Posted on March 19 2019
By now if you haven’t heard the 80+ ethics Complaints were tossed out by the Tenth Circuit Court Of Appeals.
In my opinion this is about timing and further explaintion should be sought by The Congress. Specifically asking SCOTUS Chief Justice Roberts the following series of questions:
- Please explain the reasoning and rationale that caused you to hold the Ethics Complaints filed by Officers of the Court concerning then SCOTUS nominee Judge Kavanaugh until after his confirmation.
- Was this decision to hold 80+complaints a unilateral decision or did you seek input from your Colleagues?
- Walk us through the process and protocols enacted by the SCOTUS to address potential improprieties of a newly confirmed Justice and/or Nominnee.
- What is the escalatory process for Ethics Complaints and how does the SCOTUS “process” comport with the District and Appeals Courts.
- Did you or any of your judicial colleagues receive any undo political pressure from the current Administration, Congress or any other surrogates advocating on behalf of the president or (then) nominee Kavanaugh
The bottom line is the SCOTUS Chief Justice Roberts held these complaints in abeyance until after Brett Kavanaugh’s confirmation. That’s not my opinion those are facts and affirmed by two Judicial Orders. We, the American people should know the reasoning and process. I’d argue we should hear directly from Chief Justice Roberts becuase the outward optics on this matter are terrible and without a fulsome “after action” report, none of us have a real or accurate accounting of why Roberts waited. We are owed a proper explanation of; the why, the who, the how, the when surrounding the “farming out” of some 83 Kavanaugh complaints to the Court in Colorado (cough Gorsuch) and ultimately the final determination by the Tenth Circuit Court Of Appeals.
For example in December of 2018 the Panel;s Order which effectively dismissed the 83 complaints relating to Judge Kavanaugh’s conduct, potential perjury (during his confirmation hearing) and strong concern that Kavanaugh might lack the prerequisite Judicial Temperament. The panel specifically cited lack of jurisdiction.
“Because it lacks jurisdiction to do so, the council makes no findings on the merits of the complaints,” Chief Judge Tymkovich’s order
What I found a bit vexing is in the December 2018 Order, Judge Tymkovich appeared to have acknowledged the need for clarification on jurisdiction and better communication about complaints, it’s this particular sentence:
“governing bodies with clear jurisdiction are aware of the complaints.”
Tymkovich went on to say:
”we request that the committee on Judicial Conduct and Disability of the Judicial Conference of the United States forward a copy of this order to any relevant congressional committees for their information.”
On March 15, 2018, the Tenth Circuit Court Of Appeals released this Order late last night (remember I’m on East Coast Time, so I think I saw the alert shortly before 8:35PM and I was just intellectually exhausted so I set this aside until today) of the 83 complaints against Kavanaugh, twenty one “filed a petition to review” accordingly the following Order states:
The Judicial Panel had four areas that contributed to the various constraints:
(1) the Judicial Council lacked authority to consider the complaints in the first instance;
(2) the Judicial Council members should disqualify themselves from considering the petitions for review;
(3) the Judicial Council had jurisdiction to decide the merits of the complaints because Justice Kavanaugh was still a circuit judge when he allegedly engaged in misconduct, and because the complaints were filed while Justice Kavanaugh was a circuit judge; and
(4) an intervening event did not occur because the allegations are not moot and remedial action remains possible.
And while I do not agree with the final disposition or the radtionale used to adjudicated these matters there’s very little remedy or opportunity to redress. The reality is the Judicial Council had/has zero jurisdiction over the Supreme Court and they further argued they do not have jurisdiction over Kavanaugh when he was a Circuit Court Judge. Those are the current rules and I’d argue those rules need to be discussed in a broader discussion of Judicial reform. But for now this is what we are stuck with.
In more simpler terms: a lower court has ZERO jurisdiction over SCOTUS and SCOTUS to date does not have any “ethical & judicial conduct” policies like the District and Appeals Courts have.
Essentially the 10thCCOAs has foreclosed on any current and future “ethics complaints” as it relates to a sitting Supreme Court Justice. As Chief Judge Timothy Tymkovich stated in his correspondence with the Judicial Council, they lacked jurisdiction:
“The lack of jurisdiction over Justice Kavanaugh precludes an investigative and fact-finding process, even over conduct allegedly committed while Justice Kavanaugh was a covered judge,”
The only glimmer of hope can be found in Judge Briscoe‘s dissent, pages 9 thru 14 of last Friday’s order , which reads in part:
having reviewed and dismissed the complaints in the first instance, is disqualified from considering the current petitions for review. The proper procedure, in my view, is for a different body, namely the Judicial Conference Committee on Judicial Conduct and Disability, to consider the petitions for review.
This link will take you to the 83 individual complaints made against (then) Nominee Brett Kavanaugh. Full disclosure some of the complaints are redacted. You might find this previous write up, found here, where I tried to explain the prerequisite judicial temperament
And while this is me being completely unprofessional by questioning everything related to the sequence of events concerning these Kavanaugh complaints, I am beyond disappointed. In fact I am disgusted. What part of Jurisprudence is lost on SCOTUS Chief Justice Roberts or that of the 10thCCOAs? Is this really the Judicial legacy they want? The horrid and indelible stain of doubt and serious concern over both the process and final determination?
I expected so much better than this ham-handed rigging (gasp yes on rare occasion I just unload on the judiciary and let my mask slip) of the Judicial process to “cover” and “shield one of our own”? The fact is Roberts held these complaints. And he has offered zero explanation. As you know I very rarely, if ever critique our Judicial System but self inflicted mishandling and errors such as this can and DO erode the trust and faith we have in our Judicial System.
Seriously do better Chief Justice Roberts, do better than this. Or have you just abdicated the SCOTUS to President Trump...thus inching us closer to a full on Reign of the Orange Mad King/president.
How do you expect that when serious CONSTITUTIONAL MATTERS, such as Trump et al fighting a subpoena, the emoluments (nods and prays my friends down in Richmond render s thoughtful order and memorandum later this week), Executive Over-reach, “Presidential Immunity” that we the American people can trust the highest court in our land will render a decision that isn’t prevented by undo political pressure.
ps yes I’m working on the Cohen warrants but between work and other responsibilities I might be a tad bit delayed...
🚨also spoiler 🚨 the Stormy Daniels thing actually did slow down the investigation
...until then here are the 7 documents
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