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Why The Confirmation Of An Outstanding Judge Still Proves The Senate Is Terrible

By Ian Millhiser  

"Why The Confirmation Of An Outstanding Judge Still Proves The Senate Is Terrible"

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Judge Jane Kelly, who was unanimously confirmed to the United States Court of Appeals for the Eighth Circuit yesterday, is among President Obama’s most outstanding nominees. She graduated from Harvard Law School, clerked for a U.S Court of Appeals judge, and then spent the rest of her career in public service working as a public defender. She’s also young. Young enough that she could be a potential Supreme Court nominee for at least two full presidential terms. In other words, she’s exactly the sort of nominee Senate Republicans love to filibuster — a brilliant attorney with a left-leaning resume who could someday be nominated to the Supreme Court of the United States.

As it turns out, however, obstructionism can be overcome if the right person writes a letter on your behalf to the highest ranking Republican on the Senate Judiciary Committee:

With [Sen. Chuck] Grassley in a University of Iowa Hospital bed, a Republican county chairman and small-town lawyer named David Hansen went out and campaigned for him, the senator explained at Kelly’s confirmation hearing in February. “And you know, you don’t find county chairman doing that that often in our state,” Grassley said. “I won that primary and won that election obviously, and he gets all the credit for it.”

Once in office, Grassley remembered the effort. Grassley says he twice suggested Hansen for federal bench positions: first to the U.S. District Court for the Northern District of Iowa during the Reagan administration and then to the Eighth Circuit during the George H.W. Bush administration. “He’s been a friend of mine as well,” Grassley said of Hansen, now an Eighth Circuit senior judge, on the Senate floor Wednesday.

The connection to Kelly’s nomination: She clerked in the Eighth Circuit for Hansen during 1992 and 1993. Hansen sent Grassley a hand-written note supporting Kelly, noting that she has an “exceptionally keen intellect” and “will be a welcome addition to the court if confirmed.”

Now, let’s be clear. It is fantastic news that Kelly is now a judge. Beyond the fact that she is talented and that she adds another name to the short list of potential Supreme Court nominees in a Democratic administration, former public defenders are very rare on the federal bench (by contrast, President Obama nominated 100 former prosecutors to be federal judges). Judge Kelly earned her seat on the U.S. Court of Appeals through hard work and solid legal work, and the fact that her former boss testified to her “exceptionally keen intellect” is just one more data point demonstrating that she belongs on the bench.

But a person shouldn’t have to be friends with a guy who is friends with Chuck Grassley in order to avoid a grueling confirmation process. Thanks in large part to Grassley’s intervention, Kelly was confirmed just 83 days after her nomination. The average even for uncontroversial Obama nominees is 272 days. And, of course, it remains likely that a person with Kelly’s credentials would have been filibustered if it were not for her former boss’ connection to Grassley — just as other, potential future Supreme Court nominees have been filibustered in the past.

Ultimately, however, the arbitrariness of Senate obstructionism does not have to remain a reality forever. Senate Democrats can eliminate this problem by changing the filibuster and “blue slip” rules that allow a minority of the Senate to block exceptionally qualified judicial nominees.

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