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Judges Call Out Their Colleagues' Conflict of Interests in Handling Kavanaugh Misconduct Appeals

Fix the Court is praising Tenth Circuit Judges Mary Beck Briscoe and Carlos Lucero for dissenting and recusing, respectively, from their court’s dismissal of 20 Justice Kavanaugh misconduct appeals on the grounds that the appeals should have been heard by a different circuit’s Judicial Council or by the Judicial Conference misconduct committee.

Following Kavanaugh’s testimony before the Senate Judiciary Committee last September, 83 complaints of misconduct were filed in the D.C. Circuit, which Chief Justice Roberts then referred to the Tenth Circuit Judicial Council. On Dec. 18, the Council dismissed all of the complaints due to Kavanaugh’s elevation to the Supreme Court, whose justices are left out of the federal judicial misconduct statute. Twenty of the 83 complainants appealed their dismissals, and instead of asking for Chief Justice Roberts to reassign the appeal, the Tenth Circuit Council again ruled in this matter and today and announced it had dismissed all 20 appeals (six judges in favor, one against, one recused).

In her dissent from the order, Judge Briscoe wrote that the Council, “having reviewed and dismissed the complaints in the first instance, is disqualified from considering the current petitions for review. The proper procedure, in my view, is for a different body, namely the Judicial Conference Committee on Judicial Conduct and Disability, to consider the petitions for review.”

Judge Lucero added: “For the reasons stated by Judge Briscoe in her dissent, I consider myself disqualified in the matter and therefore recuse.”

“Judges Briscoe and Lucero have stuck their necks out in a way that is to be commended,” FTC’s Gabe Roth said. “Of course there is little recourse or reprimand for a Supreme Court justice accused of misconduct, so today’s result is not surprising. That said, it is critical for our nation’s leading jurists to recognize a conflict of interest when they see one and having a council rule on a case that they’ve previously judged would seem to be a textbook definition of such a conflict.”

The unsigned dismissal claims that because the instance of the Kavanaugh petitions is “exceptional,” the Council is not required to follow the traditional protocol and can re-rule on their initial dismissal.

It is likely that at least one of the appellants will petition the Judicial Conference Committee on Judicial Conduct and Disability in this matter.

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