The Supreme Court Could Use A Good Public Defender

Judge Jane Kelly is still available, should the next president be listening.
Kelly spent nearly two decades ensuring the poor's right to counsel.
Kelly spent nearly two decades ensuring the poor's right to counsel.
Liz Martin/The Gazette via Associated Press

Once a Supreme Court nominee is chosen, the public quickly forgets the people not picked. But now is actually a good time to focus on someone who almost got the nod: Judge Jane Kelly.

It's a good time because Kelly represents a critically important, but often overlooked -- and always underfunded -- part of our criminal justice system.

Friday is National Public Defense Day, which celebrates the anniversary of the Supreme Court's March 18, 1963, decision in Gideon v. Wainwright. That landmark ruling established the right to counsel for indigent persons accused of crimes in state courts.

As the Supreme Court explained:

"From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."

Because of her history, Kelly likely understands what it means to a poor person to have a lawyer better than most people.

In 1991, she graduated in the same Harvard Law School class as President Barack Obama. She could've sought wealth and prestige at a big law firm or started up the ranks of government service by becoming a federal prosecutor -- two common paths for those graduating from top-flight law schools.

Instead, Kelly decided to stand up for poor people. Following back-to-back clerkships with federal judges -- which also looks great on a young lawyer's résumé -- she went to work as a public defender in the Northern District of Iowa. She served there for nearly two decades, until her former classmate, Obama, nominated her to an appellate judgeship in 2013.

Kelly didn't get the Supreme Court gig this time, but maybe next time she will. Voices like hers are needed at the high court -- not just because there's a dearth of real-life trial experience among the justices, but because the rights of the most powerless are perpetually under siege.

There's a certain hard-won wisdom that comes with the daily grind of representing people -- meeting with them and their worried families, going to court or the jailhouse again and again, urging the judge to lower your client's bail, pleading for a lenient sentence, not winning and seeing what that means for a person already at the bottom of America's ladder. For many people, the public defender is the only line of defense against a system where the cards are stacked against them.

Kelly's own commitment to defending others was tested in 2004, when she spent months recovering from a brutal attack that nearly killed her. The crime remains unsolved.

"It's easy to lose compassion," she told The Des Moines Register several months after the attack. "But the problem is bigger than who committed the crime."

Then-Sen. Tom Harkin (D-Iowa), who recommended Kelly for the appellate judgeship, told the newspaper that the incident said a lot about Kelly's nature.

"After having that happen to her, she went right back to work sticking up for the constitutional rights of people accused by the federal government," he said. "To me, that was a mark of real character and sort of inner strength and resolve that something like that was not going to make her throw in the towel."

During her confirmation hearing in 2013 -- before the Senate confirmed her unanimously -- Kelly spoke more about what has driven her life's work.

"As a criminal defense attorney, I am often representing someone who, shall I say, is not the most popular person in the room," she said. "So I, as much as anyone, know how important it is to be fair and impartial and make decisions based on things other than bias, favor or prejudice."

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