The Rank Hypocrisy Of Judicial Crisis Network's Smear Of Jane Kelly For Doing Her Job As A Lawyer

››› ››› TIMOTHY JOHNSON

Judicial Crisis Network (JCN), a right-wing group that says it will spend millions of dollars to attack Obama's pick to fill the Supreme Court vacancy, has launched a smear campaign against potential nominee Judge Jane Kelly based on her record of representing criminal defendants while working as a federal public defender. But in 2005, the group supported the confirmation of Chief Justice John Roberts, even though Roberts previously represented a serial killer. Both Roberts and Kelly were doing their duty as lawyers, but JCN only targeted Kelly with attacks.

Jane Kelly, A Former Public Defender, Is Reportedly Being Considered For Supreme Court Nomination

President Obama Reportedly Considering Jane Kelly For Supreme Court. The New York Times reported on March 2 that "President Obama is vetting Jane L. Kelly, a federal appellate judge in Iowa, as a potential nominee for the Supreme Court":

President Obama is vetting Jane L. Kelly, a federal appellate judge in Iowa, as a potential nominee for the Supreme Court, weighing a selection that could pose an awkward dilemma for her home-state senator Charles E. Grassley, who has pledged to block the president from filling the vacancy.The F.B.I. has been conducting background interviews on Judge Kelly, 51, according to a person with knowledge of the process. The person spoke on the condition of anonymity because the White House is closely guarding details about Mr. Obama's search to fill the opening created by the death of Justice Antonin Scalia. [The New York Times, 3/2/16]

Kelly Was Previously A Public Defender In Iowa. Before becoming a federal judge, Kelly was an assistant federal public defender in Cedar Rapids, Iowa, helping clients who could not afford an attorney on their own. Federal public defenders are government officials appointed by courts to enforce the Sixth Amendment right to counsel. [SCOTUSBlog, 3/7/16, UScourts.gov, accessed 3/14/16]

JCN Smears Kelly For Being A Lawyer

JCN Chief Counsel Claimed That Kelly Was Unsuitable For The Supreme Court Because She Represented A Criminal Client While Working As A Federal Public Defender. Even though a public defender's basic constitutional responsibility is to advocate for his or her client, JCN chief counsel Carrie Severino attacked Kelly because while working as a federal public defender in Iowa, she secured a 14-year prison sentence plea deal for Casey Frederiksen, who was charged with receiving and possessing child pornography. In a March 3 blog for National Review, Serevino attacked Kelly because the former public defender had "argued her client was not a threat to society," without mentioning Kelly was presenting the views of a psychologist that her client had been seeing. [National Review, 3/3/16; Media Matters, 3/7/16]

JCN Launched Six-Figure Ad Campaign Against Kelly Attacking Her Work As A Public Defender. JCN launched an ad that claims Kelly "doesn't belong on the Supreme Court" because of her representation of Frederiksen. Politico reported, "The ad buy will start at about $250,000 and is aimed at dampening support for Kelly among moderate Democrats":

The conservative Judicial Crisis Network is launching an ad campaign Friday targeting Jane Kelly, a judge on President Barack Obama's short-list for a possible Supreme Court nominee, for her work defending a client on child pornography charges who later was convicted of murder.

"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," the narrator says.

The ad buy will start at about $250,000 and is aimed at dampening support for Kelly among moderate Democrats. In addition to running in Iowa -- the home state of both Kelly and Republican Senate Judiciary Chairman Chuck Grassley -- the ad will begin running on Sunday news shows in the home states of Sens. Michael Bennet of Colorado, Joe Donnelly of Indiana, Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota. [Politico, 3/11/16]

FLASHBACK: In 2005, JCN Advocated For John Roberts' Confirmation, Despite His Representation Of A Serial Killer

John Roberts Did Pro Bono Representation For Serial Killer John Errol Ferguson. When Ferguson was executed in 2014 after being convicted of murdering eight people, MSNBC.com reported Roberts "devoted 25 pro bono hours to Ferguson's case when he was working in private practice" but that the issue was not "a hinderance" during Roberts' confirmation hearings. [MSNBC.com, 3/10/14]

