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May 16, 2013

As notable new face joins Eighth Circuit, will court do better with SCOTUS on sentencing issues?

Jane KellyThanks to How Appealing,I just saw this interesting new AP profile of the interesting new judge on the Eighth Circuit.  The article is headlined "Jane Kelly's experience rare on US appeals court," and here are excerpts:

Jane Kelly will become a federal appeals court judge Friday with an unusual background that supporters say makes her a perfect fit for the job and a potential U.S. Supreme Court candidate someday.

The 48-year-old attorney has spent her career as a public defender representing low-income criminal defendants, a rarity in the ranks of appeals court judges who are often former prosecutors and trial judges. She'll become just the second woman in the 122-year history of the 8th U.S. Circuit Court of Appeals, which handles cases in seven states from Arkansas to the Dakotas.

Kelly, who's worked at the federal public defender's office in Cedar Rapids since 1994, graduated from Harvard Law School in the same 1991 class as President Barack Obama. But her appointment was far from patronage. She had so much support that her confirmation received a 96-0 vote in the Senate less than three months after she was appointed, speedier than any other circuit judge nominated by Obama. She also is the survivor of a 2004 beating on a popular jogging trail that left her hospitalized for weeks and shook Cedar Rapids.

Associates say she is a smart legal thinker who has zealously defended the rights of even the most publicly despised clients, including a notorious mailbox bombing suspect and the biggest white-collar criminal in Iowa history. Even prosecutors who disagreed with her in court praise Kelly, who will take the oath of office privately.

"Her story is compelling all the way around," said Debra Fitzpatrick of the University of Minnesota-based Infinity Project, which advocates for more women on the 8th Circuit. "Her credentials and her background and her career sort of set her up to be the right candidate at the right time."

If a Supreme Court justice retires during Obama's second term, Kelly could get mentioned as a potential nominee. Her supporters say they expect her to shine on the circuit, which has 11 active judges and hears 3,500 appeals a year. The lifetime appointment pays $184,500 annually.

Iowa Sen. Tom Harkin, a Democrat, recommended Kelly to Obama to replace retiring Judge Michael Melloy after she rose above an "outstanding" pool. He said she would be the first career public defender on the circuit, bringing "a critically important perspective." Iowa's other senator, Republican Chuck Grassley, ranking member on the judiciary committee, helped convince colleagues to move Kelly's confirmation quickly. Grassley said he supported Kelly because she received a glowing endorsement from respected retired judge David Hansen of Iowa, appointed to the circuit by President George H.W. Bush.

Kelly, Hansen's clerk from 1992 to 1993, was a persuasive writer and debater who often argued opposing viewpoints to help him flesh out cases, Hansen said. "She's a delight to be around, and I predict a very bright future for her in the federal judiciary," Hansen said. "She isn't going to have any trouble intellectually with the work because she has a brilliant legal mind."

Kelly, who did not respond to an interview request, received friendly questions and praise at her confirmation hearing. She said her background gives her a "broader view" of the challenges facing defendants but that she'd need to get up to speed on civil matters. She introduced her partner, Tom Lidd, who has credited Kelly with helping inspire and edit his book about Iowa football legend Nile Kinnick.

A long-distance runner, Kelly's life almost ended when she went for a morning jog on the Cedar River Trail in June 2004. She was tackled and beaten by a male stranger, then dragged to a creek and left for dead. Passersby found Kelly in a pool of blood, in and out of consciousness and struggling to call for help. Speculation swirled that the attack was linked to Kelly's legal work, but no one ever was arrested.

Kelly quickly returned to representing criminal defendants after spending months in recovery. Her colleagues gave her the John Adams Award, which recognizes an Iowa lawyer's commitment to the constitutional right to criminal defense. And hundreds gathered one year later for a "Take Back the Trail" event, where Kelly jogged there again for the first time.

