Republicans are attacking Judge Jackson for defending poor people’s rights

Public defenders represent poor people who are accused of committing crimes. They do so not because they condone what their clients do, but because the rule of law and the Constitution require that no one be denied the right to counsel simply because they cannot afford to pay.

What public defenders do is as American as apple pie and the Fourth of July.

But you would never know it from listening to what Republicans have been saying about President Biden’s nomination of Judge Ketanji Brown Jackson to the Supreme Court.

As her confirmation hearings begin, we can expect them to continue to try to revive a tried-and-true party playbook stratagem by highlighting the “horrible” crimes committed by people she represented as a public defender and waving the banner of law and order.

On March 16, Sen. Minority Leader Mitch McConnell (R-Ky.) laid the groundwork for Republican members of the Senate Judiciary Committee to play the dog-eared “soft on crime” card against Jackson.

Never mind that before Jackson became a federal judge in 2013, she spent seven years at large law firms and seven at the United States Sentencing Commission. Not important to McConnell. He focused exclusively on Jackson’s time as a public defender from 2005-2007.

The last Supreme Court justice to have defended indigent people accused of crime was also Black: His name was Thurgood Marshall.

Because Jackson would be the first Black female Supreme Court Justice, the “soft on crime” meme in 2022 is about as subtle a dog whistle as was Richard Nixon’s “law and order” presidential campaign, or that of racist third-party candidate George Wallace, back in 1968. 

Sens. Josh Hawley (R-Mo.), Ted Cruz (R-Texas) and Tom Cotton (R-Ak.), all putative competitors for the 2024 Republican Presidential nomination, will likely double down on McConnell’s concerns about Judge Jackson’s work zealously defending the rights of poor people.

That trio rehearsed this line of attack during Judiciary Committee hearings on other Biden nominees to the federal judiciary who were public defenders. They have repeatedly tried to question their anti-crime bona fides.

Add to them Sen. Chuck Grassley (R-Iowa), also on the committee. In June 2021, he said, “We need to carefully scrutinize these federal defender nominees because the left seems to think they’ll rule in a certain way.” Neither Grassley nor his Senate Republican colleagues expressed similar concerns about bias when former President Trump sent them the names of lawyers whose primary qualification seemed to be their devotion to protecting the rights of polluters, denying rights to workers or ending abortion.

There’s more than a hint of hypocrisy in the attack on Judge Jackson’s service as a public defender. 

Hawley, Cruz, Cotton and Grassley voiced no concerns about two of Trump’s judicial nominees who had worked as public defenders. They all voted for Trump judicial nominee Clifton L. Corker and for Roderick C. Young, though Corker and Young had spent part of their careers as public defenders.

And the two-facedness of claiming to be defenders of “law-and-order” hardly ends there. Think about the Jan. 6 violent attack on the Capitol. Hawley has used the photo of his famous pre-siege fist-pump to the Jan. 6 crowd to fundraise. Ted Cruz walked back his description of the participants in the Capitol siege as “terrorists” after Tucker Carlson criticized him for it. Cotton and Grassley both voted against a bipartisan commission to investigate the violence.

Law and order, indeed.

These aren’t committed law enforcement hawks; they’re opportunists.

Hawley, Cruz and Cotton are all elite law school graduates. They surely were taught that our adversary system rests on the premise that everyone — even poor people who are accused of crime — deserves legal representation. They know that the American justice system depends on having zealous opposing advocates who help juries ascertain the truth, including whether a defendant is innocent or guilty.

Clark Neily, senior vice president for legal studies at the conservative Cato Institute put it this way: Opposition to a nominee because she has served as a public defender “is extraordinarily shortsighted and unfair. The job of a criminal defense attorney is not just to represent the interests of their client, but to also ensure the government doesn’t cut corners and abides by the rule of law.”

In Powell v. Alabama, the 1932 case of nine Black teenagers who were falsely accused of raping a white woman in Scottsboro, Ala., the Supreme Court taught that every defendant “requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

Without counsel, the “Scottsboro boys” were wrongly convicted. Once they were represented, their rape convictions did not stand.

Do not expect the principle and purpose of every person’s right to representation to interfere with the Republican Senators’ questions. They likely will also attack Judge Jackson for having represented inmates at Guantanamo Bay. To attack her for representing the clients who came to her alleging mistreatment there is, as Washington Post columnist Randy Balko has written, “literally attacking her for doing her job.”

Further, Sen. Hawley has signaled his intent to question Judge Jackson on why she imposed sentences to those convicted of possessing child pornography below the suggested sentencing guidelines.

None of the “soft on crime” hearing room antics will ultimately work with a nominee whom the International Association of Chiefs of Police has endorsed, someone with a brother and an uncle in law enforcement.

A Quinnipiac poll released March 16 shows Americans favor her confirmation 54 percent to 24.

And as former Supreme Court Justice Hugo Black explained almost 60 years ago, “[O]ur state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials … in which every defendant stands equal before the law. This noble ideal,” Black continued, “cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” 

Judge Jackson embodied that ideal when she served as a public defender.

Still, presidential hopefuls Hawley, Cotton and Cruz will likely seek to outdo each other for the television cameras in trying to demonize her for doing that “noble” work. It may make good theater for the base, but in the end, it is they who will be debased.

This post has been updated from the original to remove an inaccuracy.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. He’s the author of Gruesome Spectacles: Botched Executions and America’s Death Penalty.

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.