Judge Jane Kelly: The Knives Come Out
Mar. 10, 2016 (Mimesis Law) — Carrie Severino of the National Review ripped to shreds Judge Jane Kelly’s defense of Casey Fredriksen when Kelly was a federal public defender in Iowa:
As the White House’s vetting process unfolds, they will probably find other facts that are significantly less convenient [than her being from Iowa]. For example, when Kelly worked as a public defender she helped secure a plea deal for one Casey Frederiksen, a convicted child predator.
Kelly helped him negotiate a plea deal under which he pled guilty to three charges and received a sentence of 14 years in prison.
While serving that sentence, Frederiksen pled guilty to a new drug crime, and then eventually was sentenced to two consecutive life sentences for sexually abusing Evelyn Miller and stabbing her to death before dumping her in a river. Frederiksen committed this crime only three months before Kelly stood to argue that he was “not a threat to society.”
That sounds horrible, doesn’t it? Severino implies that Kelly was arguing that Frederiksen “wasn’t a threat to the community,” knowing that Frederiksen murdered a five-year-old girl.
Here’s what actually happened: when the girl disappeared in 2005, Frederiksen was a suspect. During the course of that investigation, the authorities discovered child pornography that belonged to him. He was indicted on those charges, and Kelly was appointed to represent him. At a bond hearing, Kelly argued for Frederiksen’s release before trial, saying that Frederiksen had been seeing a psychologist, and it was the psychologist who opined that Frederiksen was not a danger to others.
Frederiksen would not be indicted for the girl’s murder for another seven years. Nevertheless, for Severino, arguing for her client’s freedom should disqualify Kelly from higher office.
The thing is, Severino knows better. She’s also a graduate of Harvard Law, and clerked for Justice Thomas. Now, however, she works for the Judicial Crisis Network, basically an organization that works to prevent the appointment or election of
Democrats judicial activists to the bench.
The Supreme Court dwells on the topmost floor of the highest ivory tower in the legal system. Justices tend to follow fairly predictable career paths. First, a top law school, followed by a federal clerkship and a Supreme Court clerkship. Then, either working for the federal government in some pretty high capacity, or a professorship (also at a top law school), or time in BigLaw; or some combination of the three. Then, a position on the Court of Appeals for a few years, or a few more years. Eventually, one day, the phone call that says “Please hold for the President.”
So as far as the ivory tower goes, their careers tend to start about three-quarters of the way up. For their entire careers, they tend not to get much in the way of up-close experience where the proverbial rubber meets the metaphorical road. The only sitting Justice who has ever even presided over a jury trial is Justice Sotomayor. As for more prosaic matters, like making sure your client shows up for court, or trying to get a reluctant prosecutor to cough up discovery, fuhgeddaboudit.
Judge Kelly is a Harvard classmate of President Obama, and clerked for a District Court judge in South Dakota and then for Judge David Hansen of the Eighth Circuit. Her steady progress up the ivory tower took a sharp turn when she became an Assistant Federal Defender for the Northern District of Iowa. She became the head of that office in 1999, where she remained until President Obama appointed her to the Eighth Circuit Court of Appeals in 2013.
As Josh Kendrick pointed out, her experience matters:
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.
Her perspective also matters. She didn’t spend her career in the ivory tower, but in the trenches. Not just the trenches, but the front trench, peering through the haze of chlorine and shrapnel while the Huns came over the wire. True enough, the men and women on the Supreme Court are all brilliant. The thing is, they’re all brilliant in the same way. Regardless of their perceived ideology, their thinking and their jurisprudence are all shaped by their experiences, which have tended to be remarkably similar to each other.
Want diversity on the Supreme Court? As Judge Kopf points out, this is the kind of diversity we want: diversity of thought, diversity of experience, and diversity of outlook. But that can’t happen when a lawyer from the trenches is (dishonestly) criticized for fighting for her clients in exactly the manner that her job demanded.
Every criminal defense lawyer worth their salt has represented clients who have done terrible things. And yet, defend them we do, because that’s what our oath and our self-respect demand of us. If that disqualifies us from the highest bench, from any bench, that’s just a few more steps down the slippery slope that ends with the disappearance of the line between law and politics.
 Translated from the Republican, “judicial activist” means “judge who makes a ruling with which Republicans disagree.”