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March 3, 2016

Why I am tempted now to call two federal judges who were formerly federal public defenders "front-runners" for a SCOTUS nomination

In this post two weeks ago, I sort-of started complaining about Prez Obama taking "so long" to name a SCOTUS replacement for the late Justice Antonin Scalia, but then I speculated that the Prez was waiting for some political developments and just the right political moment to name just the right nominee.  In the wake of this week's political events (aka Super Tuesday and its aftermath), and also the big Supreme Court argument about abortion rights (How Appealing coverage here), I think the time is now becoming right for Prez Obama to name one of the two former federal public defenders who are now federal judges that I have previously discussed in this space:  Eighth Circuit Judge Jane Kelly or DC District Judge Ketanji Brown Jackson.

Notably, this new New York Times piece reports that Judge Kelly is being vetted by the White House, and this National Law Journal story from last week reported that Judge Brown Jackson was also being vetted.  Of course, last week around this time we heard from the White House that Nevada Gov Brian Sandoval was being vetted, and that ultimately proved to be something of non-starter (or perhaps even a head-fake).  But this time around, I believe talk of vetting these judges is serious, and I especially think Prez Obama may be strongly drawn to both of these potential nominees because (1) they both served as federal public defenders, and Prez Obama has said he wants criminal justice reform as part of his legacy, and (2) they have both recently received unanimous support during prior confirmation hearings and had a notable GOP leader expressing strong support for them.

Though I know I am biased here because of my interest in criminal justice reform and lots of time spent with public defenders, I read Prez Obama's recent SCOTUSblog posting as something of a signal that he may be interested in appointing someone who had represented the poor or otherwise disadvantaged.  Specifically, Prez Obama said that, in addition to seeking to appoint someone "eminently qualified," he wanted (with my emphasis added):

[S]omeone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law.  I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand....

[And] the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times.  That, I believe, is an essential element for arriving at just decisions and fair outcomes.

Of course, one can readily say that a person with impressive credentials who had once served as a state or federal prosecutor or Justice Department official would have a commitment to impartial justice and a keen understanding that justice is not about abstract legal theory.  But, critically for purposes of my theory that Prez Obama will be drawn to appoint a former federal public defender like Eighth Circuit Judge Jane Kelly or DC District Judge Ketanji Brown Jackson, the last four SCOTUS appointments were all impressively credentialed individuals who had served as a state or federal prosecutor or Justice Department official.  Specifically, Chief Justice Roberts had worked for DOJ, Justice Alito had been US Attorney for New Jersey, Justice Sotomayor was a New York state prosecutor, and Justice Kagan was Solicitor General.  Prez Obama may think, and he certainly could make the case, that SCOTUS now has plenty of Justices who know what it is like to be a "real world" lawyer making arguments on behalf of the government, but it would benefit now from having a "real world" lawyer who worked on behalf of the poorest individuals making arguments against the federal government.

I could go on and on about why I think a (post-Baby Boomer) female nominee would be an especially shrewd choice right now when the Democrats appear poised to nominate the first female candidate for Prez (who is a Baby-Boomer) and the GOP has a whole lot of males of all ages yelling at each other about who is best to "beat" that female candidate.  But what I think make these two Judges especially appealing is the unanimous support they received from the Senate when their prior nominations were considered.  That unanimous support would enable Prez Obama to say forcefully that GOP leaders in the Senate ought to at least have the courtesy to meet with the nominee and hold a hearing as part of their "advise and consent" responsibilities.  I am not confident that GOP leaders will extend that courtesy in this political environment, but the unfairness of being unwilling to do so will be extra stark when they are shutting out someone unanimously approved in the past.

One last self-serving nugget of sentencing fun here: I suspect recent federal public defenders, and perhaps only federal public defenders, could honestly say that a few legendary criminal justice opinions authored by Justice Scalia, opinions like Kyllo v. United States, Crawford v. WashingtonBlakely v. Washington, and Johnson v. United States, are among their all-time favorite.

Thought, dear readers, on my latest SCOTUS musings?

Prior related posts on new SCOTUS nominee possibilities:

March 3, 2016 at 03:36 PM | Permalink


Spring Training began. Time for Obama to nominate someone.

Judge Jane Kelly would be my choice.

Posted by: Joe | Mar 3, 2016 4:20:05 PM

Three cheers for Federal Public Defenders! The lawyer in Kyllo was Ken Lerner, a former federal public defender. The lawyers in Johnson were federal public defenders. Your truly was a federal public defender in three different jurisdictions! Doug, either of the two former defenders being vetted would make a superb justice. Go Obama!!

Posted by: Michael R. Levine | Mar 3, 2016 4:47:45 PM

Federal public defenders rock!

Posted by: observer | Mar 3, 2016 4:50:54 PM

I'm never a fan of nominating District Court Judges directly, so Judge Kelly would be my preference (although it would be a stronger argument if Judge Kelly had gone to District Court first). I think the President could get some public support through her story. I don't know her voting record, but her Circuit isn't overly liberal and isn't noteworthy for being reversed often. She graduated Harvard (her classmate might cause some controversy, though).

Posted by: Erik M | Mar 3, 2016 5:38:37 PM

"her classmate might cause some controversy, though"

that guy is always getting in trouble

Posted by: Joe | Mar 3, 2016 7:37:25 PM

If not a former federal public defender then at least a jury trial lawyer. Of the 8 now, all are Harvard and Yale and none have ever visited a jail.

Posted by: Liberty1st | Mar 4, 2016 5:30:10 PM

The 8th Circuit judge would be very good. I hope she did not go to Harvard or Yale though.

Posted by: BarkinDog | Mar 7, 2016 9:33:17 AM

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