JCN Executive Director In 2005: "We're Going To Invest Whatever Dollars We Need To Support John Roberts." During an August 1, 2005, interview that took place six weeks before the beginning of confirmation hearings, JCN's Gary Marx discussed how JCN hoped to spend $3 million or more supporting Roberts' confirmation:

STEVE HEN reporting:

Long before Justice Sandra Day O'Connor announced her retirement, groups on the left and right were hoarding cash, plotting TV advertising strategies and sharpening their axes. Some analysts predicted that a nasty fight over Bush's Supreme Court pick could lead to more than a hundred million dollars in paid political advertising.

Mr. GARY MARX (Executive Director, Judicial Confirmation Network): We've raised more $3 million for this Supreme Court fight, and we--you know, we're going to invest whatever dollars we need to to support John Roberts.

HEN: That's Gary Marx, executive director of the Judicial Confirmation Network. Marx, with just $3 million to spend on the judicial confirmation battle, is a relatively small fish in a very big pond.

Mr. MARX: The largest player is Progress for America, and they've been doing a lot of TV ads already. There are a lot of other groups such as Judicial Confirmation Network, Focus On the Family, Americans for Tax Reform, Committee for Justice, that will be investing dollars. [MARKETPLACE from American Public Media, 8/1/05, via Nexis]

JCN Chief Counsel: Bush Should Nominate More People Like Roberts. One month after Roberts' confirmation when President George W. Bush was moving to fill another vacancy on the Court, JCN chief counsel Wendy Long said Bush should "stick with the formula" that led to Roberts' nomination, which meant choosing nominees "with sterling legal credentials, weighty judicial experience and a transparent public record":

"The president will probably just stick with the formula that has served him so well over five years of judicial selections, including the choice of Chief Justice John Roberts," said Wendy Long, counsel for the conservative Judicial Confirmation Network. "That is to pick a nominee with sterling legal credentials, weighty judicial experience and a transparent public record." [Associated Press Online, 10/28/05, via Nexis]

Long: Roberts Selection Meant The Court "Will Be Moving Toward A More Faithful Reading Of The Constitution." From a November 1, 2005, report in The Houston Chronicle:

"Judge Alito is the best there is," said Wendy E. Long, counsel to the conservative Judicial Confirmation Network. "The legacy of President Bush, with the (John) Roberts and Alito nominations, will be that the court, ever so incrementally, will be moving toward a more faithful reading of the Constitution and a recognition of the limited role of the judiciary." [The Houston Chronicle, 11/1/05, via Nexis]

Lawyers Across The Political Spectrum And The ABA Have Said Attacks On Attorneys For Defending The Accused Undermine The Justice System

American Bar Association: "Fundamental Tenet" Of Justice System Is That Anyone Facing "Loss Of Liberty" Has The Right To Legal Counsel. In 2014, the president of the American Bar Association (ABA), James R. Silkenat, wrote a letter to the Democratic and Republican leaders of the Senate Judiciary Committee regarding attacks against Debo Adegbile, President Obama's nominee to head the Justice Department's Civil Rights Division, over his legal representation for Mumia Abu-Jamal, who had been sentenced to death for the murder of a police officer. Silkenat wrote that a "fundamental tenet of our justice system and our Constitution is that anyone who faces loss of liberty has a right to legal counsel," and that attorneys "have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government - even to those accused or convicted of terrible crimes":

As the Senate Judiciary Committee prepares to deliberate over the nomination of Debo Adegbile to be Assistant Attorney General for the Civil Rights Division, I write to address the criticism this nominee has received regarding the legal representation he provided to a death-sentenced prisoner. A fundamental tenet of our justice system and our Constitution is that anyone who faces loss of liberty has a right to legal counsel. Lawyers have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government - even to those accused or convicted of terrible crimes. The American people understand this obligation, and the corollary principle stated in rule 1.2(b) of the ABA Model Rules of Professional Conduct that "[a] lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social or moral views or activities."I was alarmed to learn that there is some opposition to Mr. Adegbile's nomination based solely on his efforts to protect the fundamental rights of an unpopular client while working at the Legal Defense Fund. His work, like the work of ABA members who provide thousands of hours of pro bono legal services every year, is consistent with the finest tradition of this country's legal profession and should be commended, not condemned. [American Bar Association, 1/13/14]

