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Jackson Hearing Puts Focus on Public Defenders, Historic Firsts

March 23, 2022, 5:16 PM

The confirmation hearings for Ketanji Brown Jackson are being closely watched by supporters of the judge, who hail her unique career path and potential to make history as the first Black woman on the U.S. Supreme Court.

But for some backers the hearings have been a complicated moment, with Jackson’s introduction to the American public caught up in a larger political fight between Republicans and Democrats over issues such as critical race theory, the treatment of prior nominees, the high court’s direction, and Jackson’s own background as a former public defender.

“Representation so matters, and to the extent that people feel like the court is representative of them, I think that will matter in terms of its long-term legitimacy,” said Leonard M. Baynes, dean of the University of Houston Law Center, who was among more than three-dozen Black deans of U.S. laws schools who advocated for Jackson’s confirmation in a letter to lawmakers.

Jackson, now a federal judge, once served as a public defender, a role underrepresented in the federal judiciary at large, but especially at the Supreme Court, where she would be the first former public defender to serve as a justice.

She’d also be the first since the late Justice Thurgood Marshall, the nation’s first Black justice, to bring significant experience representing criminal defendants to the nation’s highest court.

Sen. Lindsey Graham (R-S.C.) spent an outsized portion of his time Tuesday grilling Jackson on her time defending Guantanamo Bay detainees, despite insisting he did not hold the work against her.

The trend demonstrated a “lack of understanding” of the public defender role, said National Legal Aid and Defender Association President April Frazier Camara.

“It’s interesting to contrast whether or not judges with previous prosecution experience have been targeted in this way, and I don’t think we would find that to be the case,” Camara said.

Current justices Sonia Sotomayor, Samuel Alito, and Neil Gorsuch all spent time as prosecutors.

“Public defense as a profession, in no way, shape or form, should be on trial,” Camara told Bloomberg Law.

The characterization of public defenders by some senators during the hearing “perpetuates ignorance” around the crucial role of public defense in the judiciary, said National Association for Public Defense Executive Director Lori James-Townes.

Stereotypical soundbites against public defense are “what captures people’s attention,” said Radhika Singh, National Legal Aid and Defender Association policy vice president.

And that’s part of the playbook of using unpopular defendants to target judicial nominees with public defense backgrounds in confirmation hearings, said Brennan Center for Justice judiciary program director Alicia Bannon.

“To attack someone for doing that job zealously is really an assault on the Constitution,” Bannon said.

Ghosts of Confirmations Past

Graham set a tone in remarking on the treatment that Justices Amy Coney Barrett in 2020, and Brett Kavanaugh in 2018, received during their hearings.

“One of the first things I was taught in law school was to let go of the idea that the Supreme Court is a nonpartisan body, because with the modern confirmation process, party affiliations come into play every single moment,” said Jada Haughton, president of the Black Law Students Association at the Catholic University of America Columbus School of Law.

“The opening statements of these senators shows just how true that is—there was so much focus around what has happened in past confirmation hearings and how partisan behaviors have potentially contributed to that.”

Several times Tuesday Jackson acknowledged the historic role she’d play as the nation’s first Black woman on its highest court.

“I stand on the shoulders of generations past who never had anything close to this opportunity,” she testified.

Law students who back Jackson, particularly students of color, expressed a sense of hopefulness, saying her nomination and even the hearings themselves confirmed they could aspire to the upper echelons of the legal profession.

“I remember in 5th grade, I said I wanted to be a Supreme Court justice,” said Washburn University School of Law Black Law Students Association President Angelique Brown. “I didn’t know what all that entailed, but I knew I had to go to law school and I’m graduating in May, but that idea has never left my mind.”

“Looking at her entire career and seeing her make it to this point made me emotional because it’s like, ‘In 15 years, just you wait,’” she said. “‘I’m coming up behind you.’”

To contact the reporters on this story: Ayanna Alexander in Washington at aalexander@bloomberglaw.com; Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com; Maeve Allsup in San Francisco at mallsup@bloomberglaw.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Meghashyam Mali at mmali@bloombergindustry.com