Kelly grew up in Newcastle, Ind., and graduated from Duke University in 1987. She earned a Fulbright scholarship to study in New Zealand before enrolling at Harvard, where she and Obama were acquaintances but not friends. She clerked for U.S. District Judge Donald Porter in South Dakota and then for Hansen.

She taught one year at University of Illinois law school before returning to Iowa as one of the first hires for the new public defender's office. She's been a fixture ever since, often representing "not the most popular person in the room," as she put it in her confirmation hearing, including drug dealers, pornographers and con artists.

As long-time readers and sentencing gurus likely know, many of the most notable modern SCOTUS sentencing rulings involved reversals of Eighth Circuit decisions.  In just last few years alone, the defendants in Pepper, Spears, Greenlaw, and Gall all lost on sentencing issues in the Eighth Circuit prior to reverals in the Supreme Court.  Indeed, I have long speculated that some Justices take an extra long look at some of the sentencing decisions that emerge from that circuit.  I suppose only time will tell if and how these federal sentencing law patterns, and the broader criminal justice jurisprudence of the Eighth Circuit, change at all in the months and years ahead now that a fresh new face with a fresh new perspective has joined that august court.

May 16, 2013 at 05:30 PM | Permalink


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Such a classic DC story. Grassley convinces colleagues to push a public defender on appeals court today. Tomorrow he will rail against liberal judges.

Posted by: Thinkaboutit | May 17, 2013 12:28:39 AM

The CCE indoctrination of Harvard Law School beat out severe personal victimization. She learned nothing about the nature of her customers, picked up where she left off. Naturally, she likely survived thanks to trauma care enhanced by military experience, from wars she likely opposed. And now, she will cancel the common sense decisions of her Circuit, and side with the Washington DC fellow Harvard Law School indoctrination victims on the Supreme Court.

It is high time to exclude the lawyer from all benches. Judging is at least as difficult as cutting hair. It should require 2000 hours of training, an exam, and a license.

Posted by: Supremacy Claus | May 17, 2013 2:14:30 AM

A superb appointment! Congratulations to the President and the Senate!

Posted by: Michael R. Levine | May 17, 2013 12:01:47 PM

Supremacy Claus,

It is unfortunate that you and your ilk (such as Bill Otis) are permitted to pollute what is generally a forum for interesting and thoughtful discussion with retrograde sarcasm. This is obviously a positive development and brings some much needed new perspective to the Eighth Circuit, which has made more than its share of contibutions to the vastly over-punitive nature of our federal sentencing system. As to the crack about victimhood, it is refreshing to see a crime victim evidence class and progressive thinking and refuse to join the culture of vinditiveness in the name of "victims rights" that has done so much to warp our sentencing system. It is always telling to me that highly-educated, sophisticated victims tend to be less vindictative than their lessers who expoit their pain in furtherance of a throw-away-the-key approach that only inflicts needless pain on others.

Posted by: Mark | May 17, 2013 12:10:37 PM

Mark: I accept and respect your views. We have no dispute.

I would just remind the lawyer traitor of the 17,000 extra-judicial executions a year, and of the 5 million victims of violent crime this internal traitor allows by coddling and protecting his ultra-violent, mostly bastard, predators. All this suffering is to protect a few lousy lawyer jobs. The lawyer hierarchy must be arrested, receive an hour's fair trial, and then get summarily executed in the court basement, for their insurrection against the constitution.

Question for you. Do you believe that being a judge is an easy or a harder job than being a cosmetologist? The person who cuts my hair had to undergo a 2000 hour course of study, pass a 200 question examination, and cut the hair of three types of people in front of licensing officials. Shouldn't judging require at least the same training, exam, and licensing as cutting hair? Why is this VFL in any way qualified to decide questions of life, and transfers of $billions from the productive to the parasite client of the lawyer? She is not qualified. She knows nothing about nothing. She is a mental cripple, to quote Prof. Berman about an elected legislator, an idiot.

Posted by: Supremacy Claus | May 18, 2013 1:31:47 AM

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