A defense attorney in a society of cops

In 2016, then-President Barack Obama interviewed Judge Ketanji Brown Jackson as a possible Supreme Court nominee after the death of Justice Antonin Scalia. He wound up opting instead for Merrick Garland, then chief judge on the U.S. Court of Appeals for the D.C. Circuit, who cut a more conservative figure in multiple ways: He had more years of experience as a judge, had risen to a higher position within the federal judiciary, and, of course, was a white man.

Like many members of the judiciary, Garland also had experience as a prosecutor, both in the D.C. U.S. Attorney's Office and as associate deputy attorney general under Deputy Attorney General Jamie Gorelick. By contrast, Jackson was a rare member of the judiciary who had served as a public defender.

Garland would be denied even the courtesy of a hearing on his nomination; now Jackson, however tough her questioning, is very likely to be approved by a Democratic-controlled Senate, perhaps even with a handful of dissenting Republican votes. For the vast majority of senators, all that matters about a nominee is what party they come from.

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Political orientation certainly does matter, but it's not the only thing that does. The distinctive characteristics of each nominee can profoundly shape the arguments they make, both in chambers with the other justices, and in public. That's why I'm so pleased that, if confirmed, Jackson would be the first Supreme Court Justice with a background in public defense.

It's not that I think public defenders are always right, nor that I think America's judicial system is uniformly too tough on crime. I do think the rarity of her experience in this area makes her particularly valuable to the court; it's precisely the kind of diversity that matters most. But my interest goes beyond that. I worry that, as a culture, we're starting to forget the very concept of the right to a defense.

You can see that playing out in the demagoguery of Republican Sen. Josh Hawley's (Mo.) attacks on Jackson as overly lenient toward traffickers in child pornography, and in Republican Sen. Lindsey Graham's (S.C.) critique of her work representing detainees at Guantanamo Bay. Neither senator went after her legal reasoning; they were impugning her motives. The clear insinuation is that anyone who doesn't throw the book at every sex offender, or who would participate in a legal system that provides terrorists with a defense, cannot be trusted with power.

That's an incredibly destructive philosophy — even if you believe the system is too friendly to defendants and that prosecutors and police officers deserve deference. We need political debate over justice in our legal system, because the question of how to provide adequate protection for both the public and the rights of the accused is a political one. Grilling a prospective Supreme Court justice about how deferential she would be to the legislature on such matters is always fair game.

But for the rules to be respected at all, they have to be followed honestly, without fear or favor. Attacking a judge for following promulgated sentencing guidelines or attacking a public defender for fulfilling her duty to her assigned client, tells ambitious legal minds that they have every reason to fear if they do their jobs impartially. Better for your career to pursue a path that never requires you to give unsavory defendants a defense.

This isn't only a problem on the political right, however. Classically, the liberal left has stood for due process and greater protections for defendants. That's less and less true, though. Increasingly, many progressives embrace an outcomes-based approach that may be appropriate in talking about the system as a whole, where a pattern of results may be evidence of systemic bias, but that is antithetical to the very idea of justice when applied to individual cases. And in many of these cases — Kyle Rittenhouse being a prominent recent example — liberals aren't rooting for the defense, but for the prosecution.

Journalist Aaron Sibarium's broadside attack on America's evolving legal culture draws together many disparate issues, lumping culture war posturing in with far more serious matters. But what is most disturbing to me about the trends he highlights is the way in which the line is progressively being blurred between judging process and judging results, as well as between defending an accused client and justifying their alleged behavior. When law firms fear to take on First Amendment cases because the defendant has despised opinions, that's a clear sign of decay in the liberal culture necessary for free speech in practice.

It sometimes seems like we've turned into a society of wannabe cops, where the only question is who deserves to be presumed guilty. That's alarming enough behavior among the public at large. It's worse when our legislators capitalize on it to demagogically appeal to our basest instincts. But it's worse still when the call is coming from inside the legal profession's house.

Which is why I am particularly heartened at this time by the prospect of a public defender on the highest court. It's beyond absurd to suggest Jackson has a soft spot for child molesters. But it's very reasonable to assume she understands better than most just what someone accused of sex crimes faces when caught up in our judicial system, which is why I want her input when the court debates tinkering with that system's rules.

Most of all, though, I want her voice there when the defendant is someone who the public — including her fellow progressives — see as automatically guilty. She has just the right background to remind them that in our system there is, by definition, no such thing.