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Federal appellate judge Jane Kelly- One of my contemporaries on the bench

Feb 05, 2014 Federal appellate judge Jane Kelly- One of my contemporaries on the bench

When I started appearing before judges at the age of 28, they all were older than I. Now at fifty, many judges are younger than I.

How many judges are ageist towards lawyers much younger than they? I do not know. I know it is not a hurdle for me at this stage in my life and practice.

I am not one to attend bench-bar galas, receptions honoring judges (unless they have such names as Brennan), nor to promote anyone for judgeships. Some judges make me look up at the sky and thank my good fortune to have them assigned to my case, while some other judges lead me to ask what caused me to get payback for them to bhave been assigned to my cases. Then we have the rest.

As time marches on, more people I first knew as practicing lawyers become judges. In Virginia, with its peculiar system of substitute judges, all the more of my age and practice-type contemporaries one day walk down the hallway in lawyer attire, and the next day wear robes and wield judicial authority, only the next day to be without the robes again.

I was most intrigued last year to learn that one of those contemporaries, Jane Kelly, had been nominated and confirmed to the U.S. Court of Appeals for the Eight Circuit. I interacted with Jane for two weeks when in the same breakout group of eight lawyers at the 1994 National Criminal Defense College. Then, as when she got nominated to the Eighth Circuit, she was a federal public defender lawyer in Iowa. Jane had a personality that probably everyone liked. She was kind, decent, seemed to care about her clients, and displayed no significant ego. I had a lot to learn from her in that department, having been at that time all the more an angry lawyer bent on doing good as a criminal defense lawyer. An angry litigator is a weakened litigator.

After reading of her nomination, I found Jane’s email address at the Public Defender’s office through the online federal court docketing system and sent her an email asking if she was the same Jane Kelly I know, having not been in touch since the NCDC. Exhibiting the Jane I knew from the start, she emailed me within a day or two with a kind email acknowledging that she was one and the same.

Jane graduated from Harvard Law School two months before I became a Maryland a public defender trial lawyer — attending when Barack Obama was there — probably offsetting the Paper Chase aspect of law school with her kindness and selflessness, and probably never with any cutthroat cell nor bone in her body at any stage that she has advanced in her career and personal life. She then worked as a law clerk for a federal trial judge and next a federal appellate judge, making her on paper alone a great candidate for many plum jobs, and for complete nationwide mobility. She chose to be a federal public defender lawyer, in little Iowa of all places, helping indigent defendants facing the draconian federal criminal justice system. In the age of many filibusters against opposing presidents’ judicial nominees, Jane won unanimous Senate confirmation. She is the second woman to sit on the Eighth Circuit.

In 2004, Jane was seriously assaulted into bloody unconsciousness while running in Cedar Rapids. She kept her compassion, and kept defending her indigent clients. That is no small feat.

Jane is now developing a judicial paper trail. The first few cases I found where she was on the deciding panel are very short opinions where she joined the unanimous panel. These cases affirmed a federal sentence, found federal pre-emption preventing action against QWest by the Minnesota Public Utilities Commission, and affirmed a summary judgment/dismissal order against an injured truck driver.

Unless Jane advances to the Supreme Court and unless I argue a case there, I doubt I will be appearing before her, but one never knows. A benefit of appearing before judges I know is that I walk into the courtroom with credibility before the judge, with the judge also knowing my humanness, and sometimes giving me leeway before the judge and jury, giving me the benefit of the doubt; and I already know numerous important things about what makes such a judge tick.

Plenty of judges, sadly, turn unpredictably nasty and seemingly too uncaring on the bench, although my teacher Steve Rench has tips for reversing such a state of affairs. Of course, it is easier for appellate judges not to lose their cools, with their courtrooms and chambers that are more rarefied and manageable than those of trial judges. Then again, I have seen plenty of appellate judges urinate on the Constitution. Jane seems to truly care about justice, which will hopefully be infectious to her colleagues.

Not one to gush over most judges, I hold out the likelihood that Judge Jane Kelly will make me smile many times with how she rules and treats litigants along the path. I expect at least some frowns along the way, as well, which I expect with all judges. 

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