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Judge Kelly Difficult to Oppose? Seriously?

Rumor has it that the Obama White House wants to nominate a successor to Justice Scalia who would be hard for Republicans to oppose.  One name that has been floated is Judge Jane Kelly of the Eighth Circuit.

Thomas Hopson has this post at SCOTUSblog.  He lists five capital cases that Judge Kelly participated in.  They are all cases decided en banc or denying rehearing en banc with a dissent.  In every one of five cases, a large majority of the court decides against the murderer or decides not to review a panel decision against the murderer, and in every one Judge Kelly joins the dissent.

While an honest judge faithfully applying the law may occasionally need to reverse a conviction or sentence or stay an execution in a case that has completed the full review cycle, these are the exceptions.  Most cases that have reached this stage are sound judgments, and execution should go forward.  A judge who votes this consistently for the murderer in cases where large majorities go the other way almost certainly has an agenda and is willing to bend the law in the murderer's favor to advance that agenda.  That willingness is disqualifying.

What kind of Bizarro World are the folks in the White House Counsel's office living in that they think a judge with this kind of record would be difficult for Republicans to oppose?

The facts that Senator Grassley supported her for the Eighth Circuit or that she was easily confirmed for that seat are now irrelevant.  She didn't have that record then, and in any event there is a fundamental difference between an intermediate appellate court and a court of last resort.


For a bunch of reasons, including some made in this space, I think Ketanji Brown Jackson is a much stronger candidate.

As I previously stated, Kelly is an intellectual lightweight who is clearly a "true believer" former public defender. Her opinion (given in 2002 to the Des Moines Register, as reported in Iowa Lawyer Magazine) regarding the root cause of criminal conduct exemplifies the mindset of a very liberal-leaning person with respect to criminal justice issues.

She has zero chance of being confirmed (or even given a hearing by the judiciary committee).

I would put Brown-Jackson in the same category with the same chance of getting a hearing.

Sri Srinivasan would be Obama's best bet. But I suspect Srinivasan doesn't want to be a sacrificial lamb in this no-win poltical battle. Indeed, who in their right mind would want to be thrust into this Mexican standoff?

When the question is whether the candidate is openly pro-criminal or more circumspectly pro-criminal, you can see why Sen. Grassley, and every member of the majority on the Judiciary Committee, have pledged that the nomination will be dead on arrival.

In a Gallup poll I noted previously, which no commenter has disputed, it was found that more than three-quarters of the public believes the SCOTUS with Justice Scalia on it was about right (40%) OR TOO LIBERAL (37%).


That being the case, the Republican-controlled Senate is in accord with the American people in refusing to move the Court to the left, whether by a gaping or merely a large amount.

What is your basis, paul, for calling Judge Brown-Jackson "an intellectual lightweight"? She graduated magna cum laude from Harvard College and was on the law review at Harvard Law School. She clerked for highly regarded judges at the federal district and circuit courts in Boston and then for Justice Breyer. She thereafter worked in prominent/challenging positions in public practice (FPD), private practice (MoFo) and in a significant govt agency (Vice-Chair USSC). And now she has been a district judge for 3 years.

This record, on paper, is at least as impressive as was the record of Clarence Thomas when he was nominated. Perhaps you called Justice Thomas a lightweight back then (others surely did), but I think he has proven on SCOTUS to be anything but.

In addition to wondering about your basis for calling Judge Brown-Jackson "an intellectual lightweight" (and wondering if Bill and Kent and others agree), I want to state for the record that I would very happily offer to "be thrust into this Mexican standoff." Specifically, I would love to have an opportunity to account for and defend my views of law and jurisprudence in the spotlight. More importantly, I hope anyone with the fortitude essential to be a good SCOTUS justice would also welcome the opportunity to be in the spotlight in this way even if they get killed by 1000 political cuts.


When compared to me, she certainly is not an intellectual lightweight. But when compared to many other judges, Supreme Court advocates, and brilliant academics -- all of whom would be viable Supreme Court nominees in a non-election year and less partisan times -- I, respectfully, place her in that category. (At the time of his nomination, I would also have placed Justice Thomas in this category. But I do concede that he has grown in stature during his tenure on the Court. Whether this was the result of unrecognized intellectual potential blossiming, or the result of being assisted in his opinion writing by superb law clerks, I obviously don't know.)

