gillers, a professor at New York University Law School and an expert on Supreme Court ethics. “This is not how the rules anticipated the process would work.”
What this means is that the Chief Justice of the United States decided to bury some substantive claims of perjury against a sitting federal judge. The motivation for this seems to have been simply that the federal judge had been nominated to serve on the Supreme Court. Roberts clearly did not want to do anything to hurt Kavanaugh’s chances of being confirmed.
The worst thing about this revelation by the Post is that the perjury complaints against Kavanaugh have been buried forever. He now sits on the Supreme Court and the only recourse will be for a Democratically elected House of Representatives to open hearings into the perjury claims. That in fact may happen, and eventually John Roberts may be called to account for his failure to act when he had the chance.