In the aftermath of Brett Kavanaugh’s confirmation hearing for the Supreme Court, there were 83 ethics complaints filed against him. As Joe Patrice artfully put it, “— 83 of them! — ” That’s a lot of complaints.

The complaints about Kavanaugh generally alleged that he lied during his nomination proceedings, made “inappropriate partisan statements that demonstrate bias and a lack of judicial temperament” and was disrespectful to the Senate Judiciary Committee during his September hearing, the panel’s decision noted.

The complaints didn’t come from litigants personally affected, but from the usual suspects: lawyers, academics, members of the public, all of whom enjoyed their power as Americans to complain about a judge. Given the heat, it’s rather remarkable that there were only 83 complaints, 

Chief Judge John Roberts referred them to the Tenth Circuit for determination, after a judge on the D.C. Circuit requested the complaints be reviewed by a different court than the one on which Kavanaugh served. The Tenth Circuit judicial council dismissed the complaints. all “— 83 of them! — “!!!

The court held that the Judicial Conduct and Disability Act of 1980 applies only to judges of lesser status, not to Supremes. This is a matter of constitutional law, separation of powers, as the judiciary is a third branch of government and the Constitution requires there be a Chief Judge and Supreme Court. It’s not up to Congress to make laws telling a co-equal branch of government how to behave. And from a more pragmatic perspective, if the Nine can be trusted to decide constitutionality, can they not be trusted to manage themselves?

Does this mean Kavanaugh got a free pass on legitimate accusations of impropriety? Maybe, but that’s by no means clear. The people complaining about his lying had no actual knowledge of truth or falsity of his statements. They believed with certainty, as the unduly passionate are wont to do, but they knew nothing more than the twitters told them.

As for his temperament and potential for conflicts based on his lashing out along political lines, which was on display for all to see, the complaints were answered by his being confirmed. This may well be an extremely unsatisfying answer, but that’s what the Senate’s “advice and consent” duty is about, like it or not. And it should be remembered that the Supremes aren’t entirely above reproach, as a justice can always be impeached.

But these 83 complaints were silly, and never stood a chance in hell of accomplishing anything. Even if there were 83,000 (which would not have been entirely surprising), it wouldn’t matter. Passionate certainty doesn’t prove a lie, and it’s not left to random members of the legal academy to decide whether someone’s temperament makes him unfit for the Court. That’s what the Senate is there to do.

By holding that the complaints fell outside the scope of the Judiciary Conduct and Disability Act, the Tenth Circuit took the clearest, and kindest, path possible. The alternative was to call out the complaints as being frivolous or meritless, the product of an excess of passion and dearth of knowledge. There would be a bunch of progressive prawfs feelings pretty darn lousy about themselves if the court did that.

But as Noah Feldman argues, there was a path that the Tenth Circuit could have taken that would have allowed them to pass judgment on the substance of the complaints against Kavanaugh.

The Judicial Conduct and Disability Act of 1980 does indeed say that “the term ‘judge’ means a circuit judge, district judge, bankruptcy judge, or magistrate judge.” And the complaints against Kavanaugh date to a time when he was in fact a circuit judge.

The law says that “any person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts” can file a complaint. That could have been construed to include Kavanaugh.

Much as he is Justice Kavanaugh now, he wasn’t then, and as Circuit Judge Kavanaugh, he was subject to the law. But had they done so, what were they going to do about it anyway?

Most lawyers, however, would agree that the law shouldn’t be applied to Kavanaugh because there would be no way to sanction him under the law now that he is no longer a judge by its definition. It’s logical to interpret the statute as not applying at all once the subject of the complaint is no longer a judge.

The response is that the sanction aside, the court could have issued a “symbolic” condemnation. So what if they couldn’t remove him from the Nine or demand he genuflect and take sexual harassment training. At least they could validate the feelings of the passionate, and in the process, taint Kavanaugh in perpetuity as not only the judge who stole Merrick Garland’s seat but the rapey judge. Okay, the other rapey judge.

And it would send a message that is crucial in this historical moment: No branch of government, whether the judiciary or the executive, is above the law.

Or as Patrice puts it:

Sometimes the answer to living in filth forever is to wait until the children clean up their own room. Try and fix it for them once and….

Well, you’re inviting tyranny into your household.

Much as the complaints against Kavanaugh never stood a chance of success, there was a great deal to be concerned about in his confirmation hearing, not the least of which was the hyper-partisanship all around. While complainants may not have had the actual knowledge to raise challenges to the truthfulness of his responses to the Senate Judiciary Committee, there remain a great many people whose vision isn’t clouded by passion who harbor serious doubts that he didn’t lie, open and bald-faced, when confronted with his wayward youth.

None of this means he wasn’t otherwise qualified to serve on the Supreme Court, that his decisions will be suspect or that he won’t leave a legacy of sound legal reasoning and opinions. Maybe no one could survive the scrutiny given Kavanaugh, designed to force his withdrawal or delay confirmation until after the midterms. Maybe no one will be pure enough to survive picking every scab, real or imagined, in his life to see if we can make the wound beneath bleed.