In Court observers’ circles, the internet’s been abuzz the last few days about the news that Chief Justice Roberts referred a series of complaints against the Supreme Court’s newest Justice, Brett Kavanaugh, to the Chief Judge of the Tenth Circuit Court of appeals for consideration. The letter asks the Tenth Circuit to “accept the transfer and to exercise the powers of a judicial council with respect to the identified complains and any pending or new complaints relating to the same subject matter.”
Some commentators have reported this development as a major new turn in the Kavanaugh saga, noting that a preliminary investigation led to the dismissal of some complaints but the need for further investigation of others. Kavanaugh’s actions during the confirmation hearings did raise serious concerns in the legal community. More than 2400 law professors signed a letter urging the Senate not to confirm him because of his intemperate and partisan statements, and former Associate Justice John Paul Stevens took the highly unusual step of expressing public opposition to Kavanaugh.
Others, however, see this move as a mere fig leaf, noting that the Chief Judge who was placed in charge, Timothy Tymkovich, was himself on some of Donald Trump’s shortlists for Supreme Court nominees. The expectation is that Tymkovich, a far more sympathetic audience for Kavanaugh than his home circuit in the District of Columbia (a circuit whose chief judge is a guy named Merrick Garland), will quickly dispose of the complaints.
I argued just before Kavanaugh’s confirmation that Congress was ill equipped to investigate the welter of accusations against Kavanaugh and that a possible alternative route was for the Judicial Conference to become involved. The Conference is now the primary body responsible for managing accusations against lower federal court judges, including accusations of broadly criminal behavior that might rise to the level of impeachment and removal. However, what’s happening here is different in two critical ways. First, the inquiry is limited to specific complaints about Kavanaugh’s possibly disqualifying behavior in the hearings themselves. It doesn’t address his behavior toward Christine Blasey Ford and other women. Nor will it consider the troubling accusations that he lied about his past while under oath. And second, Kavanaugh is now a Supreme Court Justice, raising questions about the jurisdiction of the Judicial Conference to investigate the matter.
No one knows for sure what Chief Justice Roberts is seeking. However, some of his actions in the past suggest that, while he strongly embraces conservative ideology, he is concerned about the institutional position of the Court. He seems to understand that at this point, it’s the one national-level institution that Americans seem to trust not to act out of purely partisan motivations. He almost certainly wants to maintain this trust, even if by doing so, he really only hopes that a conservative Court’s dismantling of the remnants of the New Deal/Great Society order will be accepted as legitimate.
We have as a nation, however, reached a point where the institutional place of a struggle doesn’t necessarily lead to trust in the outcome. The quickness of some commentators to call out Tymkovich’s background and connections to the Right illustrate this plainly.
If Roberts is playing a long-term legitimacy game, this investigation should not be an exercise in quick box checking. An outcome within a few weeks of “Aha, we looked at it, and it seems that whatever happened didn’t violate any specific rules, and moreover, we can’t address Supreme Court Justices’ behaviors” will do little to restore trust in the Court and might focus unwelcome attention on the circuit courts as equally political actors.
What might be more reassuring? First, look to see what Tymkovich does. Does he appoint a panel of judges to conduct an investigation? Is the Administrative Office of the U.S. Courts asked to provide additional investigative capacity? Are efforts made to empower an investigative process, or do we see expressions of disempowerment and futility in light of the Supreme Court’s status?
The Kavanaugh kerfuffle, among other things, presses us to confront the Supreme Court and its Justices’ status as above and beyond any checking mechanism aside from impeachment and removal – a sanction never successfully exercised against a Justice. The Judicial Improvements Act of 2002 applies only to lower federal court judges, and unlike Congress, which does have the authority to discipline its members, the only tools Supreme Court Justices have to bring a wayward colleague into line are informal ones. This is a disturbing prospect to confront in a time when norm violation appears to be the order of the day.
So we will have to wait to see what happens. I expect that the Tenth Circuit’s process will produce only some finger wagging about the high degree of politicization of the confirmation process, though I’d be happy to be proven wrong.