Adam Ares, Associate Member, University of Cincinnati Law Review
The nomination of Justice Brett Kavanaugh to the Supreme Court, following the departure of Justice Anthony Kennedy, has become the most controversial nomination in the history of the Court. Recently, questions rose regarding whether Justice Kavanaugh had the proper demeanor and commitment to impartiality that are necessary to serve the highest court in the country. The nomination also focused national attention on the type of conduct we expect from our judges. The conduct of federal judges is governed by (1) the Code of Conduct for United States Judges[1]; (2) the Judicial Conduct and Disability Act[2]; and (3) the Rules for Judicial-Conduct and Judicial-Disability[3].This article will outline the basic expectations and rules governing federal judges, and detail specifically how these rules apply to the questions surrounding Justicee Kavanaugh’s confirmation to the Supreme Court.
Federal judges are bound by the Code of Conduct for United States Judges (“the Code”)[4] and the rules set forth in the Judicial Conduct and Disability Act of 1980 (“the Act”)[5]. The Code “includes the ethical canons that apply to federal judges and provides guidance on their performance of official duties and engagement in a variety of outside activities.”[6] The Code consists of five canons. Specifically, Canon 1 provides that “[a] judge should uphold the integrity and independence of the judiciary[,]” while Canon 3 states that “[a] judge should perform the duties of the office fairly, impartially and diligently[.]”[7] The Judicial Conduct and Disability Act furthered these principles by allowing any person to file a complaint against a federal judge and outlines the guidelines for the inquiry and discipline of federal judges.[8]
Later, the Rules for Judicial-Conduct and Judicial-Disability Proceedings (“the Rules”) were enacted to provide further guidance on the “substantive and procedural” aspects of the provisions set forth in the Act.[9] The purpose of the Rules is to “determine whether a covered judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts or is unable to discharge the duties of office because of mental or physical disability.”[10] The Rules also allow for the filing of a complaint by any person or by the Chief Judge of a circuit court.[11] The complaint must state the alleged misconduct committed by the covered judge.[12] The Rules define “misconduct” in a number of ways, including “treating litigants, attorneys, or others in a demonstrably egregious and hostile manner”[13] and “engaging in partisan political activity or making inappropriately partisan statements[.]”[14] However, both the Code[15] and the Rules apply to all federal judges except for the justices on the United States Supreme Court.[16]
The Supreme Court is only subject to the standards of conduct provided in the United States Constitution. The Constitution states that Supreme Court justices shall “hold their Offices during good Behaviour[.]”[17] Additionally, Article II, Section 4 of the Constitution provides that “[t]he President, Vice President and all other civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”[18] However, the Constitution does not provide the definition of “good behavior” or “misdemeanors” in this context. Although the Constitution may allow for impeachment of federal judges, in practice impeachment of judges is rare. Only fifteen federal judges have been impeached in the history of the United States.[19] The only Supreme Court justice to be impeached was Justice Samuel Chase in 1804 on charges of “arbitrary and oppressive” conduct of trials.[20] He was later acquitted by the United States Senate in 1805.[21]
Although Supreme Court justices have not been accused of misconduct often, critics believe that the Supreme Court should be held to a code of ethics similar to those followed by all other federal judges.[22] The Constitution provides very little guidance for the behavior of justices on the Court, while the Code and the Rules provides very detailed expectations of federal judges. In 2013, a bill was introduced titled the Supreme Court Ethics Act of 2013 that would require the Court to adopt a code of ethics.[23] However, Chief Justice John Roberts has continually resisted the adoption of any such code, and stated that the Court “consults” the Code of Conduct for United States Judges.[24] The Supreme Court is the highest court in the United States, which makes it alarming that it is the only court to not be subject to a mandatory ethics code.
