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Reports about judicial misconduct complaints against now-Justice Brett Kavanaugh highlight once more the endemic confusion about the administration of the federal court system.
The bottom line is that the complaints won’t proceed because Supreme Court justices are not subject to the federal court’s disciplinary mechanism. Here’s an explanation:
A 1980 law, the Judicial Conduct and Disability Act, allows anyone to file “a written complaint” alleging judicial misconduct or performance-degrading disability. The Act defines misconduct as “conduct prejudicial to the effective and expeditious administration of the business of the courts.”
The complaint goes to the clerk of the court of appeals in the regional federal judicial circuit that includes the court of the judge who is the object of the complaint.[i] The Act tells the clerk, upon receipt of a complaint, to transmit it to the circuit chief judge. If the chief judge, for one reason or another, has recused himself or herself from a particular complaint or from all complaints, the complaint goes to the next most senior judge in active service.
Recently, the clerk of the court of appeals for the District of Columbia Circuit, on which now-Justice Kavanaugh served before his elevation, received at least fifteen complaints about him, probably related to his testimony at his court of appeals confirmation hearing in 2006 or at his Supreme Court hearing. The chief judge of the court of appeals, Merrick Garland (President Obama’s unsuccessful Supreme Court nominee) recused himself from the matter, so the complaints went to Judge Karen Henderson.
Judge Henderson, in turn, invoked Rule 26 of the federal courts’ Rules for Judicial-Conduct and Judicial-Disability Proceedings, which explains how courts should process complaints under the Act. Rule 26 authorizes a chief circuit judge, “[i]n exceptional circumstances,” to ask the chief justice to transfer a complaint to another circuit’s judicial council, the all-judge statutory body in each …