Brett Kavanaugh still has to deal with Congress after dodging 83 misconduct complaints


The House Judiciary Committee is seeking tens of thousands of documents from Kavanaugh's time in the George W. Bush White House.

He got confirmed in spite of multiple credible sexual assault allegations, and he skated past scores of complaints about his judicial temperament, but Supreme Court Justice Brett Kavanaugh isn't in the clear. Now he has to contend with the House Judiciary Committee.

That committee just asked the National Archives for all of Kavanaugh's records from when he worked in the White House from 2001-2006. Only a small fraction of those documents were released to the Senate Judiciary Committee during Kavanaugh's confirmation hearing. First, Sen. Chuck Grassley (R-IA), that committee's chair, only asked for records from 2001-2003. Then, before the Judiciary Committee even saw the documents, they were reviewed by a private Republican attorney who withheld tens of thousands of documents.

Though conservatives are framing the document request as harassment of Kavanaugh, the Judiciary Committee has two separate, equally important, reasons for needing to see the documents.

The first has to do with the fact that Kavanaugh arguably misled senators during his 2006 confirmation to be a federal appellate judge. At that time, Democrats asked Kavanaugh whether he'd been involved in shaping Bush's policy on the torture of detainees. Kavanaugh testified that he had never been involved in those discussions, but one year later, the Washington Post reported that Kavanaugh had been involved in a discussion over just that when at the White House Counsel's office. During Kavanaugh's Supreme Court confirmation hearings, Democrats indicated they continued to be concerned about this issue and other things that occurred during Kavanaugh's time in the White House.

Next, there's the fact that Kavanaugh just permanently dodged 83 misconduct complaints against him. Most of those stem from his conduct during his 2018 confirmation hearings, when he launched into a partisan screed about the Clintons and was repeatedly belligerent to the panel.

In December 2018, the 10th Circuit Court of Appeals, which was charged with investigating the scores of misconduct claims, dismissed the complaints without taking any action. That's because while Kavanaugh was still a federal judge when the complaints were made, he was a Supreme Court Justice when the 10th Circuit received the complaints from Chief Justice John Roberts, who helpfully sat on them until Kavanaugh was confirmed. Since judicial ethics rules don't apply to Supreme Court justices, Kavanaugh escaped any consequences.

That ruling was just upheld by the nine judges — all Republicans answerable to Roberts — who sit on the Committee on Judicial Conduct and Disability. They dismissed nine final appeals and ruled that Kavanaugh automatically became immune to all complaints the day he was confirmed, even though those complaints pre-dated his confirmation.

That's because there are no codes of judicial conduct that apply to Supreme Court justices, and that's what Nadler and the Judiciary Committee want to fix. The committee is considering legislation "promoting ethics, accountability, and transparency in the federal courts" and is contemplating creating a code of conduct that will apply to Supreme Court Justices. Nadler's letter also notes that the committee is considering legislation about "the circumstances in which Justices or judges must disqualify themselves from cases." Knowing what things Kavanaugh worked on for the Bush White House is critical to understanding if he needs to recuse himself from certain cases if legislation to that effect were to pass.

Hopefully, the Judiciary Committee will receive those documents. Otherwise, the lawlessness with which Kavanaugh behaved in the past and the fact there is no recourse going forward is depressingly similar to that of the man who gave him the job, Trump.

Published with permission of The American Independent Foundation.