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Yesterday we learned that Chief Justice John Roberts sent a file of judicial misconduct complaints to Timothy Tymkovich, Chief Judge of the 10th Circuit Judicial Conference, a disciplinary offshoot of the 10th District Circuit Court that is designed to review and issue rulings with respect to complaints filed against Federal Judges regarding their conduct. All Circuit Courts and other Federal Court branches have this “JC” function. Here’s a PDF of the rules that govern the Conference, and here’s the scope of their mandate:

These Rules govern proceedings under the Judicial Conduct and Disability Act (the Act), 28 U.S.C. §§ 351–364, 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.

Tymkovich is a die-hard, homophobic conservative, having argued and lost, as CO Solicitor General, the landmark LGBT case, Romer v Evans, in which he defended CO’s anti-LGBT Constitutional Amendment that denied 14th Amendment equal protection to the non-straight community. He also, in a 10th Circuit ruling, wrote the Hobby Lobby opinion which both granted corporate personhood to closely-held for-profit corporations and also allowed them to skirt a federal law in the ACA on religious grounds.

To make matters worse, if you read below that “Scope” passage in the PDF link above, you’ll see that the Chief Judges (as well as any “special committee” assigned by the Chief Judges) have complete discretion to, in effect, make any ruling they feel like, the governing rules be damned:

A Rule will not apply if, when performing duties authorized by the Act, a chief judge, a special committee, a judicial council, the Committee on Judicial Conduct and Disability, or the Judicial Conference expressly finds that exceptional circumstances render application of that Rule in a particular proceeding manifestly unjust or contrary to the purposes of the Act or these Rules.

(emphasis mine)


Make it up as you go along, guys.

Now of course if Tymkovich were to decide to act as we’d expect an ideologue on the right in his position to act, then he’ll just give the batch of 15 complaints a cursory perusal and tell us,

“Yeah, well it’s all not very flattering to Justice Kavanaugh, but it’s nonetheless moot because he’s on the SCOTUS now and he’s beyond the purview of my JC.”

That would cause and uproar but the hope would be that it will all die down and the Supremes could go back to dismantling our democracy as God intended they do.

OTOH, there’s a lot of interesting stuff that seems designed, by Roberts himself, to push the actions of the 10th in the opposite direction:

First, in his cover letter to Tymkovich, Roberts adds this very meaningful sentence to the order he gave to Tymkovich to…

“…excercize the powers of a judicial council with respect to the identified complaints and any pending or new complaints relating to the same subject matter.”

That’s a pretty big codicil to the order because the standard process only utilizes the “judicial council” after the Chief Judge has ruled on the validity of the complaints, and has decided that they’re not moot and are of sufficient gravity to be reviewed and decided on by a larger group of judges. IOW, Roberts is saying, in that sentence,

Skip your executive review, Tim, and call a council right off to deal with this shit!

And on top of that big procedural jump-ahead, he also gave the “pending or new complaints” add-on that also has huge ramifications because it’s basically saying

“Don’t give this a wink and a nod, Judge; on the contrary look for more evidence.”

He’s telling Tymkovich and the Judicial council he’s instructed to assemble to actually broaden, rather than limit (or diminish, as one would expect a RW judge to do) the scope of his review of the complaints and to take this very very seriously.

And the other big directive that’s implicit in this order is that declaring the process “moot” (because the SCOTUS is beyond the scope of the JC’s mandate, which is actually part of Rule 11 in that PDF) is off the table! He’s saying

No rug, no broom folks.

It will be very interesting going forward. The first thing to watch for will be whom Tymkovich pics for the judicial council. One person who should be on the council is the previous Chief Judge, Mary Beck Briscoe, who is still an active judge. She’s a good one.

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This is a Creative Commons article. The original version of this article appeared here.


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