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Analysis

An Attack on Ketanji Brown Jackson’s Criminal Defense Work Is an Attack on the Constitution

Jackson’s record as public defender is rooted in the right to a fair trial.

March 18, 2022
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Atti­cus Finch is a clas­sic hero of Amer­ican liter­at­ure. And with good reason. In Harper Lee’s To Kill a Mock­ing­bird, the fictional lawyer’s dogged defense of a Black man against trumped-up rape charges embod­ies the highest aspir­a­tions of our justice system: fair­ness, equal­ity, compas­sion. And yet if Finch were a real lawyer today, some U.S. senat­ors would prob­ably say he isn’t fit to be a judge.

Before she became a judge, Ketanji Brown Jack­son was a federal public defender for two and a half years, and she would be the first on the Supreme Court. Like Finch, she too repres­en­ted some of soci­ety’s most disfavored people. When Jack­son appears before the Senate Judi­ciary Commit­tee for her confirm­a­tion hear­ing, we can expect some senat­ors to assail her for this reason. They should­n’t because public defend­ers are an essen­tial part of our legal system.

Imagine if Finch’s client, Tom Robin­son, hadn’t had a lawyer: a Black man in the 1930s South, pitted against the state, left to navig­ate alone the esoteric trial land­scape. This would’ve hardly been a fair contest. Which is why the Supreme Court over a half century ago held that the Sixth Amend­ment’s guar­an­tee of a fair and speedy trial also includes the funda­mental right to an attor­ney in a seri­ous crim­inal case, even if a person can’t afford one.

Yet it’s likely that some senat­ors will say they view Jack­son’s repres­ent­a­tion of crim­inal suspects as evid­ence of unfit­ness for the Court. To see why, consider a couple recent nomin­a­tions of lawyers who, like Jack­son, have navig­ated the crim­inal justice system for the accused.

Through­out her career, Nina Morrison, who Pres­id­ent Biden nomin­ated for a judge­ship on the Brook­lyn-based federal trial court, has freed dozens of wrongly convicted people as an attor­ney repres­ent­ing pris­on­ers chal­len­ging their convic­tions. Yet rather than focus on Morris­on’s accom­plish­ments or acumen, a string of Repub­lican senat­ors lined up to connect her work to rising crime rates.

Escal­at­ing crime, Sen. Ted Cruz (R-TX) sharply told Morrison, is “the direct result of the policies you’ve spent your entire life­time advan­cing,” refer­ring to when Morrison advised the Phil­adelphia district attor­ney on the invest­ig­a­tion and remedi­ation of wrong­ful convic­tions. And Sen. Josh Hawley (R-MO) vowed to oppose Morris­on’s nomin­a­tion and any other Biden judi­cial nominee who’s “soft on crime” and “do[es] not under­stand the neces­sity of the rule of law.” That Ms. Morrison had worked to exon­er­ate people convicted of crimes they didn’t commit was irrel­ev­ant.

Arianna Free­man fared little better. Seiz­ing on her 12-year career as a public defender, some senat­ors concluded that Free­man, who if confirmed would become the first Black woman on the U.S. Court of Appeals for the Third Circuit, would be unable to be fair-minded. Lament­ing that she had “devoted [her] entire profes­sional career to repres­ent­ing murder­ers, to repres­ent­ing rapists, repres­ent­ing child molesters,” Cruz branded her a “zealot” for defend­ing a Pennsylvania death-row pris­oner whose sentence the Supreme Court ulti­mately over­turned in 2016 (which is, shall we say, rich for a man who also once repres­en­ted a wrongly condemned pris­oner on death row).

These attacks are patently misguided. 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. 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.

In fact, Jack­son’s exper­i­ence — so differ­ent from the current high court bench — as a public defender and a Black woman, has the poten­tial to broaden perspect­ives which could over time shape outcomes. It may even nudge some justices to think differ­ently on an array of issues. It certainly did for the colleagues of Justice Thur­good Marshall, the Supreme Court’s first Black member.

Months after Marshall stepped down, Justice Sandra Day O’Con­nor, who served with the civil rights hero for 10 years, penned a gener­ous essay describ­ing “the special perspect­ive” he brought to the Court. Listen­ing to heart-pound­ing stor­ies from his days of dismant­ling Jim Crow, she recalled sitting at the justices’ confer­ence table with him, “hoping to hear, just once more, another story that would, by and by, perhaps change the way I see the world.” Marshall told his colleagues, as Justice Bryon White reflec­ted, “things that we knew but would rather forget; and he told us much that we did not know due to the limit­a­tions of our own exper­i­ence.”

It’s hard to imagine that Atti­cus Finch, for some senat­ors, would be able to pass muster for a seat on the bench. Of course, he went on to lose at trial, despite some conspicu­ous gaps in the govern­ment’s case. But that’s precisely why Finch is an icon: his unfail­ing repres­ent­a­tion of a polit­ic­ally unpop­u­lar client against the rigged machinery of govern­ment — the Sixth Amend­ment in action — has long stirred a nation to be a better version of itself. And it’s also why any attack on Jack­son for stand­ing up for the right to a fair trial is an attack on the Consti­tu­tion.