Justice Kavanaugh was a sitting judge on the D.C. Circuit. Therefore, he was subject to the Code of Conduct for United States Judges and the Rules for Judicial Conduct. A strong case can be made that then-Judge Kavanaugh violated Canons 1 and 3 of the Code and committed misconduct under the Rules during the hearing last Thursday, both by his actions towards Senate democrats and in his partisan statements[25]. Under the Rules, misconduct includes treating others in “a demonstrably and hostile manner” and “making inappropriately partisan statements.” Then-Judge Kavanaugh seemed to commit both acts of misconduct during his latest confirmation hearing. He was visibly emotional and angry throughout the hearing, and frequently treated democratic senators in a disrespectful manner. His statements regarding an alleged democratic conspiracy to derail his nomination has become the primary source of concern for those who still believe in an impartial, objective Supreme Court. Then-Judge Kavanaugh’s statements raise the issue of whether he can serve in an impartial capacity on the Court, in accordance with the requirements outlined in the Code.[26] It merits asking whether such an individual can look at cases involving democrats without prejudice. Furthermore, does appointing an openly partisan justice to the Court diminish the Court’s reputation as an apolitical body? These are questions that Congress and the country is going to have to face as Justice Kavanaugh begins his tenure on the bench.
[1] Code of conduct for united states judges (united states courts 2014), http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges.
[2] Judicial Conduct & Disability, united states courts, http://www.uscourts.gov/judges-judgeships/judicial-conduct-disability (last visited Oct. 4, 2018).
[3] U.S.C.S. Jud. Con. And Disab. Proc. 1.
[4] Code of conduct, supra note.
[5] Judicial Conduct & Disability, united states courts, supra note.
[6] Code of Conduct, supra note.
[7] Id.
[8] 28 U.S.C. § 351-364.
[9] Judicial Conduct & Disability, United States Courts, supra note.
[10] U.S.C.S. Jud. Con. And Disab. Proc. 1.
[11] Id. at Proc. 5, 6.
[12] Id. at Proc. 6(b).
[13] Id. at Proc. 3(h)(1)(D).
[14] Id. at Proc. 3(h)(1)(E).
[15] Code of Conduct, supra note 1.
[16] U.S.C.S. Jud. Con. And Disab. Proc. 4.
[17] U.S. Const. art. III, § 1.
[18] Id. at art. II, § 4.
[19]Impeachments of Federal Judges, Federal Judicial Center, https://www.fjc.gov/history/judges/impeachments-federal-judges (last visited Oct. 4, 2018).
[20] Id.
[21] Id.
[22] Charles Geyh and Stephen Gillers, SCOTUS Needs a Code of Ethics, Politico (Aug. 8, 2013, 5:20 AM), https://www.politico.com/story/2013/08/the-supreme-court-needs-a-code-of-ethics-095301.
[23] Id.
[24] Id.
[25] A letter signed by 2,400+ law professors was presented to the United States Senate on Oct. 4 stating that Judge Kavanaugh should not be confirmed for the Supreme Court. The letter stated that during the Senate hearings on Sept. 27 “Judge Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly elevation to the highest court of this land.” The Senate Should Not Confirm Kavanaugh, the new york times (Oct. 3, 2018), https://www.nytimes.com/interactive/2018/10/03/opinion/kavanaugh-law-professors-letter.html?rref=collection%2Fsectioncollection%2Fopinion&action=click&contentCollection=opinion®ion=stream&module=stream_unit&version=latest&contentPlacement=8&pgtype=sectionfront).
[26] Judge Kavanaugh stated in a recent opinion article that he would remain an impartial justice on the Court, and that he “do[es] not decide cases based on personal or policy preferences.” Brett M. Kavanaugh, I Am an Independent, Impartial Judge, wall street journal (Oct. 4, 2018 7:30 PM), https://www.wsj.com/articles/i-am-an-independent-impartial-judge-1538695822?emailToken=2657c8737c65f31390272894938100b7d2vDN0SJafgKCavpZQmrLQk46efSoNHeLiWpI6funsYmiXEB13wcDtb4OcSX5s+xidGj0T5Z459cHvQIWF7xlQ%3D%3D&reflink=article_copyURL_share.
