Day one of Judge Ketanji Brown Jackson‘s Supreme Court confirmation hearing is in the books, and Republican Senators spent their time throwing low blows at Democrats for prior confirmation proceedings. But when they did focus on Brown, some of the statements veered toward attacks on her character and qualifications and, in some ways, the Constitution itself.
Sens. Marsha Blackburn and John Cornyn spent part of their statements Monday positioning Jackson as someone who worked opposite the law instead of upholding it. Blackburn insinuated that Jackson would go easy on allegedly violent criminals because of her background, echoing a ridiculous claim by Sen. Josh Hawley about Jackson and supporting “cop killers” and “child predators.”
Cornyn all but called Jackson, a terrorist sympathizer by claiming her representation of those detained at Guantanamo Bay. Jackson would not be the first lawyer to advocate for people having due process rights. Detainees previously were determined to have some rights to pursue grievances in U.S. Courts. Last year, the American Bar Association filed an amicus brief arguing that some due process rights are available to detainees.
But everything Jackson has done as a lawyer or a judge has been consistent with her commitment to upholding the Constitution. If only her challengers could say the same.
The rights of those accused of a crime are a part of the bill of rights, the first ten Amendments of the Constitution adopted in 1791. The Sixth Amendment’s right to a fair trial and right to counsel would later be interpreted to apply to supporting those who could not afford an attorney in the landmark 1963 Supreme Court case Gideon v. Wainwright.
Almost 60 years after the Supreme Court affirmed the right to counsel as a fundamental part of the right to a fair trial, some Republicans seek to distort the importance of legal representation for all, not just those who can afford it. In 1964, Congress passed the Criminal Justice Act providing for appointment and compensation of private attorneys to represent those who were otherwise unable to retain counsel.
Six years later, the federal defender organizations were established providing resources to retain a roster of attorneys who are federal employees. In some instances, private practice attorneys may still receive an appointment and compensation for representing indigent clients. By attacking public defenders, Republican Senators are attacking the guidance and supervision of the administrative oversight provided by the United States Courts.
But it’s not surprising that a provision that benefits poor people is under attack. An analysis from the Brennan Center spotlight Sens. Ted Cruz and Hawley’s prior arguments that defense attorneys working to ensure the system doesn’t violate defendants’ constitutional rights are somehow responsible for rising crime.
“Defending poor people accused of crime doesn’t make a judicial nominee any less capable of rendering objective judgment than does defending powerful corporate or government interests,” wrote the Brennan Center. “Yet we don’t see senators writing off corporate lawyers — who constitute roughly 60 percent of all federal appeals judges — as incapable of exercising impartiality.”
Ultimately Supreme Court justices are supposed to be committed to upholding the Constitution and protecting the rights of the American public. Jackson’s perspective and experience in her two years as a federal public defender could provide a different understanding of several issues before the Court.
According to Sen. Cory Booker, an estimated 80 percent of those who go before a criminal court cannot afford legal representation. He also called public defenders “one of the most honorable roles” in the judicial system.
“And yet we have never had a public defender or anyone who served as a public defender on our highest court,” Booker said. “Unfortunately, it’s very lacking amongst all federal judges.”
Speaking to Jackson, Booker noted that she previously wrote that being a public defender made her a better judge.
“You said it gave you a chance to ‘help people in need and to promote core constitutional values,'” Booker continued. “Well, the Sixth Amendment right to the assistance of counsel is guaranteed, regardless of wealth, and despite the nature of the accusation.”
CNN Legal Analyst Laura Coates, a former prosecutor, said that public defenders are grounded in a commitment to addressing injustice.
“Public defenders are not soft on crime. They are tough on injustice. That should be the philosophy of every Judge,” Coates tweeted.
Further signifying the importance of Jackson’s nomination, Black public defenders and law students gathered Monday morning in a strong show of support for the historic nominee. Confirming Jackson as a Supreme Court justice would add a perspective and understanding of civil and constitutional rights arguably not present since Justice Thurgood Marshall was on the bench. Marshall was well known for representing indigent clients during his years of practice.
Also, the attacks on Jackson for being a public defender make it clear that Republicans don’t care about the rule of law except as a wedge issue when it suits their agenda. Senators objecting to Jackson’s past representation were silent when former President Trump nominated former public defenders to the bench. While not nearly as many as President Biden, an estimated 2 percent of Trump’s judicial nominees had been public defenders.