Soon, a progressive judicial group advocating for court reform will release a list of potential nominees for the Supreme Court that they hope the Democratic presidential candidates will consider. It appears that Jane Kelly, a judge from Cedar Rapids who currently serves on the Eighth Circuit Court of Appeals and was once on Barack Obama’s short list for a Supreme Court nomination, will be among them.

Why Jane Kelly?

Kelly is 54 years old and she spent her career from 1994 to 2013 in the federal public defender’s office for the Northern District of Iowa. Federal public defenders counsel defendants who can’t provide their own defense in federal trials.

Because public defenders don’t specialize, she represented cases about a wide range of topics: drugs, firearms, immigration, fraud and money-laundering.

Since January 2013, Kelly has served on the Eighth Circuit as the only judge appointed by a Democrat currently on the court. She was confirmed by a unanimous Senate vote.

The group who singled her out, alongside other judges with backgrounds like hers, is Demand Justice, a progressive advocacy group that supports changing the political leanings of the court.

In a piece published in the Atlantic, Demand Justice co-founders Brian Fallon and Christopher Kang said Democrats should seriously consider judges like Kelly for the Supreme Court.

“In this rarified world of the Supreme Court bar, Ivy League degrees and prestigious clerkships, much more than party affiliation or legal philosophy, are the coin of the realm,” the Atlantic article reads.

Fallon and Kang argue that the Supreme Court should have more judges with backgrounds in different fields of law like labor or civil rights.

Too many judges, they say, were corporate lawyers before they got onto federal benches, which has led to more favorable rulings for corporations.

“The combination of rising corporate power and eroding legal protections for workers and consumers has resulted in a system that empowers corporations to take advantage of individuals with near-impunity,” they write.

The way to fix it, according to them, is to diversify the types of lawyers chosen for judicial positions.

“During Obama’s tenure, he emphasized the promotion of racial and gender diversity on the bench––an essential goal toward which he made historic strides,” the article reads. “The next Democratic president should build on these gains by prioritizing not just demographic diversity but also professional diversity.”

What Happened During The 2016 Election Cycle

Kelly was considered for a Supreme Court position before.

Justice Antonin Scalia died in February 2016 and Kelly’s name was suggested along with four others, including Merrick Garland, who eventually got the nomination. President Barack Obama interviewed Kelly in early March.

Garland never got close to the seat. Senate Republicans, led by Mitch McConnell and Chuck Grassley, refused to hold a hearing for a new Supreme Court justice. They argued it was too close to an election and the president elected in 2016 should choose the nominee.

If a list of potential justices sounds familiar, it’s because Republican judicial organizations did the same thing during the 2016 campaign.

In May, Donald Trump released a list of 11 judges he would consider for the Supreme Court. Some of the judges were suggested by the Heritage Foundation, a conservative think tank in Washington, D.C. While it isn’t abnormal to talk about potential justices, committing to a list was unusual.

For a long time, conservatives have paid close attention to the courts in America. Since Trump’s election, the Heritage Foundation has continued to play a role, along with the Federalist Society for Law and Public Policy, a conservative nonprofit seeking to reform the legal system so it favors originalist legal interpretations.

The Progressives’ Turn

Alliance for Justice, a progressive judicial advocacy group, is also currently working on a list of judges for federal positions. The project is called Building the Bench and AFJ has said it’s considering people who have had careers in field like civil rights and criminal justice for positions.

Building the Bench is focused on district and circuit court seats where judges are eligible for senior status and their seats might open up.

In the Atlantic article, Fallon and Kang said keeping Trump from nominating more judges isn’t enough, and Democrats have to commit to changing the philosophy of the Court with the justices themselves.

“A career representing indigent defendants or working as a civil-rights lawyer at a public-interest organization should be an asset in progressive circles, not a liability,” they write. “Republicans aggressively promote judicial nominees who have worked at right-wing advocacy organizations or who have advanced conservative causes, while Democrats unilaterally eschew the political fights that come with such picks. The next Democratic president must break this mold.”

by Nikoel Hytrek

Posted 8/23/19