After a contentious confirmation hearing that didn't touch on sexual-misconduct complaints made by Boulder's Deborah Ramirez, Brett Kavanaugh was confirmed as the newest justice on the U.S. Supreme Court. But this particular story isn't over yet, and the reason involves yet another Colorado connection to the controversy.
Specifically, U.S. Supreme Court Justice John Roberts (no relation) has assigned ethics complaints against Kavanaugh tied to his Senate Judiciary Committee testimony to the 10th U.S. Circuit Court of Appeals in Denver. The person Roberts put in charge of the inquiry is Denver-based 10th 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. (See the letter from Roberts to Tymkovich below.)
As noted by PBS, the person who typically handles ethics complaints of this sort is Merrick Garland, chief judge of the D.C. Circuit. But because Garland was nominated by President Barack Obama to step onto the Supreme Court after the 2016 death of Antonin Scalia, then was denied a hearing by Senate Republicans (Colorado's Neil Gorsuch ultimately won the gig), he passed on the task.
Enter Tymkovich, who was sworn in as the 10th Circuit's chief judge in September 2015 — and the release issued by the court at that time serves as a mini-bio.
A third-generation Coloradan, Tymkovich was appointed to the 10th Circuit by President George W. Bush in 2003. He earned a political science degree from Colorado College in 1979 before heading to the University of Colorado law school, from which he graduated in 1982.
He went on to clerk for William Erickson, the chief justice of the Colorado Supreme Court, before going into private practice. But he returned to public service after being named Colorado's solicitor general in 1991. Five years later, he headed into the private sector again before being anointed by Bush.
After Tymkovich turned up on Trump's roster of potential Supreme Court nominees, his record was given the once-over by the liberal-leaning advocacy group Alliance for Justice, which didn't offer him a ringing endorsement. Excerpts from the AFJ analysis:
Tymkovich’s notable opinions on the Tenth Circuit include Hobby Lobby v. Sebelius, holding that for-profit corporations are persons exercising religion freedom for purposes of the Religious Freedom Restoration Act, and allowing them to assert religious objections to laws that protect their employees’ legal rights.
Tymkovich has advanced a number of controversial positions throughout his career. He argued that Colorado could properly deny Medicaid funding to poor women for abortions to terminate pregnancies that resulted from rape or incest. He asserted that local ordinances that prohibited discrimination on the basis of sexual orientation conferred "special rights" on LGBTQ people. He opposed Denver’s efforts to restrict assault weapons.
Tymkovich did not simply take these positions as a zealous advocate for his clients. Without regard to the waste of state resources, he pressed a Medicaid funding case all the way to the Supreme Court, where his petition for review was unanimously rejected, in the face of clear precedent and unanimous rejection of his position by lower courts. In response to the Supreme Court ruling in Romer v. Evans that rejected his support of an anti-LGBTQ Colorado law, Tymkovich penned a one-sided law-review article in which he made clear that he agreed with the state’s position. He and his co-authors concluded the article by claiming that the decision in Romer "is merely another example of ad hoc, activist jurisprudence without constitutional mooring. If the test of an independent judiciary lies in its response to difficult political decisions, Romer is cause for great uneasiness about the health of self-government."
Given these positions, it's unlikely that Tymkovich will bring the hammer down on Kavanaugh — and there's some debate about whether that would even be a possibility. University of Pittsburgh ethics professor Arthur Hellman told PBS that the 10th Circuit judges may conclude "that intervening events have rendered the allegations moot or make remedial action impossible."
Taking another position was New York University ethicist Stephen Gillers, who told PBS that the complaints "allege misconduct that occurred while Kavanaugh was on the D.C. Circuit and subject to the Code of Conduct for U.S. judges. Any violation of the code does not disappear because he is now on another federal court."
Either way, Colorado and Kavanaugh are coming together again in a manner that probably won't make the new Supreme particularly happy.
Click to read John Roberts's letter to Chief Judge Timothy Tymkovich.
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