Sunday, February 27, 2022

Ketanji Brown Jackson and the job of a public defender

Andrew Koppelman

 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 plus brute force. 

When Jackson was nominated to her present position as a Court of Appeals judge, Senator Ben Sasse (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 Cotton (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 DC 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.

I explain in my new column at The Hill, here.

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