As discussed earlier in my Washington Post column, various names have been floating around town of possible nominees to replace the late Associate Justice Antonin Scalia. One of those names is Jane Kelly, a judge on the United States Court of Appeals for the Eighth Circuit. The conservative Judicial Crisis Network has not waited for the nomination and is already running an attack ad targeting Kelly. The ad is deeply troubling because it seeks to bar Kelly’s nomination because she zealously defended a child molester, Casey Frederiksen. The ad seeks to punish an attorney for performing her duty as a criminal defense counsel — suggesting that no attorney should defend those accused of such heinous crimes. While we celebrate the courage of presidents like John Adams (who represented the British soldiers involved in the Boston Massacre), there is a rising tide of intolerance for those who step forward to fulfill the guarantees of due process and the right to counsel under our Constitution. The attack ad is the judicial version of Willie Horton ad used against Michael Dukakis by President George H. W. Bush.
The ad campaign proclaims:
“This is Jane Kelly. President Obama may appoint her to the Supreme Court. As a lawyer she argued that her client, an admitted child molester, wasn’t a threat to society. That client was found with more than 1,000 files of child pornography and later convicted for murdering and molesting a 5-year-old girl from Iowa. Not a threat to society? Tell your senator, Jane Kelly doesn’t belong on the Supreme Court.”
It is an appalling attack in my view that ignores the right to counsel for all accused persons. There are innocent people who are accused of crimes and everyone deserves the right to argue their innocence with the representation of counsel. One of the obvious components in any defense to a case of this kind is that the accused is not a danger to society. Indeed, the argument of innocence for a defendant naturally involves an argument of no danger to society. That argument is obviously made by counsel but it is the jury and the court that decide the issue after listing to both the prosecutors and the defense counsel.
Jane Kelly was a law school classmate of President Obama who received her B.A. summa cum laude from Duke and then graduated from Harvard in 1991. She also studied pediatrics for one year in New Zealand under a Fulbright Scholarship. She clerked for Donald J. Porter, chief judge of the United States District Court for the District of South Dakota in Sioux Falls, South Dakota and then clerked for David R. Hansen, a judge of the United States Court of Appeals for the Eighth Circuit. She then served as an assistant federal public defender in the Northern District of Iowa, in 1994 and served as the supervising attorney in the Cedar Rapids, Iowa office, from 1999 to 2013. She was put on the 8th Circuit in 2013 with a confirmation vote of 96-0.
Kelly’s opinions do not shed a great deal on her jurisprudential depth or vision. However, she obviously has a stellar background and would bring long needed litigation experience to the Court. Indeed, her work as a criminal defense lawyer would make her fairly unique among nominees and would add a valuable perspective on the Court. What is so troubling is the impact of campaigns like this one on young lawyers. Many become prosecutors because they feel that people will blame them for their clients. The federal bench is full for former prosecutors and the defense counsel often privately complain of a bias against criminal defendants.
Frederiksen was living with five-year-old Evelyn Miller and her mother when he abuse the child and then stabbed her to death in July 2005. When he was convicted, he was serving a 14-year sentence in federal prison for receiving and possessing child pornography.
It is impossible to believe in the rule of law without accepting core principles of the right to counsel and due process. This ad campaign seeks to demonize lawyers for simply defending accused persons. Even in this poisonous election cycle, such an attack is disgraceful and should be denounced by liberals and conservatives alike. There are certainly arguments that have been raised against consideration of any nominee and there are no doubt grounds to question particular nominees, including Kelly. However, performing her sworn duty to zealously defend a client is not one of those good-faith grounds. Ironically, Kelly would have been the first to step forward to represent any of the people behind this attack campaign at Judicial Crisis Network if they were accused of wrongdoing. It is incredibly sad that network cannot distinguish between a lawyer fulfilling her vital function in the criminal justice system and the criminal himself.