Judging Biden’s judicial nominees: Political hypocrisy switches parties

Some of the Republicans in Congress who are attacking President Biden’s judicial nominees based on the clients they represented as public defenders are the same Republicans who praised me when I, a liberal Democrat, defended President Trump against impeachment.

Judge Ketanji Brown Jackson worked in the D.C. public defender’s office early in her career and was assigned to represent defendants accused of terrorism and other heinous crimes. She did her job well. Yet some Republicans are accusing her and other former public defenders of doing their jobs too well.

Arianna Freeman, a nominee for a U.S. Court of Appeals seat, was asked if she regretted “trying to prevent” the execution of a defendant who was accused of a heinous double murder. Nina Morrison, another Biden nominee, was criticized for having “devoted your entire professional career to representing murderers, representing rapists, representing child molesters.” And the Republican National Committee, in criticizing Judge Jackson, pointed to her “advocacy” for Guantánamo Bay detainees suspected of terrorism.

Democratic supporters of these nominees responded by invoking the “fundamental principle of the American justice system” — namely, that “everyone has the constitutional right to be represented by counsel.” Yet some lawyers — myself included — who have represented Donald Trump and other defendants deemed politically incorrect have been attacked merely for choosing to become involved in their legal defense. Now that the shoe is on the other foot, these partisans have suddenly rediscovered a “fundamental principle” that they ignored just a few years ago. At the same time, Republican partisans seem to have forgotten the principles they invoked in supporting my right and that of other lawyers to defend President Trump and other Republicans.

Sen. Tom Cotton (R-Ark.), a graduate of Harvard Law School, has denied that criminal defense work is disqualifying, but he has said it is only appropriate to judge nominees by the cases they accepted. Well, I accepted the Trump case — and, at the time, Sen. Cotton praised me for it.

Both sides will point out that there is a difference between defending criminals from prosecution and defending presidents from impeachment; Democrats will argue that it is more ethical to represent the former, while Republicans will argue the opposite.

There is a long and respected history of American lawyers accepting the cases of defendants — both in criminal and impeachment cases — with whom they could not have disagreed more fundamentally. As a lawyer, soon-to-be Founding Father John Adams accepted the case of British soldiers accused of the Boston Massacre. Abraham Lincoln, Benjamin Curtis, Daniel Webster, Clarence Darrow, Thurgood Marshall, Edward Bennett Williams and other distinguished defense attorneys all might well have been disqualified from judicial service based on Sen. Cotton’s criteria.

It is no surprise that hypocrisy is rampant in partisan politics. It is surprising, however, that such hypocrisy is so transparent. The only “fundamental principle” to which both sides seem to agree is that there is a right to a zealous defense for them and their party, but not for you and your party.

Just because some Democrats have been hypocritical about the fundamental nature of the right to counsel for “everyone” doesn’t mean they are wrong now, however. No judicial candidate should be judged by the clients they have chosen or been assigned to represent. Judge Jackson and the other Biden nominees who have been defense attorneys should be judged by the quality of their work, their legal credentials and other relevant factors. President Biden, who was himself a public defender for a brief time early in his career, should be praised for broadening the criteria for judicial nomination beyond the usual former prosecutors, corporate lawyers and elite academics.

Former public defenders will diversify the bench in an important way: They have seen the justice system through the prism of both guilty and innocent defendants. Biden has, to his credit, nominated more than 20 former public defenders, each of whom should be judged on their individual merits.

As usual, some Democrats are trying to turn this into an issue of identity politics. Sen. Richard Durbin (D-Ill.), for example, has accused Republicans of opposing these nominees because they are “assertive women of color” who are soft on crime. But this is not about race or gender in most cases. It is about the right to a defense.

History has shown that former defense attorneys can be very tough on crime when they become judges. Legendary defense lawyer Samuel Leibowitz, who vigorously defended notorious defendants including “The Scottsboro Boys,” became the toughest law-and-order judge when he put on a judge’s robe. And Felix Frankfurter, who as a professor defended Sacco and Vanzetti, became a conservative Supreme Court justice.

The role of a judge is neither to be soft or hard on crime but, instead, to be fair and to apply the law to the facts. To be sure, judges bring to the bench their experiences, backgrounds, ideologies and attitudes with regard to crime and other hot-button issues. That is precisely why presidents should nominate highly qualified judges whose qualifications include a wide variety of professional experiences in representing a diverse array of clients. 

Alan Dershowitz, professor emeritus for Harvard Law School, is the author of numerous books, including “The Case Against the New Censorship,” and “The Case for Color-Blind Equality in an Age of Identity Politics.” Follow him on Twitter @AlanDersh.