CNN: A cloud of sexual assault allegations 'still hangs over Justice Brett Kavanaugh'

Today CNN published a story headlined, “Allegations remain in forefront for Kavanaugh, 7 months after his confirmation.” That was news to me and I’m sure to a lot of people who think the allegations against Kavanaugh are definitely in the rear view mirror. Here’s how the story opens:

Seven months after he joined the US Supreme Court, the cloud of Christine Blasey Ford’s sexual assault allegations still hangs over Justice Brett Kavanaugh, recalled in media reports across the political spectrum and unresolved in the US judiciary’s own process for handling related ethics claims.

The story doesn’t really make any effort to substantiate the claim that this is still news “across the political spectrum.” It cites a couple of CNN stories, the “100 Most Influential Americans” list by Time magazine (which included Kavanaugh and Blasey Ford), and a tweet by actress Jessica Chastain. So I guess that covers the ground from center-left to Hollywood left. If you believe that’s the entire U.S. political spectrum then this piece might sound convincing to you.

In any case, all of that is just preparatory material to introduce the real subject of the piece: A host of ethics complaints filed against Kavanaugh, all of which have already been dismissed. Some of those were appealed and dismissed again:

Among the 83 misconduct claims filed against Kavanaugh were those alleging that his response to the Ford accusation was inappropriately partisan, demonstrating bias and a lack of judicial temperament. Others accused him of making false statements during the 2018 hearings and in 2004 and 2006 when he was being considered for a seat on the US Court of Appeals for the District of Columbia Circuit.

When a US appeals court’s judicial council considered the complaints, which had been referred to it by Chief Justice Roberts, the council said the claims could not be examined or resolved because Kavanaugh, once confirmed to the high court, was exempt from the 1980 judicial misconduct law…

In March, after 20 of the complainants had appealed, the 10th Circuit council reaffirmed that decision. “The lack of jurisdiction over Justice Kavanaugh precludes an investigative and fact-finding process, even over conduct allegedly committed while Justice Kavanaugh was a covered judge,” the council wrote.

Notice that we’ve turned a corner here. These complaints don’t directly involve Blasey Ford’s allegations, though some of them involve Kavanaugh’s temperamental response to a host of allegations of which hers were only a part. There’s no mention in this piece of any of the other accusers. Julie Swetnick’s dodgy, shifting story about Kavanaugh being involved in gang-rapes doesn’t feature in this summary of recent history. It’s dishonest to leave those allegations out because you can’t understand why Kavanaugh was so angry at his confirmation apart from some of the extreme stories which were entertained by Democrats and the media at the same time.

In any case, some of the cases have now been appealed again. The only one mentioned in the piece was written by someone named Paul Horvitz. You can read his full appeal here. He’s not arguing that the case shouldn’t be dismissed, he’s arguing that while dismissing the case, the judges could still choose to weigh in on the appropriateness of Kavanaugh’s behavior. In other words, they can’t wound him but they could still shame him. The point of this, according to Horvitz, is to uphold the importance of the rules for others.

For the moment, this seems to be a fairly fringe position (though who knows what the judges will decide to do next). But this last-ditch legal effort (again, this has already been dismissed twice) to put a formal black mark on Kavanaugh’s record doesn’t demonstrate that allegations remain at the “forefront” for Kavanaugh. At best, it demonstrates that claims tangential to those allegations remain at the forefront for a tiny handful of people still hoping to score a belated moral victory over Kavanaugh. But I guess that wouldn’t have made quite as catchy a headline.

David Strom 6:41 PM on September 26, 2022