GOLDEN MEAN

03.04.16 7:20 PM ET

Likely Supreme Court Nominee Judge Jane Kelly Is a True Moderate

Tough on crime, but not always; tough on immigrants, but not always; Judge Kelly is boring and centrist in all the right ways.

Judge Jane Kelly, now being vetted by the Federal Bureau of Investigation as a potential Supreme Court nominee, has emerged as a leading contender to replace the late Justice Antonin Scalia.

Kelly may have the best chance of any nominee: she was confirmed to the Eighth Circuit Court of Appeals in 2013 by a 96-0 vote; she is from Iowa, home state of Republican Charles Grassley, chairman of the Senate Judiciary Committee Chair; and Grassley himself has praised her effusively in the past.  All that may make it harder for Grassley to honor his pledge not to hold hearings on a potential Supreme Court Justice, in defiance of custom and constitutional law.

But what does Judge Kelly believe?

There’s not much to go on.  Prior to becoming a judge, Jane Kelly served as a public defender for 17 years, which afforded few opportunities for making public statements on the finer points of jurisprudence.

But she has been an appellate court judge for the past three years, and during that time has written 82 opinions for the court.  Over the past week, I have read and reviewed all of them.  And what emerges is, as her reputation suggests, a moderate, thoughtful jurist without ideological biases, though with a slight tilt to the conservative side of some issues.

Now, a word of caution: These opinions only give hints.  In 80 of the 82 cases, Judge Kelly was writing for a unanimous three-judge panel, not simply for herself.  Often, such opinions represent a consensus view more than an individual one: The rhetoric and scope of opinions are often adjusted to gain the assent of colleagues. 

Moreover, about half of the 82 cases are garden variety criminal appeals, contract disputes, insurance claims, and the other mundane cases that make up the bulk of an appellate court’s workload. (There’s a rent dispute involving Smuckers, a former salesman suing Farmers Insurance.)  Most of this has nothing to do with the contentious issues to which Supreme Court watchers pay attention—indeed, that’s even true of the Supreme Court itself.

But there are some interesting findings.

First, the overwhelming majority of criminal appeals that Judge Kelly wrote the opinions for were rejected. This does not necessarily mean Judge Kelly is “tough on crime.”  The national reversal rate for criminal appeals is only 7 percent, which makes sense, given the heightened standards of review at the appellate level. It does suggest that Judge Kelly is not disproportionately disposed toward criminal defendants as a result of having been a career public defender.

Still, there were some close cases that did suggest a “tough on crime” perspective. For example, in U.S. v. Axsom, the Eighth Circuit affirmed a 15-year-jail sentence for a child pornography conviction stemming solely from 15 images traded on Limewire (a peer-to-peer technology where batches of files may be shared without an individual’s knowledge of what’s inside). 

In another child porn case, the court affirmed conviction even though the state showed five minutes’ worth of images to the jury, an act which had no evidentiary value but likely disgusted and prejudiced the jurors. It’s easy to imagine these two cases going the other way under a more liberal judge.

When it comes to police conduct, Judge Kelly again appears to be a centrist.  Most of her Fourth Amendment opinions (US v. Meidel, Fagnan v. Lino Lakes, Greenman v. Jessen, US v. Guevara, Yang v. Roy, US v. Thompson) find for the police and against defendants complaining of unconstitutional search or seizure.  Again, that is usually the case.

But there are some exceptions. 

In Peterson v. Kopp, Judge Kelly wrote an opinion granting immunity to an arresting officer for most of his actions, but not for pepper-spraying a defendant who asked to see his badge. That, Judge Kelly wrote, was a First Amendment violation. And in Ziesmer v. Hagen, the appeals court overturned a lower court opinion and allowed a police officer to be sued for injuring someone pulled over at a roadside stop, in an arrest that led to no criminal charges. In these cases, one might imagine a more conservative judge siding with police.

When it comes to hot-button issues that would come up in nomination hearings, Judge Kelly’s record is also right up the middle.

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In Jackson v. Nixon, Judge Kelly wrote a 2-1 opinion upholding an atheist prisoner’s claim that being effectively forced to participate in an Alcoholics Anonymous-like substance abuse program violated his First Amendment rights to be free from religious coercion. (A similar appeal from a Native American objecting to a 12-step program was rejected, but mostly on procedural grounds.) 

This could be read in several ways. Though the petitioner is an atheist, this is actually a conservative-style, pro-religious-liberty holding, not unlike the recent Supreme Court case of Holt v. Hobbs, which required an Arkansas prison to let a Muslim prisoner grow a half-inch-long beard. In terms of the current debates over religious liberty and civil rights laws, Jackson is on the side of individual religious liberty (here, to be free of religious coercion) over a particular public policy (in this case, the rehab program).

On the other hand, affirming an atheist’s First Amendment rights to be free from the relatively anodyne spirituality of 12-step programs could also be read as extremely liberal. Is the program’s suggestion to substitute “Good Orderly Direction” for the word “God” really religious coercion? Whether Jackson is a conservative or liberal opinion depends on how you look at it.

On another hot-button issue, immigration, Judge Kelly wrote eight opinions on deportation appeals, affirming seven of them. While, again, standards of review favor upholding the decisions of immigration officials, no one could argue that Judge Kelly is soft on illegal immigration. She affirmed the deportation of a former child slave from Mexico, a Chinese woman fearing reprisal for having three children, and a victim of gang violence (PDF).

Of the eight deportation appeals, the only one Judge Kelly wrote to remand was from an individual who had the help of a fraudulent assistant (PDF). Here, Judge Kelly wrote, the entire application should not have been dismissed simply because the preparer was a liar.

Finally, Judge Kelly wrote a contentious 2-1 opinion in the case of US v. Fast Horse (the Eighth Circuit has jurisdiction over several Native American lands). In that case, Judge Kelly reversed a conviction for sexual assault, because the defendant may not have known that his victim couldn’t consent. Judge Steven Colloton filed an angry dissent. 

Even here, however, the tea leaves can be read in opposing ways.  On the one hand, this is an opinion that makes it harder for women to prevail against sexual predators, which might anger some liberals. On the other hand, it sides with  a criminal defendant over the state, which might anger some conservatives. 

Perhaps most notably, Fast Horse relied on a particular (and controversial) Eighth Circuit precedent regarding the intent necessary to prove a rape claim: that the defendant must know the victim did not, or could not, consent. (The dissent attacked this court for “vacat[ing] yet another conviction of a sexual aggressor who engaged in sexual intercourse with a woman who was passed out or asleep.”) This is interesting because judicial nominees often use pat phrases like “I would follow Supreme Court precedent” to avoid answering questions about abortion. Here, however, is an appellate judge actually doing it: applying a precedent which some might find dubious, because it is the controlling law in the case.

Now, that could apply to Roe v. Wade but also to Citizens United. Which, finally, is the point. Over the course of 82 opinions, Judge Kelly emerges as a thoughtful centrist who would disappoint ideologues on the left and the right. There is no consistent bias in her opinions, and the fact that they may be read in multiple ways attests (for better or for worse) to their centrism.

Contrary to Ted Cruz’s outrageous statement at last night’s GOP debate that anyone Harry Reid supports must be a constitutional liberal, Judge Kelly’s record, to the extent it can be interpreted, suggests judicial moderation. It may not matter in today’s Senate, but if President Obama is looking for a consensus candidate, it’s hard to imagine a better one. Jane Kelly’s opinions are boring in all the right ways.