Mimesis Law
2 June 2020

Judge Jane Kelly: Experience Matters

Mar. 4, 2016 (Mimesis Law) — A few weeks ago, Fault Lines contributor and United States District Judge Richard Kopf suggested that the President should nominate Eight Circuit Court of Appeals Judge Jane Kelly to the Supreme Court. Apparently, the President reads Fault Lines and took Judge Kopf’s wise advice. Anonymous sources have leaked that the President is currently vetting Judge Kelly for the open spot on the Supreme Court.

Judge Kopf wrote that Kelly’s nomination would add real diversity to the Supreme Court, based on her past experience as a federal public defender. He was right. Putting Judge Kelly on the Supreme Court would add something that the Court is sorely lacking.

Judge Kelly has one overwhelming qualification if she is named to the Supreme Court. Despite the fact she would be the youngest justice, she would be the most experienced lawyer on the highest court. And that should matter.

There is no doubt the current justices are very well-educated. According to their biographies, they all went to fine schools. Most have experience as clerks for federal district and appellate courts. Many of them have extensive experience in government or as prosecutors. The only other real area any of the justices have experienced is academics.

One thing is missing. It is unlikely any of the current Supreme Court justices have spent a whole lot of time with clients. Not huge corporations or the government, but real live clients who have real live problems and no one but their lawyer to help. There is nothing wrong with representing government or large companies, but that sector of law is well-represented on the Supreme Court.

So what is Judge Kelly all about? What is her story? Why would she add something to our highest court and, in turn, our life?

Judge Kelly’s career is exemplary. She has the academic credentials, if you care about that sort of thing. An undergraduate degree from Duke and a law degree from Harvard. She started out in prestigious positions. She served as a law clerk for both a federal district judge and a federal appellate judge.

That type of start to a career allows a lawyer to write her own ticket. Big city law firms, respected government agencies, and pretty much any prosecutor, would jump at the chance to hire someone with Kelly’s background. Money, prestige, and power are right within reach.

But Judge Kelly took a different route. She chose service over prestige and money. Her first lawyering job was as a federal public defender. Kelly represented poor defendants charged with federal crimes. Not glamorous, but important.

In addition to her job, Judge Kelly has a unique personal experience directly related to the law. She was the victim of a violent mugging and nearly killed. She handled the attack with grace rarely seen from public figures:

“It’s easy to lose compassion,” she said at the time, according to the Des Moines Register, “but the problem is bigger than who committed the crime.”

After almost being beaten to death, one has an excuse for letting feelz take over. Not Judge Kelly. Her statement reflects the same selfless attitude that has governed her career.

In 2013, Kelly was named to the United States Court of Appeals for the Eighth Circuit, which hears appeals from federal cases in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

As an appellate judge, she has been busy. There are a number of decisions she has been involved in. She has authored over 50 opinions in her short time on the bench. There are too many to go through here, but she seems fair. Not unnecessarily sympathetic to defendants, but not blindly trusting of the government.

Two opinions are worth mentioning, because they show exactly what Judge Kelly’s experience as a real trial lawyer brings to an appellate bench. In United States v. Robinson, Kelly dissented from a circuit opinion involving a Brady violation by prosecutors. Information on a detective’s misconduct was not turned over to the defense. It happens all the time. No one seems to care. But as a former trial lawyer, Judge Kelly appreciated the real effect this information can have. She has been in a courtroom cross-examining a police officer, as opposed to just reading about it or seeing it in a transcript.

In United States v. Harrison, Kelly dissented again, arguing the government should have been required to bring a live witness to a revocation hearing. It wasn’t fair to just read police reports from another state. Again, this is the kind of thing a real lawyer knows. Sitting in a courtroom listening to a report you can’t question, dispute, or challenge in any way. A lawyer cannot win a confrontation with a piece of paper. Real lawyers know that. Judge Kelly knows that.

Jane Kelly, with all of her academic credentials and federal clerkships, chose a life of service. Even as a federal appellate judge, she makes a fraction of what she could make in private practice with her blue chip resume and her trial experience. If nominated to the Supreme Court, she will have reached the pinnacle of the legal world.

Unfortunately, Kelly’s time comes at a time when Republicans in the United States Senate are throwing a temper-tantrum of epic proportions. Senator Chuck Grassley, Judge Kelly’s fellow Iowan, couldn’t say enough good things about her when she was named to the Court of Appeals. Now? He just wants to make a point.

“In this particular instance,” Mr. Grassley said about the election-year vacancy, “it has got to be the process, and the person doesn’t matter, see.”

Huh? You don’t care who ends up on the Supreme Court, as long as it’s a result of you winning a pissing contest with the President? Surely these guys don’t want the same people who know almost nothing about our government to help pick the next Supreme Court justice?

Well, according to the current Senate Majority leader, Mitch McConnell, that is exactly what he and Chuck think should happen.

“The Chairman of the Judiciary Committee and I believe that it is today the American people who are best-positioned to help make this important decision — rather than a lame-duck president whose priorities and policies they just rejected in the most recent national election,” he said Monday evening on the Senate floor.

What a sad statement. The country may miss an opportunity to have a fine Supreme Court justice, all because of some political gamesmanship. The idea that this somehow includes the American people in the selection of the next Supreme Court justice is nonsense. That can be done without making a further spectacle out of America’s government.

Here’s the deal. If you want the common people represented on the Supreme Court, put a public defender on it. Put Jane Kelly on it.

5 Comments on this post.

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  • Richard Kopf
    4 March 2016 at 9:24 am - Reply

    Dear Josh,

    You are so right. There is nothing like servings clients who are often destable and frequently and literally smell bad to teach a judge about real life.

    Thanks for making this point. All the best.

    Rich Kopf

  • repenting lawyer
    4 March 2016 at 11:35 am - Reply

    My Dad used to say we call them clients because we cannot think of anything worse, but maybe to steal from the Pope even SCOTUS Justices should occasionally smell like the sheep.

    • Richard G. Kopf
      4 March 2016 at 6:14 pm - Reply

      repenting lawyer,

      Exactly. Wise guys, your Dad and the Pope. All the best.


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