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Cedar Rapids judge becomes flashpoint in Supreme Court opening

Conservative activists take on Jane Kelly, although she has not been nominated

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Gazette staff and wire

Cedar Rapids federal appeals Judge Jane Kelly — vetted but not nominated by the White House as a possible U.S. Supreme Court justice — has become a flashpoint in the argument over filing a critical vacancy that could tip the ideological balance of the court.

A conservative advocacy group this month branded her as a “liberal extremist” indicative of the choice President Barack Obama wants to make to fill the opening created by the Feb. 13 death of Justice Antonin Scalia.

The activist group Judicial Crisis Network said in a statement Tuesday to The Gazette that an ad it ran against Kelly appeared “in a handful of states including Iowa” but was discontinued as it became apparent that Kelly was not likely to proceed further — a result for which the group claimed credit.

In a floor speech, Senate Democratic Leader Harry Reid denounced what he called the group’s “smear” campaign against Kelly, who the U.S. Senate unanimously elevated in 2013 from a federal public defender to the 8th Circuit Court of Appeals.

The ad assails Kelly’s work in 2005 as a public defender when she represented defendant Casey Frederiksen on child pornography charges.

Then 26-year-old Frederiksen, of Charles City, was accused of trying to hide a computer hard drive with more than 1,000 images of child pornography.

The hard drive was discovered, court records showed, as authorities were investigation the death of 5-year-old Evelyn Miller, the daughter of Frederiksen’s fiancee. At the time, no one had been charged in the killing.

In federal court on the porn charges, Kelly argued Frederiksen was seeing a psychologist who determined he posed no danger to the public. She helped him secure a deal to plead to three of the 14 charges.

Later, in a case that shocked Iowans, Frederiksen was charged in state court with sexually assaulting and stabbing Evelyn. The girl’s body was found in the Cedar River about 2 miles from her home in Floyd.

Last year, Frederiksen was convicted of her murder and sentenced to two life terms.

“We brought those disturbing facts to light and apparently that was enough to cause the White House to remove her from the shortlist,” the Judicial Crisis Network said in its statement Tuesday. “Even child molesters and murderers deserve the legal defense our Constitution guarantees, but Kelly’s arguments to the court strained credulity even given the facts publicly available at the time, let alone additional concerns she would have been aware of as his lawyer.”

The group’s ad calls Kelly a lawyer for Frederiksen, without specifying she was a public defender.

In its statement Tuesday, the group declined to identify its donors. Its policy director is a Harvard Law School graduate who once clerked for Supreme Court Justice Clarence Thomas.

In his floor speech, Reid referred to the group as “a dark money, right-wing political organization that operates in total secrecy.”

“The accusations leveled against Judge Kelly are despicable,” he said, calling on Iowa’s U.S. senators including Republican Chuck Grassley, the chairman of the Judiciary Committee who in the past praised Kelly, to denounce to the group’s charges.

In 2013, the Senate voted to confirm Kelly to her current position in a 96-0 vote.

It already had been rumored for days that Kelly was moving down the Obama administration’s priority list of potential nominees. But administration lawyers continued to review the legal opinions of three other finalists, weighing whether elements could become a flashpoint for opponents on the right or even the left.

Media outlets including the Washington Post and the New York Times, citing anonymous sources, identified the three still under consideration as Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit; Sri Srinivasan, a judge on the same court; and Paul Watford, a judge on the California-based U.S. Court of Appeals for the 9th Circuit.

Obama could make his choice this week.

Nonetheless, Grassley continued Tuesday to say he would not call a hearing of his Senate Judiciary Committee to consider any Obama nominee.

“The Constitution is not a ‘living’ document. The danger with any justice who believes they are entitled to ‘update’ the Constitution is that they will always update it to conform with their own views,” Grassley said in a statement. “That’s not the appropriate role of a justice. As Justice Scalia put it, “The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

Reuters and James Q. Lynch of The Gazette contributed to this report.

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