Kenneth Starr, Top Bush Administration Lawyers Denounced "Shameful" Republican Attacks On Lawyers. In 2010, a conservative group run by Liz Cheney produced an ad that questioned the loyalties of Department of Justice attorneys appointed by President Obama who had previously represented detainees at Guantanamo Bay. Numerous conservative lawyers subsequently signed a letter stating that the attacks on the Justice Department lawyers were "shameful" and "undermine[d] the Justice system" by undermining the American tradition of providing "zealous representation of unpopular clients." Politico reported that the signers included former independent counsel Kenneth Starr as well as:

[F]ormer Deputy Attorney General Larry Thompson, John Ashcroft's No. 2, and Peter Keisler, who served as acting attorney general during President Bush's second term. They also include several lawyers who dealt directly with detainee policy: Matthew Waxman and Charles "Cully" Stimson, who each served as deputy assistant secretary of defense for detainee affairs; Daniel Dell'Orto, who was acting general counsel for the Department of Defense; and Bradford Berenson, a prominent Washington lawyer who worked on the issues as an associate White House counsel during President Bush's first term. [Politico, 3/8/10]

Sen. Lindsey Graham: "This System Of Justice That We're So Proud Of In America Requires The Unpopular To Have An Advocate." Sen. Lindsey Graham (R-SC), a former military lawyer, noted in 2010 that the "system of justice that we're so proud of in America requires the unpopular to have an advocate":

I've been a military lawyer for almost 30 years, I represented people as a defense attorney in the military that were charged with some pretty horrific acts, and I gave them my all. This system of justice that we're so proud of in America requires the unpopular to have an advocate and every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer. [Foreign Policy, 3/9/10]

Former Attorney General Michael Mukasey: "You Shouldn't Judge A Lawyer By His Clients." Former Attorney General Michael Mukasey, in a Wall Street Journal op-ed headlined, "Why You Shouldn't Judge A Lawyer by His Clients," wrote that it's "wrong to criticize attorneys who represent alleged terrorists" and noted that the D.C. bar's rules of conduct say representation of a client should "not be portrayed as endorsement of the client's views or behavior":

It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility-whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States. It's also prudent that Congress exercise its long-established oversight responsibility to provide that assurance. But that prudence is not properly exercised by arguing that lawyers who defended drug cases, or worked on defense teams in death-penalty cases, or helped bring legal proceedings in behalf of those detained as terrorists, are automatically to be identified with their former clients and regarded as a fifth column within the Justice Department. The rules of conduct of the District of Columbia bar, for example, direct that representation of a client not be portrayed as endorsement of the client's views or behavior. If the Department of Justice comes to attract only lawyers who have spent their professional energy principally in avoiding matters of controversy, the quality of lawyers willing to serve at the department will decline, and the department will suffer, as will we all. [The Wall Street Journal, 3/10/10]

Former Bush Administration Official Peter D. Keisler: Acting Within "Honorable Tradition Of Lawyers Representing Controversial Clients" Does Not Make Someone "Unfit" For Service. The New York Times reported in 2010 that former Bush administration official Peter D. Keisler highlighted the "longstanding and very honorable tradition of lawyers representing unpopular or controversial clients" in response to attacks on Obama administration nominees:

Peter D. Keisler, who was assistant attorney general for the civil division in the Bush administration, said in an interview that it was "wrong" to attack lawyers who volunteered to help such lawsuits before joining the Justice Department."There is a longstanding and very honorable tradition of lawyers representing unpopular or controversial clients," Mr. Keisler said. "The fact that someone has acted within that tradition, as many lawyers, civilian and military, have done with respect to people who are accused of terrorism - that should never be a basis for suggesting that they are unfit in any way to serve in the Department of Justice." [The New York Times, 3/4/10]

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