The War Against Obama’s Potential Supreme Court Nominees Takes An Ugly, Offensive Turn

CREDIT: AP Photo/Diane L. Wilson

The gravestone of Clarence Earl Gideon, whose victory in a 1963 Supreme Court case recognized "the fundamental right of the accused to the aid of counsel in a criminal prosecution."

We do not yet know who President Obama will name to succeed the late Justice Antonin Scalia. We do know, however, that anyone the president names will be subjected to a brutal campaign to discredit them in the eyes of the public. A conservative advocacy group called the Judicial Crisis Network (JCN) reportedly hired “a team of about 10 researchers, including a number of lawyers” to conduct opposition research into potential nominees.

Viewers watching Sunday morning’s news shows got a taste of what these researchers have uncovered this past weekend. An ad funded by JCN attacked federal appellate Judge Jane Kelly, a potential Supreme Court nominee and former public defender, for representing one of her former clients:

The ad adopts a familiar strategy, last used to defeat President Obama’s nomination of Debo Adegbile to lead the Justice Department’s Civil Rights Division. Adegbile previously was a senior attorney at the NAACP Legal Defense Fund — eventually rising to become its acting President and Director-Counsel. During that time, he represented a well-known death row inmate convicted of killing a police officer. Because the state of Pennsylvania used an unconstitutional process to sentence this inmate to die, a federal appeals court tossed out his death sentence.

Abegbile’s opponents later used the civil rights attorney’s involvement in this civil rights case to convince senators that he was unfit to run the Civil Rights Division.

The inmate described in JCN’s ad is Casey Frederiksen, who Kelly represented in 2005 during her career as a public defender. Frederiksen is unquestionably a terrible human being. Kelly represented him in a federal child pornography trial after he was accused of possessing over 1,000 such images and movie clips. Years after his conviction on these child pornography charges, and while he was still serving prison time for this federal conviction, Frederiksen was arrested, tried and convicted of killing a 5 year-old girl. (Kelly did not represent Frederiksen in this state proceeding.)

Judge Jane Kelly

Judge Jane Kelly

In the United States, however, criminal trials are governed by the Constitution, and that Constitution guarantees all people accused of a crime “the assistance of counsel for his defense.” So JCN’s ad is more than just an attack on Jane Kelly. It is an attack on a constitutional right.

Mr. Frederiksen committed horrible offenses. But in this country, our Constitution does not permit the state’s awesome power to lock someone away in prison to be brought to bear upon anyone until they have received an adequate defense. Before becoming a judge, Kelly spent her career helping ensure that this oft-ignored right means something.

A few more words should be said about Judge Kelly, and about the likely impact of attack ads like the one that ran on Sunday. Kelly is an honors graduate of Harvard Law. She began her career with two prestigious clerkships for federal judges. These are the kinds of credentials that enable young lawyers to earn well into the six figures before they reach the age of 30. Jane Kelly turned that lifestyle down. And she did so to provide a service guaranteed by our Constitution.

When groups like JCN make villains out of people who make this choice, it discourages others from following in Kelly’s footsteps. And our constitutional rights will suffer as a result.