Ketanji Brown Jackson and the work of a public defender

The Supreme Court nomination of Justice Ketanji Brown Jackson is likely to spark a kind of grandstanding that has been deployed against both her and other former public defenders, saying she should be disqualified because her clients included very bad people. The implicit premise of these attacks is that it is wrong to represent criminal defendants – that we should punish them without hearing the strongest arguments that can be presented on their behalf. It is like proposing to replace due process with a combination of brute intuition and brute force.

When Jackson was appointed to her current position as an appeals court judge, Sen. Ben SasseBen SasseKinzinger rips ‘damn awful’ anti-Biden tweet from House Republicans Defense and National Security: US and allies hit Russia with sanctions Biden and allies launch sanctions against Russia MORE (R-Neb.) demand she “have you ever worried that your job as a deputy federal public defender could lead to more violent criminals, including armed criminals, returning to 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 ongoing Ukraine crisis Sunday preview show: Russia-Ukraine crisis dominates as White House is “convinced” of an invasion MORE (R-Ark.) asked, “Have you ever represented a terrorist at Guantanamo Bay?” The answer was yes. During his two years representing indigent defendants at the DC Federal Defender’s Office, one of his clients was Khi Ali Gul, a Guantanamo detainee charged with terrorism.

If it’s disqualifying, then we can give up on having a fair criminal justice system. Sasse asked if she had ever considered stepping down from her portrayal of Khi Ali Gul because her job might “cause her to return to her terrorist activities.” The implicit assumption is that no one should represent him. He should be sentenced without the help of a lawyer.

His response was powerful, citing the principles “that government cannot deprive people. . . freedom without meeting his burden of proving his criminal charges” and “that anyone charged with criminal conduct by the government, regardless of wealth and despite the nature of the charges, is entitled to the assistance of a attorney “.

The Republican National Committee has now responded to her appointment to the Supreme Court by executing the same line: her file “includes the defense of terrorists” and “she worked as a lawyer for terrorists”.

We’ll probably see more of this tactic, which has been used to block federal candidates in the past. Perhaps the most glaring example is the smear campaign against Debo Adegbile, an Obama nominee to head the Justice Department’s Civil Rights Division, whose candidacy was rejected in 2014 solely because he had served on Mumia Abu- Jamal, convicted of the 1981 murder of a Philadelphia police officer. charges that Adegbile “…helped get a convicted cop killer out” was enough to scared enough swing state democrats vote against him.

Eighth Circuit Court Judge Jane Kelly was reportedly on Obama’s shortlist to fill the 2016 vacancy following the death of Judge Antonin Scalia. The Conservative Justice Crisis Network ran ads against her to prevent the appointment. “As a lawyer, she argued that her client, a convicted child molester, was not a threat to society,” the ad read. “This client was found with over 1,000 child pornography files and later convicted of the murder and assault of a 5-year-old girl from Iowa. Not a threat to society? Tell your senator that Jane Kelly has no place on the Supreme Court. She was not nominated.

Jackson told Sasse, “Having attorneys who can set aside their own personal beliefs about their client’s alleged behavior or their client’s propensity to commit crimes benefits all people in the United States because it incentivizes the government to thoroughly investigate the charges and protect the rights of the accused during the criminal justice process, which overall reduces the threat of arbitrary or unfounded deprivations of personal liberty. He should have known without having to ask.

To his credit, Biden was undeterred by the prospect of this type 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 once a public defender himself, and nearly 30% of its federal judicial nominees have served as public defenders. (Twenty-four percent were civil rights attorneys and 8 percent labor attorneys.)

This contrasts not only with Trump, but also with Obama. This is a helpful corrective to the overwhelming trend, both at the state and federal level, to elevate former prosecutors to the bench.

Jackson is very impressive. It will be difficult to find a base to block it. Still, Republicans really want to keep Biden out of that seat. Using her experience as a public defender against her would be unethical, dishonest, and corrosive to the US 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.

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