BRETT KAVANAUGH: The case for his recusal from partisan cases.

A retired lawyer, Larry Behrendt, writes in the Washington Post today about the judicial misconduct complaint he filed against Supreme Court Justice Brett Kavanaugh and why he believes its dismissal by the 10th Circuit Court of Appeals was the wrong decision.

Many filed complaints. Behrendt identified himself and explains in a simple and persuasive way.


He complained that Kavanaugh issued partisan attacks in his tirade against Democrats in testimony before the Senate Judiciary Committee, in violation of a rule against “inappropriately partisan” statements. The 10th Circuit — handed the case by Chief Justice John Roberts — said judicial conduct rules don’t apply to Supreme Court justices, a job held by Kavanaugh by the time the court considered the complaint.

Behrendt argues the 10th Circuit misread the rule in exempting Kavanaugh from censure for words he uttered while still a member of a U.S. Court of Appeals.


Granted, the 1980 act does not apply to the conduct of Supreme Court justices. But the act fails to say what to do when a judge engages in misconduct before becoming a Supreme Court justice. Here, the Judicial Council argued that Kavanaugh’s elevation to the Supreme Court was an “intervening event” under the 1980 act and its accompanying rules, and that “a misconduct proceeding can be concluded because of ‘intervening events.’ ” Unfortunately, the Judicial Council truncated the relevant rule, which allows for a complaint to be dismissed if “intervening events render some or all of the allegations moot or make remedial action impossible.” Kavanaugh’s elevation to the Supreme Court did not render moot the questionable behavior that helped win him that seat. Nor is remedial action impossible now that Judge Kavanaugh is Justice Kavanaugh. Brett Kavanaugh can still issue the kind of full apology he has avoided up until now, and he can recuse himself from highly partisan cases (those with Trump as a party, for example).

Expecting judiciousness from Bart O’Kavanaugh was proved an unlikely expectation long ago, back when he was crafting Ken Starr’s report on Bill Clinton’s affair with Monica Lewinsky.