Should judges be able to avoid ethics probes with departure? Issue raised in Kavanaugh appeal

  • Print

Ethics compass

Federal judges have been able to shut down ethics investigations by retiring or, in the case of Brett M. Kavanaugh, winning confirmation to the U.S. Supreme Court. But one New York lawyer who is appealing dismissal of his ethics complaint against Kavanaugh, Jeremy Bates, argues that judges are wrongly concluding they have no authority to investigate, the Associated Press reports.

The National Law Journal and Bloomberg Big Law Business have previous coverage of Bates’ appeal to the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States.

The Judicial Council of the 10th U.S. Court of Appeals at Denver had tossed 83 ethics complaints against Kavanaugh, then rejected 20 appeals of that decision in March. The 10th Circuit Judicial Council found that the federal law governing misconduct complaints against federal judges does not apply to justices on the U.S. Supreme Court.

Many of the complaints against Kavanaugh had alleged that he made false statements under oath or made inappropriate partisan statements at confirmation hearings. At the hearing on his nomination to the Supreme Court, Kavanaugh had made the alleged partisan comments when denying allegations of sexual assault. He was a judge on the U.S. Court of Appeals for the District of Columbia Circuit before his elevation to the Supreme Court.

Bates argues that jurisdiction to decide ethics complaints should be governed by the situation at the time that ethics complaints are filed. Kavanaugh’s nomination to the Supreme Court was rushed through the Senate, which constitutes “legislative meddling in the judicial process,” he argues.

Bates also points to the retirements of Circuit Judges Maryanne Trump Barry and Alex Kozinski, which shut down ethics complaints against them. Both retained their pensions under rules that allow judges to keep their annual salary when they retire past age 65, with 15 years of service.

Four individuals had filed ethics complaints against Barry, who is the sister of President Donald Trump, based on a New York Times report on “dubious tax schemes” by Trump and his siblings. Kozinski’s chief judge had initiated an ethics complaint against Kozinski based on allegations in a Washington Post story about inappropriate sexual comments and behavior.

With the resignations, the public “sees a pattern of high-ranking federal judges (and their partisans) evading misconduct complaints by altering the jurisdictional facts,” Bates wrote. “The time-of-filing rule is designed to prevent such evasions and abuses.”

The AP spoke with a judicial ethics expert who saw a benefit to allowing judicial ethics probes to end with resignations.

“It’s understandable that people are unhappy when they see a resignation that leaves the matter really unresolved in many ways, or at least without an investigation that tells us what happened,” Arthur Hellman, a law professor at the University of Pittsburgh, told the AP. “But in many of the instances, the present system … does have an important virtue in that it gets judges in whom the public has lost confidence off the bench.”

Give us feedback, share a story tip or update, or report an error.