Chief Justice John G. Roberts Jr. has received more than a dozen judicial misconduct complaints against Supreme Court nominee Brett M. Kavanaugh in recent weeks but has chosen for the time being not to refer them to a judicial panel for investigation.
A judge on the U.S. Court of Appeals for the D.C. Circuit — the court on which Kavanaugh serves — sent a string of complaints to Roberts starting three weeks ago, according to four people familiar with the matter.
That judge, Karen LeCraft Henderson, had dismissed other complaints against Kavanaugh as frivolous, but she concluded that some were substantive enough that they should not be handled by Kavanaugh’s fellow judges in the D.C. Circuit.
In a statement Saturday, Henderson acknowledged the complaints and said they centered on statements Kavanaugh made during his Senate confirmation hearings.
Under the law, “any person may file a misconduct complaint in the circuit in which the federal judge sits,” she said in the statement. “The complaints do not pertain to any conduct in which Judge Kavanaugh engaged as a judge. The complaints seek investigations only of the public statements he has made as a nominee to the Supreme Court of the United States.”
The complaints were handed over as scrutiny of Kavanaugh was intensifying amid allegations that he sexually assaulted a girl while the two were in high school. Kavanaugh has vehemently denied the allegations, as well as two other accusations of improper behavior.
People familiar with the matter say the allegations made in the complaints — that Kavanaugh was dishonest and lacked judicial temperament in his Senate testimony — had already been widely discussed in the Senate and in the public realm. Roberts did not see an urgent need for them to be resolved by the judicial branch while he continued to review the incoming complaints, they said.
The situation is highly unusual, legal experts and several people familiar with the matter said. Never before has a Supreme Court nominee been poised to join the court while a fellow judge recommends that a series of misconduct claims against that nominee warrant review.
Roberts’s decision not to immediately refer the cases to another appeals court has caused some concern in the legal community. If Kavanaugh is confirmed, legal experts say, the details of the misconduct complaints against him may not become public and instead will be dismissed. Supreme Court justices are not subject to the misconduct rules governing these claims.
“If Justice Roberts sits on the complaints then they will reside in a kind of purgatory and will never be adjudicated,” said Stephen Gillers, a professor at New York University Law School and an expert on Supreme Court ethics. “This is not how the rules anticipated the process would work.”
The Senate is expected to vote to confirm Kavanaugh on Saturday afternoon.
Even if Roberts had referred the complaints, it may have had no practical impact. Referring the case to another appeals court could make the complaints public. But, it typically takes months for a judicial panel to reach a decision on the veracity of such misconduct complaints, so these would not be resolved by the time the Senate votes on Kavanaugh’s nomination.
Roberts, an appointee of President George W. Bush, has for many years hired Kavanaugh clerks to work for him at the Supreme Court. Bush credits Kavanaugh in his book with helping him choose Roberts for the high court when Kavanaugh was a White House lawyer.
Normally misconduct complaints are confidential and do not become public until they are fully investigated and concluded.
Most of these complaints center on Kavanaugh’s answers about his work in the Bush administration, according to people familiar with them. They also accuse Kavanaugh of lacking judicial temperament in his partisan comments about Democrats, according to the people.
None of the complaints deal with the sexual assault allegations that imperiled Kavanaugh’s nomination, when Christine Blasey Ford came forward last month to say Kavanaugh sexually assaulted her when they were teenagers.
It is rare for a misconduct complaint against a judge to get as far as the chief justice. The chief judge of a circuit court normally reviews complaints against judges in their circuit. Most are dismissed because they lack a factual basis to make such a claim or are simply disagreeing with a judge’s decision.
Henderson, who was nominated to the bench by President George H.W. Bush, stepped in to review Kavanaugh’s complaints because Chief Judge Merrick Garland — who was nominated to the Supreme Court by President Barack Obama but was blocked by Senate Republicans — recused himself from the matter.
The way the complaints against Kavanaugh are being dealt with is unusual, because Henderson concluded the D.C. Circuit cannot properly handle the investigation, referring them to the chief justice. This is only done in exceptional circumstances, under the judiciary’s rules on misconduct.
Kavanaugh is a member of the D.C. Circuit’s judicial council, which normally rules on misconduct allegations in that court.