I still don't understand why a well-qualified nominee would agree to be thrust into this political battle knowing, as it stands right now, that they have no chance of being confirmed, or even granted a hearing.

It seems to me that any person willing to become the focal point of this monumental political standoff knowing that there is no likelihood of even having a hearing must have some political agenda, i.e., to become President Obama's (and Hillary Clinton's) "talking point" on why the GOP is so unreasonable and should not be allowed to take the White House and fill Justice Scalia's seat.

The question is not what the potential nominee wants. It's what the country wants. According to the Gallup poll, it wants a Court that was either where it was with Justice Scalia on it (a centrist Court, overall), or a Court more conservative than it was with Justice Scalia on it.

Every nominee being mentioned would move the Court to the left, a direction the country overwhelmingly does NOT want. For that reason alone, the Senate majority is correct in refusing consideration of any such nominee.

paul (and perhaps also Bill) or any others who are inclined to view Judge Brown-Jackson "an intellectual lightweight": Thanks for your explanation. But I am still struggling to get my hands around a tangible basis for your judgment that she is a relative lightweight. Is it that she never argued before the Supreme Court? Is it that she does not have a longer tenure as a federal judge? Is it that she decided to serve as a public defender?

I guess I am just proving that I am an intellectual lightweight because I am still struggling to figure out what leads you to use this label for the two public defenders on the short list, but seemingly not for the others.


I am using the term "intellectual lightweight" only in connection with a nomination to the Supreme Court. As you point out, she has a somewhat impressive background in terms of her education and clerking experience. But beyond that her background is mediocre when it comes to serving on the Court, especially as a replacement for a once-in-a-lifetime brilliant justice.

Let her serve on the district court for a few more years. If Hillary wins, she can then gain some experience on an appellate-level court. She will then have a much more expansive record to examine to determine if she has the intellectual prowess to serve on the Court.

In any event, this discussion is moot. No Obama nominee is going to get a hearing, regardless of their qualifications. As I previously stated on this blog, I believe that is wrong. But that is the political reality.

Thanks for this explanation, Paul, and I do suspect Hillary would be inclined to elevate Ketangi to the DC Circuit or even SCOTUS if she gets the chance. Indeed, she might make an especially interesting pick to replace her former boss Breyer or Ginsburg.

And Bill, I saw a PPP poll this morning showing more people would favor having Tom Hanks or Peyton Manning pick the next SCOTUS nominee over Donald Trump. For that reason and others, I hope folks engaged in this important discourse are paying attention to a lot more than just a few polls.

Doug --

"And Bill, I saw a PPP poll this morning showing more people would favor having Tom Hanks or Peyton Manning pick the next SCOTUS nominee over Donald Trump."

And I'm with them all the way. Indeed, I just might use some of my much-rumored political muscle to see if we can draft Manning as a Republican to run for office in that key swing state.

But moving back to the topic: The question is less the identity of the person to make the nomination, than whether he comes by the power to make it through the people's choosing -- a choosing now less than eight months hence. Because SCOTUS Justices can serve and shape fundamental law for 30 years, and are all but impossible to dislodge, letting the people have their say as directly as possible -- which is to say, at the fast approaching balloting -- seems like a worthwhile goal.

In other words, as a matter of wholesome transition, the nomination should be made by a new President -- a process that, at this high level, lubricates democratic self rule in a more knitted-together way than would be possible were the nomination, so pregnant with Court decisions to dominate the stage for years to come, were to be made by man whose time on stage is fast fading to black.

It has often and wisely been observed that there is a growing, unhealthy distance between the rulers and the ruled. Allowing the governed more proximately to have a say in what could be a law-shaking jurist for 30 years is an effective means to shorten that distance, and to bring more closely together the rulers with the ruled.

There is plenty of politics here, for sure. But there is a deeper and more important goal: sound government, one with a stronger and more faithful bond between present choices and the acceptance of future outcomes.

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