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Jackson’s Guantanamo Work Prompts Republican Criticism (2)

Feb. 25, 2022, 2:28 PMUpdated: Feb. 25, 2022, 8:10 PM

Ketanji Brown Jackson’s work supporting alleged terrorists’ legal claims could become a flashpoint in her Supreme Court confirmation hearings.

Her public-defense experience “in the trenches,” as she put it, means Jackson brings a different perspective than the justice she would replace as Republican senators have criticized defenders and civil-rights lawyers in recent hearings, including taking aim at a federal trial-court nominee who worked to exonerate people for the Innocence Project. If confirmed, Jackson would be the court’s first former public defender.

“When you have been on the receiving end of some of the actions of the government, or your client has been on the receiving end, it tends to give you a different perspective of how much deference is due to government officials who are asserting their authority,” said Victor M. Hansen, a New England Law professor who served a 20-year Army career and has worked on both the prosecution and defense side of military cases.

Jackson wouldn’t broadly shift the court’s approach to criminal-justice matters, given the conservative bloc’s 6-3 majority. But her defense experience generally, and on behalf of Guantanamo detainees in particular, is likely to be a focus for Republican senators who have scrutinized Biden judicial nominees, including career public defenders whom Republicans have “nearly unanimously opposed,” according to an Alliance for Justice report.

Jackson served as an assistant federal public defender in Washington from 2005 to 2007, where the issues she worked on included habeas-corpus rights for Guantanamo detainees in Khi Ali Gul v. Bush. It was one of the most significant cases she ever litigated, Jackson told the Senate Judiciary Committee considering her nomination to the D.C. Circuit last year.

While in private practice subsequently at Morrison & Foerster, Jackson worked on Supreme Court amicus briefs in Guantanamo cases, filed on behalf of former judges and the libertarian Cato Institute and other groups supporting detainees’ claims. One of those cases was the landmark Boumediene v. Bush, a 2008 case in which the court said terror suspects held at the U.S. naval base in Cuba can challenge their detention.

“Despite Jackson’s claim that she did not get to choose her clients as a public defender, she continued to advocate for Guantanamo terrorists when she went into private practice,” the Republican National Committee said in a statement Friday criticizing President Joe Biden’s pick.

Judiciary Committee Republicans last year spotlighted the Guantanamo work as Jackson, who Barack Obama appointed a federal trial court judge in 2013, appeared at her confirmation hearing for the D.C. Circuit.

Sen. Tom Cotton (R-Ark.) asked if she “ever represented a terrorist at Guantanamo Bay?” In written follow-up questioning, Sen. Ben Sasse (R-Neb.) asked if she considered resigning instead of fulfilling her public-defender assignment.

Citing an ethical obligation to zealously represent clients, Jackson said “it would be inappropriate for me to comment on whether I disagreed with Khi Ali Gul, found his alleged crimes offensive, or considered resigning my position as an Assistant Federal Public Defender based on any such disagreement or offense.” She noted that her brother was deployed to Iraq with the U.S. Army.

Jackson touted that military service at the White House announcement of her nomination Friday. “I believe that he was following the example set by my uncles who are in law enforcement,” she said.

Replying to Sasse last year, Jackson said she was “keenly and personally mindful of the tragic and deplorable circumstances that gave rise to the U.S. government’s apprehension and detention of the persons who were secured at Guantanamo Bay.” She added that she was “also among the many lawyers who were keenly aware of the threat that the 9-11 attacks had posed to foundational constitutional principles, in addition to the clear danger to the people of the United States.”

If confirmed, Jackson would bring criminal-defense experience not seen on the court since Thurgood Marshall, the first Black justice appointed in 1967. Jackson was confirmed to the D.C. Circuit last year with three Republican votes; she wouldn’t need any to reach the high court if all Democrats support her in the 50-50 Senate, with Vice President Kamala Harris available to break a tie if needed.

Kyndra Rotunda, a Chapman University professor who served as a prosecutor against Guantanamo detainees, applauded the notion of putting a public defender on the court. But she called Jackson’s experience “a double-edged sword.”

“Yes, she will be more intimately familiar with what’s going on in Guantanamo Bay,” Rotunda said. “But we have to remember that she’s viewed this entirely through the lens of defense counsel.”

It’s that lens that appeals to progressives and others critical of a prosecutor-heavy bench.

“Our system of justice has been set up to be adversarial,” said Lena Zwarensteyn, senior director of the Fair Courts Program at The Leadership Conference on Civil and Human Rights, which supported Jackson’s D.C. Circuit confirmation.

“And when you have so many judges who are former prosecutors that are on the bench at all levels of the federal judiciary, having a bit more balance when it comes to who is helping decide matters of life and death for so many people is very important,” she said.

Currently, the most consistent voice for defendants, Justice Sonia Sotomayor, is a former prosecutor. During an NYU event last year, Sotomayor lamented the lack of professional diversity on the court, including the lack of criminal-defense experience “outside of perhaps some white-collar work.”

Baher Azmy, legal director for the Center for Constitutional Rights, who has litigated for Guantanamo detainees, sees significance not just in Jackson’s defense work but in her Guantanamo work in particular.

“As a federal defender, she has probably seen a lot of really harsh policies and practices and sentencing regimes, but it was a process contained within the conventional rule of law,” Azmy said. “Guantanamo was a profoundly extra-constitutional project.”

—With assistance from Madison Alder

(Adds Jackson comments from White House ceremony. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

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