We are stuck with Brett Kavanaugh for the rest of his life. This is a fact, despite Christine Blasey Ford’s harrowing testimony at his nomination hearings in September, and despite the 83 judicial misconduct complaints filed against him in the wake of that testimony. Those complaints were dismissed two weeks ago, but one of the complainants, Larry Behrendt, wrote an op-ed for The Washington Post arguing against that dismissal.
Behrendt, who practiced law for 30 years in New York and California before retiring, writes that Kavanaugh’s testimony on September 27 spurred him to file his complaint (emphasis mine):
I’m a retired attorney who is on no one’s short list to serve on the Supreme Court. But I listened on Sept. 27 while Kavanaugh peppered two hours of Senate testimony with attacks against people and groups he associated with Democrats. Kavanaugh alleged (without factual basis) that he was the victim of a vast, secret, left-wing cabal, masterminded by senators such as Dianne Feinstein (D-Calif.) and motivated by “revenge on behalf of the Clintons.” I was shocked to hear a Supreme Court nominee carry on like a crazed conspiracy theorist.
In fact, Behrendt writes, Kavanaugh’s behavior actually violated the Judicial Conduct and Disability Act of 1980, which prohibits federal judges from making “inappropriately partisan statements.” Obviously, claiming the Democrats had conspired against him to avenge a fallen compatriot sounds a teeny bit partisan, hence why Behrendt filed his complaint.
Unfortunately, Behrendt’s complaint got sent all the way to the Judicial Council of the 10th Circuit in Denver, which didn’t look at it until December 18. And since Kavanaugh had already been confirmed to the Supreme Court by a Republican Senate by then, the Judicial Conduct Act of 1980 didn’t apply to him, though it might have, had a court looked at it right when Behrendt filed it:
Evidently a circuit judge nominated to the Supreme Court can be held responsible for his partisan misconduct before the Senate, so long as the Senate fails to confirm the nominee. But if the nominee wins the approval of a partisan Senate, then his inappropriate partisanship is excused.
“This reasoning doesn’t make sense to me,” Behrendt adds. “It’s like saying we can prosecute a safecracker only if the safe proved to be empty.”
The 10th Circuit Judicial Council was long expected to dismiss the complaints, since the Supreme Court isn’t in its jurisdiction, and Chief Justice John Roberts—who was the first to receive the complaints, during Kavanaugh’s confirmation hearings—didn’t immediately refer them to the appeals court. You can read redacted copies of the complaints here.