Talking Points

There's a reason Ketanji Brown Jackson is the 1st public defender appointed to SCOTUS

The thing that makes Ketanji Brown Jackson such an excellent nominee to the Supreme Court is also the thing that makes her ripe for attacks from Republicans: She once served as a public defender — the very first one ever appointed to the court.

She was effective. Earlier this month, The Washington Post reviewed her record and concluded that as a defense attorney, "she won uncommon victories against the government that shortened or erased lengthy prison terms." Among her clients: Khi Ali Ghul, a detainee at Guantánamo Bay, Cuba. 

That might be very unpopular, but let's be clear: Jackson's experience as a public defender is a good thing. The Constitution guarantees felony criminal defendants the right to legal counsel, and the system doesn't work at all if people accused of crimes can't find a lawyer. Without defense attorneys (and particularly without public defenders), our justice system would be a series of show trials. A criminal charge would be tantamount to a conviction. So it would be good for the court to have a member — just one! — who has day-to-day experience and knowledge of what the law looks like when the government is marshaling its resources against you.

But public defenders have a hard time getting promoted to judgeships. Before Biden became president, roughly 1 percent of federal appellate judges had previously done the kind of work Jackson has done. 

Why? Well, Republicans love to beat up on judicial nominees with a history of representing criminal defendants. Just this month, Sens. Ted Cruz (R-Texas) and Josh Hawley (R-Mo.) attacked Nina Morrison, an appellate judge nominee who spent much of her career working for the Innocence Project, a nonprofit organization that uses DNA testing to try to reverse wrongful convictions. "Across this country, Americans are horrified at skyrocketing crime rates, at skyrocketing homicide rates, at skyrocketing burglary rates, at skyrocketing carjacking rates," Cruz sneered at Morrison. "All of those are the direct result of the policies you've spent your entire lifetime advancing."

This sort of thing has been happening for years. It's easy to see why. Crime is always unpopular. Defense attorneys make easy targets for GOP politicians trying to strengthen their "tough on crime" bona fides. Does it matter that they undermine the Constitutional system by incentivizing smart, ambitious lawyers to stay away from a criminal defense practice? Or that innocent people might go to prison without effective representation? Apparently not. 

So Jackson's nomination isn't just a good way to expand the Supreme Court's perspectives — it's also a necessary way of pushing back against the notion that it's somehow less legitimate to serve the system as a defense attorney. And no surprise: It probably means there will be fireworks at her confirmation hearing.