I readily admit I haven’t had the opportunity to listen to all of the confirmation hearings for President Biden’s nominee to the United States Supreme Court, Kentaji Brown Jackson, or read extensively about her personal history or legal views. Like most people with a full-time job and family, the number of hours I can devote to keeping up with everything I’d like to is very limited. But I did listen to a part of Senator Tom Cotton’s questioning of Judge Jackson and I found it very disconcerting. The questioning I’m referring to was centered around Judge Jackson’s past work as a Federal Public Defender, defending some of those accused of terrorist acts against the United States. Senator Cotton seemed to believe that being a Federal Public Defender and defending those who are alleged to have committed terrorist acts against the United States was somehow disqualifying for Judge Jackson, or at least called her qualifications into question.
WATCH: Sen. Cotton questions Jackson on past representation of Guantanamo Bay detainees – YouTube Start at 7:28.
I listened to Senator Cotton and Judge Jackson’s exchange as someone who was never a public defender, but as someone who has defended many indigent defendants in county courts in Northeast Ohio. A public defender’s job is to represent criminal defendants who are determined by the court to be indigent. Indigent means that the individual cannot afford to hire an attorney on their own. I’m not sure of the exact income level that makes a defendant indigent, but from my own experience very few of those I represented who where indigent had any significant income source, let alone enough of an income to hire an attorney. For the most part, public defenders are paid directly or indirectly by taxpayers.
Courts appoint an attorney other than a public defender to represent indigent clients when the public defender has a “conflict of interest.” The most common conflict of interest is that the public defenders’ office is already representing a co-defendant of the defendant. I often would accept appointments to represent indigent defendants when I was in private practice under these circumstances. Attorneys who accept such appointments are paid at a rate set by the elected county commissioners, a rate much reduced from what a private client would typically pay.
All attorneys pledge to uphold and support the United States Constitution. Likewise, all United State Senators and Representatives, members of State Legislatures, and all executive officers and Judges, both Federal and State, are bound by oath or affirmation to support the United States Constitution. With this in mind, I want to focus on the issue which was the subject of the exchange between Senator Cotton and Judge Jackson, the Constitutional right of criminal defendants to have the assistance of an attorney.
So many of our other rights can only be protected if defendants have the assistance of counsel. Criminal defense attorneys assure that when someone is charged with a crime that the defendant’s right against unreasonable searches and seizures has not been violated. Likewise, the right to a speedy public trial by an impartial jury, to be able to confront the evidence that forms the basis of the charge, to be able to subpoena witnesses, are not self-enforcing. Those rights, which protect all of us, are only enforced when someone knowledgeable of the relevant law brings the issues to the judge’s attention. Our Constitution also prohibits the enforcement of laws so vague that the average citizen cannot understand what the law prohibits. Defense attorneys are the ones who challenge such laws.
Our Founding Fathers understood that when criminal defendants do not have the assistance of counsel, not only does someone who has actually committed a criminal offence suffer, or even criminal defendants more generally, but all of society suffers. Without defense attorney to assure that the State proves a criminal defendant has committed a crime beyond a reasonable doubt, our criminal justice system becomes more and more sloppy, and more and more unjust.
Senator Cotton also implied that there was something nefarious about Judge Jackson doing pro bono work on behalf of some criminal defendants. Pro bono work is work an attorney does without pay. From the confirmation proceedings it appeared that Judge Jackson’s law firm actually paid her for certain pro bono work but that the firm was not paid. Regardless, to imply that a criminal defense attorney does something questionable when the attorney works without pay to defend a criminal defendant is absurd. Would it make what a defense attorney does more acceptable if the motivation was being paid versus for the benefit of a fair and equitable criminal justice system?
Certainly, like every profession, there are defense attorneys that are far from the ideal, that behave unethically and dishonestly. But the work that conscientious and zealous defense attorneys do benefits all of us. Having a justice system that adheres to the principles of our Constitution benefits all of us. The work of criminal defense attorneys is largely responsible for bringing to light failures in our criminal justice system that need to be addressed.
That Ketanji Brown Jackson worked as a public defender is not a reason to doubt her qualifications to be a United State Supreme Court Justice, but is instead a reason to want her on the court. Public servants that understand on a personal level the important role defense attorneys play in protecting all of our Constitutional rights benefit all of us.