How Chief Justice Roberts helped Kavanaugh with those ethics complaints

    By Rebecca Pilar Buckwalter Poza Joine | 22 October 2018
    Daily Kos

    When it comes to judicial ethics, the appearance of bias is taken as seriously as bias. There’s a whole ethical canon in the Code of Conduct for United States Judges that makes that point. It’s entitled, daringly enough, “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities.” Conservatives seem to have skipped that section on masse.

    Brett Kavanaugh struggles with ethics in many arenas. But he’s hardly been alone in taking unethical measures to secure partisan bench appointments. Turns out, he’s not even alone on the Supreme Court when it comes to the willingness to act unethically to avoid exposure of other unethical behavior.

    The D.C. Circuit, Kavanaugh’s former professional haunting ground, sent at least 15 ethics complaints concerning his behavior up to the Supreme Court. From there, Chief Justice Roberts sent them on to the Tenth Circuit, to Chief Judge Timothy Tymkovich. We knew that Tymkovich was appointed by George W. Bush and shortlisted for SCOTUS by Trump, but we didn’t know just how much of a favor Roberts was doing Kavanaugh until now.

    Problem one, of course, was that Roberts waited until Kavanaugh had been seated on the Supreme Court to send the complaints to a circuit court. By doing so, he ensured Kavanaugh escaped any form of lower-court accountability. And there’s really no such thing as Supreme Court accountability.

    The second issue is how closely Kavanaugh is tied to Tymkovich. As Kristine Lucius of Leadership Conference notes, “John Roberts and Kavanaugh and Tymkovich are all … tied to the Bush administration and these are all men who certainly knew each other and now are in very powerful positions on the bench.” That would be bad enough. But Kavanaugh championed Tymkovich from nomination to confirmation. He influenced Tymkovich’s selection; he was the architect of the media campaign in advance of the good judge’s confirmation.

    There’s no part of the Kavanaugh-Roberts-Tymkovich tangle that passes muster under the Judicial Code of Conduct. Kavanaugh has violated, is violating, the most basic element of one of the core ethical canons.

    A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

    **

    Violating any part of the Canon of Judicial Ethics constitutes an impropriety. The mere appearance of a violation of the Canon constitutes an impropriety. This is part of why the supposition that a confirmation hearing should only be held to criminal law standards is so absurd: We expect more from judges, rightly so.

    Here’s the Code of Conduct commentary, or, rather, its guidance, on interpreting what “appearance of impropriety” means.

    An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.

    There’s another note that suggests interpreting the Canon’s guidance broadly (because listing every specific potential offense is ludicrous).

    Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.

    There’s additional commentary that bears on Kavanaugh’s outrage over being questioned.

    A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.

    What’s the conclusion? Despite Kavanaugh’s embarrassing debut—which was, by the way, hyper partisan—Roberts is covering for his myriad ethical violations, first in delaying consideration and then in selecting a friendly audience. When executed by federal judges, this kind of conservative wagon-circling is unethical in and of itself.

    A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.

    It’s beyond debate at this point that some conservative judges have begun acting as partisans. They’re ignoring Supreme Court precedent to further the GOP’s anti-abortion agenda (among others) and voting based on the parties involved, not the issues before them.

    Don’t even get me started about Neil Gorsuch campaigning with Sen. Mitch McConnell. Just refer back to the section on outside influences above.

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