Biden Tips Obama’s Hand On the Choice for the Supreme Court Nomination. (I’m not unhappy about the selection.)

Obama’s choice to replace Scalia, it appears from Biden’s comments this morning, will be Jane Kelly, whom Obama appointed to the Eighth Circuit Court of Appeals, based in St. Louis, in 2013.

Josh Lederman of the Associated Press reports:

WASHINGTON (AP) — President Barack Obama is looking to nominate a Supreme Court candidate who has enjoyed past Republican support, Vice President Joe Biden said, offering some of the first indications of the president’s criteria in replacing the late Justice Antonin Scalia. …

“In order to get this done, the president is not going to be able to go out — nor would it be his instinct, anyway — to pick the most liberal jurist in the nation and put them on the court,” the vice president told Minnesota Public Radio. “There are plenty of judges (who) are on high courts already who have had unanimous support of the Republicans.”

President Barack Obama is looking to nominate a Supreme Court candidate who has enjoyed past Republican support, Vice President Joe Biden said, offering some of the first indications of the president’s criteria in replacing the late Justice Antonin Scalia. …

Although the White House hasn’t publicly disclosed any candidates Obama is considering, he’s expected to look closely at a number of circuit court judges — including some that meet the benchmark that Biden laid out. Sri Srinivasan, who sits on the U.S. Court of Appeals for the District of Columbia Circuit, was confirmed 97-0 less than three years ago by the Senate, which also unanimously confirmed Jane Kelly in 2013 to the St. Louis-based Eighth Circuit.

Minnesota is part of the Eighth Circuit. And Kelly, who was an assistant Federal Public Defender in the Northern District of Iowa for 19 years before her appointment to the Eighth Circuit, all but the first five years as the Supervising Attorney in the Cedar Rapids, IA office, notably—it is noted each time her name is mentioned as a possible nominee—received the strong support of Charles Grassley, then the ranking Republican of the Senate Judiciary Committee and not its chairman.

Biden’s choice of local radio station for that interview may be coincidence.  Or it may not be.

Kelly joined the Federal Defender’s Office after completing clerkships for a federal trial judge in South Dakota and an Eighth Circuit judge.  She apparently has never been in private law practice, and also has never worked in government other than in those positions, and never represented a government as an attorney; as an assistant Federal Defender, she opposed the federal government in criminal cases.

Obviously, Obama reads Angry Bear.

No, Kelly was not on my three-person list of preferred nominees.  But all three of my preferences are men, and because Kelly would be replacing a man, that will free President Sanders to nominate one of them to replace Ruth Bader Ginsburg.  Who is a woman.  (It would free a President Hillary Clinton to that, too, but as a practical matter they all will be out of the running unless one of them gets a sex-change operation, and really soon. Ginsburg in 83 years old.)

Luckily, she was a classmate of Obama’s at Harvard Law School. Which may be why he nominated her in 2013 to a federal appeals court, or to any court, even though she was a career public defender.  Rather than a former prosecutor.

I do have a couple of caveats about her, though.  One is that although she’s had reams of experience representing the hoi polloi in criminal cases, especially of course in drug cases, all of her experience is in federal court.  Most criminal cases are state-court prosecutions, and this is where there is rampant misconduct and framing, by police officers, prosecutors, and prosecutors’ so-called-expert witnesses.  And courtesy of a 1996 federal statute that came close to precluding federal habeas corpus review of state-court convictions—and the O’Connor/Kennedy/Thomas/Alito/Scalia/Roberts crowd’s virulently angry and inappropriately aggressive actions—the Supreme Court’s effective rewriting of that statute to make it fully, completely, totally preclude federal habeas review of state-court convictions, state judicial branches and anything that occurs in them are constitutional-rights-free zones to the extent that they want to be.

This although the Constitution’s Article I provides that “[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  For people convicted in state courts, Congress suspended that right two decades ago, at least according to the Supreme Court.  That’s a very long suspension.

So I would prefer someone who has represented criminal defendants in state courts, even though I don’t doubt at all that Jane Kelly well understands this issue.

The other caveat concerns something I’ve noticed over the course of more than a decade: The near-impossibility of obtaining meaningful appellate review in state court or in a habeas petition by female judges if the conviction occurred in a sexual assault case, although there is now a generational divide on this.  Kelly was born in 1964, and is on the young side of that female-judge generational divide.  And there now have been enough high-profile cases in which the allegation was fabricated that perhaps even some of the sisterhood judges have taken note, although I doubt it. This is simply an observation that among older female judges there is an unshakeable, irrebutable presumption of guilt that precludes genuine appellate or habeas review.

Finally, the Wikipedia entry for Kelly includes this: “In 2004, Kelly was attacked while jogging in a park in Cedar Rapids, and was brutally beaten and left barely conscious; her assailant was never identified.”

Yet Kelly did not walk away from her career as an assistant Federal Defender.

From what I know about her, which is almost entirely from Wikipedia and the short blurbs about her in media lists of potential nominees since Saturday, I will be happy if she is the nominee.

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