Potential Supreme Court nominee Jane Kelly is being smeared.

The Smear Campaign Against Potential SCOTUS Nominee Jane Kelly Is an Attack on the Constitution

The Smear Campaign Against Potential SCOTUS Nominee Jane Kelly Is an Attack on the Constitution

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March 14 2016 2:04 PM

The Smear Campaign Against Potential SCOTUS Nominee Jane Kelly Is an Attack on the Constitution

Screen Shot 2016-03-14 at 2.21.21 PM
A screenshot from the Judicial Crisis Network’s ad smearing Judge Jane Kelly for representing a child molester in the course of her duties as a public defender.

The Judicial Crisis Network/YouTube

There are few constitutional provisions more important than the Sixth Amendment’s guarantee of a right to defense counsel. That civil liberty, which applies even for indigent defendants who can’t afford their own attorney, is the cornerstone of the United States criminal justice system and a critical component of due process. In the legal community, it’s understood that criticizing an attorney who defends an unpopular defendant—especially a public defender assigned to an impoverished client—is inappropriate, offensive, and unprofessional. Public defenders who represent disreputable defendants are fulfilling the requirements of the Constitution; to condemn them for doing so is, in a very real sense, to condemn the Sixth Amendment itself.

But in the brewing nomination fight over a replacement for Antonin Scalia on the Supreme Court, the Judicial Crisis Network has thrown that long-held understanding out the window. An arch-conservative group lobbying congressional Republicans to block any Obama nominee, the JCN has begun preemptively smearing names on the president’s Supreme Court shortlist. Recently, JCN chief counsel Carrie Severino penned a reprehensible article in National Review targeting Jane Kelly, a federal judge who previously served as a public defender and has been discussed as a potential Scalia replacement. Severino highlighted Kelly’s defense of Casey Frederiksen, a convicted child molester who was accused of child pornography possession. Kelly helped negotiate a plea deal for Frederiksen, in part by noting that his psychologist believed he was not a threat to society. In other words, she did her job.

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Severino’s post implies that, by fulfilling her constitutionally designated role as Frederiksen’s appointed attorney, Kelly deceptively attempted to spring a dangerous predator onto the streets. A new ad by the JCN takes this message a step further, insisting that Kelly’s work representing Frederiksen disqualifies her from the Supreme Court. “As a lawyer she argued that her client, an admitted child molester, wasn't a threat to society,” the ad tells us in ominous tones. “That client was found with more than 1,000 files of child pornography and later convicted for murdering and molesting a 5-year-old girl from Iowa. Not a threat to society? Tell your senator, Jane Kelly doesn't belong on the Supreme Court.”

This ad is morally repugnant and ethically vile. What makes matters worse is that Severino, the author of the campaign against Kelly, is extremely smart: She graduated from Harvard Law School and clerked for Supreme Court Justice Clarence Thomas. Severino surely knows that some of America’s most revered leaders have represented equally unsavory clients—from John Adams, who defended the British soldiers behind the Boston Massacre, to Abraham Lincoln, who represented multiple accused murderers. (Lincoln’s last murder case occurred just a year before he was elected president; he successfully cleared his client of the charges against him.)

In other words, a student of legal history like Severino should surely know better than to initiate such a crass, wildly dishonorable attempt to vilify Kelly. The JCN and its congressional allies can attack Obama’s potential nominees for their public statements, judicial philosophies, and even their previous rulings. But to impugn them for vindicating the Sixth Amendment’s promise of a fair trial for all isn’t just inappropriate: It’s a shameful attack on the Constitution itself.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.