Colorado Judges Punt on Justice Brett Kavanaugh Ethics Complaints

Tenth Circuit Chief Judge Timothy Tykmkovich and newly minted U.S. Supreme Court Justice Brett Kavanaugh during his Senate confirmation hearing.
Federalist Society/YouTube file photo
Tenth Circuit Chief Judge Timothy Tykmkovich and newly minted U.S. Supreme Court Justice Brett Kavanaugh during his Senate confirmation hearing.
In October, after U.S. Supreme Court nominee Brett Kavanaugh survived a contentious confirmation hearing that didn't touch on sexual-misconduct complaints made by Boulder's Deborah Ramirez, another Colorado connection to the controversy arose by way of Chief Justice John Roberts's assignment of ethics complaints about his newly minted colleague to the Tenth U.S. Circuit Court of Appeals in Denver.

The person Roberts put in charge of the inquiry was Denver-based Tenth Circuit Court Chief Judge Timothy Tymkovich, who'd been on President Donald Trump's short list of candidates for the Supreme Court position eventually filled by Kavanaugh. But Tymkovich and the Judicial Council of the Tenth Circuit, which includes three other judges on the circuit and district judges from Utah, Wyoming and Oklahoma, have declined to weigh in on the complaints, determining that they no longer have jurisdiction over them now that Kavanaugh has been confirmed.

The order is accessible below, along with a link to 83 complaints that vary in style but radiate consistent concern over the kind of man just given a lifetime appointment to the highest court in the land.

Also accessible is a document in which Tymkovich rejects a request that he recuse himself in the case because, as he writes, "while working in the White House in 2003, Justice Kavanaugh advocated for my confirmation."

The source of the allegations "appears to be documents provided to the Senate Judiciary Committee during Judge Kavanaugh's Supreme Court confirmation hearing," Tymkovich continues. "A search of those documents reveals only that Justice Kavanaugh sent an email shortly after I was confirmed proposing a press release about numerous judicial nominees, one of whom was me. I am otherwise unaware that Justice Kavanaugh had any participation in my nomination or confirmation."

A screen capture of Timothy Tymkovich during a 2014 speech.
As a result, Tymkovich concludes, "I have determined that the limited involvement described above does not warrant disqualification."

By shrugging off this matter, Tymkovich was free to join the rest of the panel in shouldering the task given them by Roberts, to study the complaints. The names of the petitioners are redacted in the documents, but what remains still gives a good sense about the different kinds of people objecting to Kavanaugh.

One complaint lists the following issues with Kavanaugh's testimony before the Senate Judiciary Committee:
He accused Democrats of an "orchestrated political hit" against him.

He claimed that the Democrats were "lying in wait" with [accuser Christine Blasey] Ford's claim that he attacked her when they were teens until it was nearly time for his confirmation vote.

He said that the allegations of sexual misconduct are "revenge on behalf of the Clintons...and millions of dollars in money from outside left-wing opposition groups."

Kavanaugh shouted at Democratic senators during his hearing.

He continuously interrupted female senators.

He dodged questions about old high school yearbook entries loaded with innuendo about sexual conquests.

He threatened Democrats — "What goes around comes around."
The author added, "As a law professor for twenty-plus years, I taught professional responsibility. If Judge Kavanuagh is not disciplined for half truths, lies and 'inappropriate partisan' statements, it will send a clear message that legal ethics are situational."

Another complaint echoes many of the points above before concluding: "We understand that the evaluation of these charges is now in your hands. We urge you to make your findings public to assure us that the judiciary is fair and unbiased."

The council has indeed shared this material and more. But its members determined that the Judicial Conduct and Disability Act, which "provides procedures for handling misconduct complaints," is no longer valid because Kavanaugh has already been voted onto the court. Here's a key passage:

The allegations contained in the complaints are serious, but the Judicial Council is obligated to adhere to the 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. ... Because it lacks jurisdiction to do so, the Council makes no findings on the merits of the complaints.
Still, the order leaves the door for additional scrutiny open, if just a crack: The councilmembers note that "as with any misconduct complaint...any complainant has a right to seek review of this Order by filing a petition for review by the Judicial Council. ... Any such petition must be filed with the Office of the Circuit Executive within 42 days after the date of this Order."

In a practical sense, however, the last potential obstacle between Kavanaugh and decades on the U.S. Supreme Court has been removed. And that undoubtedly displeases at least 83 people.

Click to access the Judicial Council of the Tenth Circuit's order in regard to Brett Kavanaugh and the link to the Kavanaugh complaints.