Potential nominee: Judge Jane Kelly, former public defender
on Mar 7, 2016 at 5:20 pm
Judge Jane Kelly was confirmed to the Eighth Circuit by a vote of ninety-six to zero. Throughout the process, she had the enthusiastic support of her home state senator, Iowa’s Chuck Grassley. Today, Grassley is at the center of the nomination process. As chair of the Senate Judiciary Committee, he has the formal power to decide whether the president’s nominees get a hearing and a committee vote. A Republican, he is under great pressure to block any nominee. But if Kelly were nominated, Democrats would no doubt use Grassley’s prior support to pressure him to allow hearings and a committee vote.
Born in 1964, Kelly was raised in Greencastle, Indiana. After graduating summa cum laude from Duke, she spent a year in New Zealand, researching pediatrics under a Fulbright Scholarship. She then attended Harvard Law School, where she was in President Obama’s graduating class of 1991.
After law school, she clerked for Judge Donald Porter on the U.S. District Court for South Dakota and Judge David Hansen on the Eighth Circuit. Porter was a Carter appointee, but Hansen was appointed by George H.W. Bush.
In 1994, Kelly became an assistant federal public defender in Cedar Rapids, Iowa, representing indigent defendants on a wide range of cases. During this time, she appeared in court often, sometimes multiple times per day. She also delivered several oral arguments before the Eighth Circuit. Kelly became a supervising attorney in 1999.
In addition to her work as a public defender, Kelly taught federal criminal practice at the University of Iowa Law School. She was also active in the bar and district court matters, serving on a blue-ribbon panel for criminal cases and on a facilities security committee. In 2004, she received the John Adams Award from the Iowa Association of Criminal Defense Lawyers, which recognizes an individual’s commitment to the constitutional rights of criminal defense.
Kelly was confirmed to the Eighth Circuit in April 2013, as the second woman to ever serve on that court. Before her hearing, Judge Hansen wrote an influential letter on her behalf. The hearing itself was friendly, with no objections to her nomination. She was unanimously confirmed.
On the Eighth Circuit, Kelly has given few hints about her judicial philosophy. Building on her work as a public defender, she has written for the majority on many criminal law cases, especially those on sentencing and criminal procedure. She has also written a good deal on the Fourth and Sixth Amendments, in cases in which her opinions hinged on questions of fact, not of law. For example, Ziesmer v. Hagen dealt with allegations of excessive force and unreasonable seizure by a state trooper, while addressed a retaliatory-use-of-force claim and Ghost Bear v. USA tackled the alleged inefficacy of a defendant’s counsel.
In Jackson v. Nixon, Kelly wrote an opinion on religious freedom. The petitioner was a prisoner in a Missouri jail. To be eligible for parole, he was required to attend a treatment program for substance abuse. However, the program involved religious tenets and the prisoner, an atheist, dropped out. Siding with the prisoner, Kelly held that “being required to attend and complete a nonsecular substance abuse treatment program in order to be eligible for early parole violates the Establishment Clause of the First Amendment.” This holding might have crossover with other religious liberty cases, like the Supreme Court’s recent decision in Holt v. Hobbs.
On the court, Kelly has shown a strong opposition to the death penalty, voting in five cases to stay a prisoner’s execution. In In re Lombardi, a Missouri prisoner challenged his state’s method of administering the death penalty. In the discovery stage, he wanted to learn the testing laboratory and compounding pharmacist that produced the compounds used by the state. The en banc majority argued that this information was irrelevant to any claim. The dissent, joined by Kelly, responded that “Missouri’s lack of disclosure and transparency accompanying its execution protocol is cause for concern and has precluded us from conducting a meaningful review.”
In Ringo v. Roper, an en banc panel denied a prisoner’s motion for stay of execution. Kelly joined a dissenting opinion, which objected to the nature of Missouri’s execution process. The concern was that Missouri administers a large dose of sedative before prisoners’ death warrants go into effect. To the dissenters, this violates the Eighth Amendment’s probation against “proceeding with an execution at a time when a prisoner is incompetent . . . unaware of the punishment they are about to suffer and why they are to suffer it.” Kelly’s other death penalty cases were Winfied v. Steele, Middleton v. Roper, and Taylor v. Bowersox.
Beyond these cases, Kelly has shared few of her personal views on the law while on the Eighth Circuit. Nor does she have a revealing track record of legal scholarship. Her Senate questionnaire lists the following published works, all dating from her pre-law days: “Expected Gain in Body Mass and Onset of Menarche,” “Tracking Relative Weight in Subjects Studied Longitudinally from Ages 3 to 13 Years,” and “Comparison of United States and New Zealand Children’s Body Mass Scores.”
[Correction: An earlier version of this post indicated that Kelly became an assistant federal public defender in Cedar Falls, Iowa, not Cedar Rapids.]