Whether Eighth Circuit Appeals Court Judge Jane Kelly is still on President Barack Obama’s short list for the U.S. Supreme Court vacancy is an open question. Multiple news organizations confirmed that she was under consideration for the appointment, and she remains a leading contender according to analysts like SCOTUSblog’s Tom Goldstein. Julia Edwards and Jeff Mason reported for Reuters over the weekend that the “White House has narrowed its search for a U.S. Supreme Court nominee to three federal appeals court judges, Sri Srinivasan, Merrick Garland and Paul Watford.” (This piece by Dylan Matthews contains short backgrounders on each of those judges.)

The conservative Judicial Crisis Network is taking no chances. They announced Friday a “a six-figure television and digital advertising campaign in several states exposing potential Supreme Court nominee, U.S. Circuit Court Judge Jane Kelly, as a liberal extremist.” I enclose below the video, transcript, and analysis of the 30-second commercial, which is running in Iowa because our senior Senator Chuck Grassley chairs the Senate Judiciary Committee. Part of the $250,000 ad buy also went toward airing the spot “during Sunday morning public affairs shows in Colorado, Indiana, North Dakota, Washington D.C. and West Virginia,” hoping to put pressure on potentially vulnerable Democratic senators.

The Judicial Crisis Network hit job commercial about Jane Kelly:

My annotated transcript:

Female voice-over: This is Jane Kelly. [viewer sees photo of Judge Kelly on left side of screen; words THIS IS JANE KELLY appear on the right]

President Obama may appoint her to the Supreme Court. [viewer sees an image of the Supreme Court building, with words on screen “White House Is Said to Be Vetting Iowa Judge for Supreme Court Seat” New York Times March 2, 2016]

As a lawyer, she argued that her client, an admitted child molester, wasn’t a threat to society. [viewer sees image of courtroom, then photo of Casey Frederiksen, then footage of a prison cell and with the door opening; words on screen KELLY ARGUED A CHILD MOLESTER NOT A THREAT TO SOCIETY]

That client was found with more than a thousand files of child pornography [viewer sees close-up of part of a man’s face with a computer image of a child reflected in his eyeglasses; then images of a keyboard with a hand on a mouse and computer files uploading]

and later convicted for murdering and molesting a five-year-old girl from Iowa. [viewer sees photo of Casey Frederiksen in court; words on screen “Casey Frederiksen convicted of 2005 murder, sexual abuse” the Gazette, March 10, 2005]

Not a threat to society? [viewer sees dark backdrop with words on screen NOT A THREAT TO SOCIETY?]

Tell your senator Jane Kelly doesn’t belong on the Supreme Court. [words on screen TELL YOUR SENATOR JANE KELLY DOESN’T BELONG ON THE SUPREME COURT
202-224-3121
JUDICIALNETWORK.COM

PAID FOR BY JUDICIAL CRISIS NETWORK]

I move that this commercial be introduced into evidence to demonstrate why so few public defenders end up on the bench.

Politically, it’s easier for a governor or president to appoint a prosecutor who can brag about putting horrible people behind bars. Kelly spent most of her legal career representing low-income people charged with federal crimes. Over nearly two decades in that job, who can be surprised she defended some unsavory types?

Notably, her legal work didn’t stop the Senate from confirming her unanimously in 2013.

As many commentators have pointed out, the U.S. Constitution guarantees the right to a defense in court. Kelly was only doing her job–extremely well, by all accounts.

The Judicial Crisis Network’s ad draws on a National Review column by Carrie Severino. Zachary Pleat took apart Severino’s case against Kelly in a great post for Media Matters. One particularly important point:

But in her National Review piece, Severino misrepresented a Des Moines Register article on the court case to suggest that Kelly had asserted that, in her own opinion, her client posed no threat to society:

According to a 2005 story in the Des Moines Register, shortly after Frederiksen was indicted, Kelly “argued her client was not a threat to society,” an odd assertion to make on behalf of a man who had previously been convicted of sexually molesting a different girl.

In fact, the Des Moines Register story in question shows that Kelly was presenting the view of a psychologist that her client had been seeing (emphasis added):

Frederiksen’s attorney, Assistant Public Federal Defender Jane Kelly, argued her client was not a threat to society. She said Frederiksen had been seeing a psychologist, who said that Frederiksen was not a danger to others.

When journalists asked Grassley today about this disgraceful hatchet job on Judge Kelly, the senator feigned ignorance:

“I haven’t seen the ad. The Iowa press asked me and I haven’t answered because I haven’t seen the ad,” Grassley told reporters on Tuesday afternoon.

When the ad was described to Grassley, he said: “I won’t comment on it unless I see it. And I haven’t seen it.”

Grassley praised Kelly’s work highly when urging his colleagues to confirm her to the appeals court judgeship. To justify his refusal to hold hearings on any Supreme Court nominee this year, he has said a Kelly nomination wouldn’t change his position: “It’s a matter of the principle and not the person.”

Politics, not principle, underlie the Senate Republican position on the Supreme Court vacancy. But even if Grassley had good reason to deny the president’s nominee a hearing, he should condemn the Judicial Crisis Network’s attack on Kelly. Failing to do so validates a cheap shot against all defense attorneys.

Kelly helped ensure that her clients received their fundamental constitutional right to due process. If Grassley values the Constitution, he can show it by denouncing Kelly’s critics–no matter whom Obama nominates to replace Justice Antonin Scalia.

Speaking of which, the daily calls to “do your job” appear to be getting under Grassley’s skin. Yesterday he responded to critics using the #DoYourJob hashtag:

Fact check: the U.S. Constitution says nothing about the Senate’s duty to hold telephone town halls. And Grassley’s call for law enforcement to hold undocumented immigrants in jail indefinitely, regardless of whether they have been charged with crimes, is not consistent with the Constitution either.