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Biden Circuit Picks Highlight Public Defense Work at Hearing (2)

April 28, 2021, 5:22 PM; Updated: April 28, 2021, 8:18 PM

President Joe Biden’s first two federal appeals court nominees to come before the Senate described at their confirmation hearing how their experience as public defenders would influence their approach on the circuit bench.

“One of the things that I do now, is I take extra care to communicate with the defendants who come before me in the court room. I speak to them directly and not just to their lawyers. I use their names. I explain every stage of the proceeding,” said Ketanji Brown Jackson, who currently sits as a Washington federal trial court judge, in response to a question from Sen. Richard Durbin (D-Ill.), who chairs the Senate Judiciary Committee.

Jackson is nominated to the U.S. Court of Appeals for the D.C. Circuit and is considered a potential favorite for a Supreme Court vacancy. She said the clients she represented as a public defender often didn’t understand what happened to them in court. As a federal trial judge in D.C., she said she has remembered that experience.

Candace Jackson-Akiwumi, who is nominated to the Seventh Circuit, said her experience as a federal public defender in Illinois taught her the importance of listening and being heard.

“It’s easier for people to accept even adverse rulings by the court when they at least know they’ve been heard,” she said.

The importance of letting people know they’ve been heard by the court is something Jackson-Akiwumi said she learned even before law school from her mother, who is also a judge, and gained experience doing as a public defender.

Jackson and Jackson-Akiwumi appeared jointly on Wednesday before the panel.

The Biden administration has indicated it wants to appoint public defenders and people with civil rights experience, who aren’t currently represented on the bench. Progressives are also pushing for nominees with that experience.

Durbin called the hearing a “historic day for the Biden administration,” noting the nominees’ qualifications as well as their demographic, and professional diversity.

Just 1% of circuit court judges have spent the majority of their careers as public defenders or within a legal aid setting, according to a August 2020 Center for American Progress study.

Little Pushback

The circuit nominees received little pushback from Republican senators.

Sen. Chuck Grassley (R-Iowa), the committee’s top Republican, invoked past criticisms by Democrats of Republican nominees for the types of clients they represented.

“As a wise man said recently, ‘there can’t be one set of rules for Republicans and another for Democrats,’” Grassley said, referencing a statement by Durbin. “So I plan to look at candidates records, including their legal advocacy on behalf of clients.”

Sen. John Cornyn (R-Texas) asked the nominees how their race— both are Black—would affect their decision making, noting Democrats focus on diversity. Both nominees said it wouldn’t.

The nominees also dodged questions from Republican senators about the progressive push to expand the size of the Supreme Court.

Dark Money

Republican senators focused their criticism at Demand Justice, a progressive group leading the push to add four seats to the Supreme Court. Republican lawmakers called it a “dark money” group seeking to influence the process.

Grassley said the organization “seems to be in charge of the judicial selections in this administration.” Cornyn also asked the nominees if they were familiar with statements made by the group.

Demand Justice is a 501(c)(4) organization, which are commonly referred to as a “dark money” groups for the reason they do not have to disclose their donors. Democrats have previously focused on the influence of the conservative Federalist Society in the selection of Trump’s judicial picks during the Trump administration.

Sen. Thom Tillis (R-N.C.) said Demand Justice is “largely responsible for the nominations we have before us.” He questioned why both Jackson and Jackson Akiwumi were added to an updated version of the organization’s Supreme Court shortlist after not being included on the first iteration. Only Jackson, however, is on the list.

Tillis linked it to Jackson’s ruling that Trump White House counsel Don McGahn must respond to a subpoena from the House Judiciary Committee to testify, saying the “120-page ruling had a purpose.” He then played a clip of MSNBC anchor Rachel Maddow saying Jackson’s ruling was “written with a broad audience in mind.”

Jackson said that as a federal judge she has a “duty to independence,” and she doesn’t have control over what organizations and reporters say about her rulings.

“I know very well what my obligations are, what my duties are, not to rule with partisan advantage in mind, not to tailor or draft my decisions in order to try to gain an influence or do anything of the sort,” Jackson said.

Demand Justice rejected any connection between the decision Tillis referenced and Jackson’s appearance on its list of recommendations.

Jackson was part of a group of 11 Black women the organization added to its list after Biden indicated he would nominate a Black woman to the Supreme Court. She wasn’t added because of a particular ruling, said Chris Kang, chief counsel for Demand Justice.

“Judge Jackson was included on that list because her work as a public defender and at the Sentencing Commission would bring badly needed experience to the Court and because of her strong reputation as a judge,” Kang said.

(Updates with statement from Demand Justice.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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