The Supreme Court nomination of Judge Ketanji Brown Jackson is likely to elicit a kind of demagoguery that has been deployed against both her and other former public defenders, claiming that she should be disqualified because her clients included very bad people. The implicit premise of such attacks is that it is wrong to represent criminal defendants — that we should punish them without hearing the strongest case that can be made on their behalf. That amounts to a proposal to replace due process with some combination of raw intuition and brute force.
When Jackson was nominated to her present position as a court of appeals judge, Sen. Ben SasseBen SasseKinzinger rips House Republicans’ ‘damn awful’ anti-Biden tweet Defense & National Security: US, allies hit Russia with sanctions Biden, allies launch sanctions against Russia MORE (R-Neb.) asked her “were you ever concerned that your work as an Assistant Federal Public Defender would result in more violent criminals – including gun criminals – being put back on the streets?” Sen. Tom CottonTom Bryant Cotton Sunday shows preview: Russia invades Ukraine; Biden nominates Jackson to Supreme Court The Hill’s 12:30 Report – Presented by Facebook – Biden announces Supreme Court pick amid unfolding Ukrainian crisis Sunday shows preview: Russia-Ukraine crisis dominates as White House is ‘convinced’ of an invasion MORE (R-Ark.) demanded, “Have you ever represented a terrorist at Guantánamo Bay?” The answer was yes. During her two years representing indigent defendants in the D.C. federal defender office, one of her clients was Khi Ali Gul, a Guantanamo detainee accused of terrorism.
If that’s disqualifying, then we can give up on having a fair criminal justice system. Sasse asked whether she’d ever considered resigning from her representation of Khi Ali Gul because her work might “result in his returning to his terrorist activities.” The implicit assumption is that no one ought to represent him. He should be convicted without any attorney’s help.
Her answer was powerful, citing the principles “that the government cannot deprive people . . . of their liberty without meeting its burden of proving its criminal charges,” and “that every person who is accused of criminal conduct by the government, regardless of wealth and despite the nature of the accusations, is entitled to the assistance of counsel.”
The Republican National Committee has now responded to her Supreme Court nomination by running the same line: her record “includes defending terrorists,” and “she worked as a lawyer for terrorists.”
We are likely to see more of this tactic, which has been used to block federal nominees in the past. Perhaps the most egregious example was the smear campaign against Debo Adegbile, an Obama nominee to lead the Justice Department’s Civil Rights Division whose candidacy was defeated in 2014 solely because he had been part of the defense team for Mumia Abu-Jamal, convicted in the 1981 killing of a Philadelphia police officer. Accusations that Adegbile “…Helped Get A Convicted Cop Killer Off The Hook” sufficed to spook enough Democrats from swing states to vote against him.
Eighth Circuit Court Judge Jane Kelly was reportedly on Obama’s short list to fill the 2016 vacancy after Justice Antonin Scalia died. The conservative Judicial Crisis Network ran ads against her to forestall the nomination. “As a lawyer she argued that her client, an admitted child molester, wasn’t a threat to society,” the ad declaimed. “That client was found with more than 1,000 files of child pornography and later convicted for murdering and molesting a 5-year-old girl from Iowa. Not a threat to society? Tell your senator, Jane Kelly doesn’t belong on the Supreme Court.” She wasn’t nominated.
Jackson told Sasse: “Having lawyers who can set aside their own personal beliefs about their client’s alleged behavior or their client’s propensity to commit crimes benefits all persons in the United States, because it incentivizes the government to investigate accusations thoroughly and to protect the rights of the accused during the criminal justice process, which, in the aggregate, reduces the threat of arbitrary or unfounded deprivations of individual liberty.” He should have known that without having to ask.
To his credit, Biden has not been deterred by the prospect of this kind of attack. When he took office, only three of the 166 sitting federal appellate judges had spent most of their earlier careers as public defenders. Biden was himself a public defender once, and nearly 30 percent of his nominees to the federal bench have been public defenders. (Twenty-four percent have been civil rights lawyers and 8 percent labor attorneys.)
This contrasts not only with Trump, but also with Obama. It is a useful corrective to the overwhelming tendency, at both the state and federal levels, to elevate former prosecutors to the bench.
Jackson is mighty impressive. It will be hard to find any basis for blocking her. Yet Republicans badly want to keep Biden from filling that seat. Using her public defender experience against her would be unethical, dishonest and corrosive of American government. That doesn’t mean it won’t happen.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.