I’m posting this because the headlines about the “dismissal” of complaints against Brett Kavanaugh are very, very misleading. The headlines should be something like this: "Judicial Council Says It Does Not Have Jurisdiction to Rule on Complaints Against Kavanaugh."
Most news outlets are simply declaring in their headlines that the complaints have been “dismissed” – this makes it sound like the complaints do not have merit. But that’s not the case at all. In fact the Judge who heads up the Judicial Council, Timothy Tymkovich, has explicitly characterized the complaints as serious – the real issue here is that Kavanaugh has “graduated” to the Supreme Court and, thus, the Judicial Council no longer has jurisdiction over him. From the article:
Tenth US Circuit Court of Appeals Chief Judge Timothy Tymkovich, who wrote the council’s order, noted that the complaints alleged that Kavanaugh had made false statements in his September hearings, as well as at earlier nomination proceedings before the Senate Judiciary Committee, in 2004 and 2006 when he was up for an appeals court seat on the District of Columbia Circuit.
"The allegations contained in the complaints are serious," Tymkovich wrote, “but the Judicial Council is obligated to adhere to the [Judicial Conduct and Disability Act]. Lacking statutory authority to do anything more, the complaints must be dismissed because an intervening event – Justice Kavanaugh’s confirmation to the Supreme Court – has made the complaints no longer appropriate for consideration under the Act.”
That resolution was not a surprise. Legal experts had earlier observed that the 1980 law covering judicial misconduct excludes the nine Supreme Court justices.
It’s infuriating that CNN goes on to say this:
…the action closes out one more chapter of the confirmation hearings that consumed the nation’s capital for several weeks and reverberated in November’s midterm elections.
CNN is strongly implying that the “dismissal” of the complaints means Kavanaugh is now scot-free. Chief Justice Roberts referred the complaints to the Judicial Council in the first place – and he did that knowing full well that if Kavanaugh were confirmed, that referral would become a moot point. Now Roberts has the option of referring the complaints elsewhere, e.g., Congress. Weather or not he does that remains to be seen, but an important first step in that direction has already occurred. The redacted complaints are now available at this link – there are 83 of them!
Congressional committees (e.g., the House Judiciary Committee) will have access to the unredacted versions of the complaints and can now (even without a formal referral from Roberts) take actions such as conducting investigations to validate or discredit the complaints – or even to initiate impeachment proceedings against Kavanaugh if the evidence warrants it (impeachments of SCOTUS members are rare, but have occurred). It will be up to Congress.
The most important point is that the “dismissal” of the complaints has absolutely no bearing on whether or not they have merit – it only has to do with a jurisdictional issue. However, I’ll wager that right-wing news sites and perhaps even our tweeter-in-chief will claim this “proves” that the complaints were all bogus and so “that’s the end of that.” My fear is that the public will just accept this conclusion.
Right now, Kavanaugh must be feeling like a bank robber in a 1930’s movie who has made it across state lines. But, you know, justice always seems to catch up with those 1930’s movie bad guys and it may yet with Kavanaugh as well.
CORRECTION: A shoutout and thank you to @GracieC who pointed out that our Chief Justice is Roberts, not Kennedy as I had incorrectly stated. I’ve made the correction above.
