Jurisprudence

Letting Brett Kavanaugh Off the Hook Sets a Dangerous Precedent

Ethics rules don’t apply to Supreme Court nominees as long as they get confirmed, a panel of judges concluded.

Brett Kavanaugh visibly yelling during his Senate confirmation hearing on Sept. 27 in Washington.
Brett Kavanaugh during his Senate confirmation hearing on Sept. 27 in Washington.
Michael Reynolds - Pool/Getty Images

The televised scene last September was indelible. A federal judge, scrapping for a seat on the Supreme Court, plays the victim card perfectly. In sworn testimony before the Senate Judiciary Committee, he unleashes a premeditated, bitter condemnation charging certain senators with mounting a secret, well-financed conspiracy to ruin him as revenge on behalf of their party’s defeated presidential candidate.

Some of us saw in that moment an egregious violation of the Code of Conduct for United States Judges’ rule against “inappropriately partisan statements” and filed official complaints. Now, it appears, congratulations are in order: Justice Brett Kavanaugh is home free. And so too is any future Supreme Court nominee accused of misconduct.

Last week, the federal court system’s highest arbiter of misconduct complaints, a seven-judge panel—all Republican appointees answerable to Chief Justice John Roberts—washed its hands of the Kavanaugh affair by rejecting nine final appeals.* One of them was mine. The judges ruled that because Supreme Court justices aren’t subject to any code of ethics, the entire body of judicial misconduct law, rules, and precedent for lower-court judges “unequivocally preclude review of the merits” of the issue.

Neither Congress, the Code of Conduct, the accompanying rules, nor any official commentary envisioned a Supreme Court nominee violating the code during confirmation. So the panel was in virgin legal territory. Clearly, it wanted no part in characterizing Kavanaugh’s actual conduct.

By focusing on the man instead of the conduct, the panel certainly kept Kavanaugh’s standing unscathed. But in so doing, they left high standards of conduct and integrity for the entire judiciary, not to mention public confidence in the courts, by the wayside.

The rules allow an errant judge to “self-correct” by apologizing. Kavanaugh did not do so, and it seems unlikely that the chief justice urged him to do so, as perhaps he should have. Once a judge accused of misconduct resigns a lower-court seat, as Kavanaugh did to advance to the Supreme Court, “remedial action” against the judge is barred. The Rules for Judicial-Conduct Proceedings, however, offer one important option aimed at addressing questions of integrity: For a judge covered by the code, as Kavanaugh was last September, but who subsequently resigns, supervisory judges can end the complaint proceeding but state publicly that misconduct occurred. The panel simply ignored this option without explanation. The rules say judges handling complaints “have ample authority” to address issues that affect the entire court system. This panel chose not to.

To those of us who see a dangerous erosion of judges’ independence from raw politics, the ruling’s implications are disturbing. It invites every future Supreme Court nominee to follow the Kavanaugh model: Play to senators’ constituents, preferably on TV, to secure key confirmation votes, even if your language violates rules that demand strict impartiality. All a nominee must do to enter the promised land of ethics immunity is win confirmation. Moreover, if complaints are filed during the confirmation process, judges who manage these grievances have ample means, whether by apathy or design, to slow the machinery for days or weeks. The moment a justice is confirmed and sworn in, the complaints are moot. This is exactly what transpired in the matter of Brett Kavanaugh. In effect, the ruling creates an exception for Supreme Court nominees.

It would have been simple and effective for the panel to issue a diplomatic statement about Kavanaugh’s language. With that, all federal judges would gain clarity on the boundaries of partisan statements and the public would see that courts take judicial bias seriously. According to the 2006 Breyer Committee Report, which analyzed federal misconduct proceedings, guidance for judges and trust-building for the public are the goals of any high-visibility misconduct case. Saving a judge from embarrassment is not one of the goals.

There is even precedent for calling out misconduct while dropping a case because a judge resigns. In 2014, a review panel made up of some of the same judges, ordered the U.S. Court of Appeals for the 9th Circuit to reveal its unpublished finding of misconduct against a judge who had sent racist emails. The judge resigned, so discipline was no longer possible. Even so, the panel ruled that publishing a finding of misconduct was necessary “to maintain public confidence.”

Confidence-building has been absent in the Kavanaugh case. Before the ruling, two of the seven judges were asked to disqualify themselves. One, like Kavanaugh, is an alumnus of Georgetown Prep, the elite school whose culture came under scrutiny during the Senate confirmation hearings. The other is the father of a Republican congresswoman who ardently supports Kavanaugh. Neither recused themselves.

If the law and rules placed Kavanaugh’s partisan outburst beyond review “unequivocally,” as the federal panel wrote, why did Roberts bother to transfer the Kavanaugh complaints to the U.S. Court of Appeals for the 10th Circuit for review? He acted four days after presiding at Kavanaugh’s swearing-in, which delivered the new justice to ethics-immune status. The answer is obvious: The law, rules, and precedent were never “unequivocal.”

Justice Stephen Breyer’s 2006 report found that of all the misconduct proceedings analyzed, those considered “high-visibility” were frequently mishandled. The report warned that misconduct rulings must avoid “institutional favoritism”—a culture where judges take care of their own. Kavanaugh knew that culture and remained studiously silent about his Senate performance after he was sworn in. He might come to regret that. Just as Justice Ruth Bader Ginsburg apologized after criticizing a presidential candidate in 2016, Kavanaugh could have issued a public statement acknowledging that, upon reflection, his words had not fully respected the ethics code he was bound by at the time. Had he vowed to take the lesson to heart, it would have been an act of political healing for the nation.

Instead, we watched as a judge who revealed deep political bias just months earlier took part in the gerrymandering and census cases before the Supreme Court, both contentious disputes vital to the future potency of each major political party. The ethics code for lower courts insists that judges disqualify themselves when their impartiality “might reasonably be questioned.” But, of course, that doesn’t apply to Supreme Court justices.

A generation from now, Americans will ask how some of our most prominent federal judges became instruments of partisan interests and weapons of political warfare. We already have at least one answer: The judges themselves allowed it. Too many were inclined to protect their colleagues from embarrassment rather than forcefully defend the judicial code of ethics.

Correction, Aug. 7, 2019: This piece originally misstated the number of judges on the panel that rejected the appeals. It had seven judges, not nine.