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Judge Jackson’s Public Defender Past Is a Strength, Not a Weakness

March 23, 2022, 8:00 AM

In addition to her race and her gender, there is another factor that distinguishes Ketanji Brown Jackson from almost every other U.S. Supreme Court justice, now or ever: her prior professional experience as a public defender.

As part of her very distinguished legal career, Judge Jackson served for two-and-a-half years as an assistant federal public defender. As a public defender she represented people accused of crimes ranging from unlawful possession of tools, to making fake identification documents to acts of terrorism crimes the U.S.

This is the fourth time Jackson faces confirmation hearings—another impressive and distinguishing qualification in our current bitterly partisan climate. She has previously been confirmed to serve as a member of the U.S. Sentencing Commission, as a judge for a U.S. district court, and again as a judge for the U.S. Court of Appeals for the District of Columbia.

Jackson’s public defender background is not new information for the senators questioning her during her confirmation hearings. But it promises to be fodder for controversy just the same.

For example, Sen. Josh Hawley (R-Mo.) has said that judicial nominees who have served as public defenders “are going to have to answer for the clients they represented” just “like any other attorney who has had practice experience.”

But as Hawley and other senators must know, public defenders are not “like any other attorney.”

Gideon and Indigents’ Right to a Defense

Both of us are former public defenders. As public defenders, we were appointed by the court to represent poor people who are criminally accused.

Most public defender offices, as they operate today, were created by the Supreme Court in 1963 in Gideon v. Wainwright. In that case, the Supreme Court held, 9-0, that the Constitution requires states to provide attorneys for indigent defendants charged with serious crimes.

Clarence Earl Gideon wrote his petition to the Supreme Court in pencil and sent it from his prison cell. The case is such an important cultural touchstone that it was chronicled in an award-winning book, Gideon’s Trumpet, and in a movie starring Henry Fonda.

Appointed by the court means exactly that. Public defenders do not have the option of choosing whom to defend. Every criminal defendant facing the state as it threatens to take that person’s liberty—or, in some cases, that person’s life—is entitled to a defense. And not just a cursory defense.

Public defenders cannot throw cases. Doing so would be profoundly unethical. Offering a zealous defense does not make a public defender pro-crime.

Offering a zealous defense makes a public defender pro-fairness and pro-Constitution.

Courage to Represent the Powerless

But that is not the only perspective working as a public defender affords. As public defenders we had a front-row seat to the subjugation of the least powerful.

As a federal public defender, Jackson would have seen assistant U.S. attorneys use high statutory maximums and minimums and overcharging to coerce people to give up their constitutional rights to trials.

She would have seen a government that de-prioritizes the crimes of the rich and powerful and pour resources into the prosecution of people suffering from mental illness, substance abuse, and generational trauma. And the Supreme Court needs this perspective.

The title Gideon’s Trumpet, of course, comes from the name of the defendant, Clarence Earl Gideon, and the biblical story about Gideon, a powerless man who used trumpets and torches—instead of a pencil in his prison cell—to face overwhelming odds. Both Gideons won despite the odds.

Public defenders find themselves and their clients in this same position every day, facing the well-resourced, awesome power of the state. This means that public defenders must have a daily practice of courage. Being brave is the first qualification of their job description.

This is another important perspective that Jackson will bring, honed from a lifetime of imagining herself in a Supreme Court seat even though no Black woman had ever even been nominated. Another rare quality she possesses is courage, honed from a lifetime of achieving goals that have seemed out of reach for most Black women.

Jackson’s unique perspective is badly needed in a country with little confidence in the court system or the Supreme Court itself. Her public defender experience is, unquestionably, a strength. She is the best candidate for the job.

Keep up to date with the latests news and analysis of Ketanji Brown Jackson’s confirmation hearings on this free Bloomberg Law website.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Vida B. Johnson is an associate professor of law at Georgetown Law where she teaches in the criminal defense and criminal justice clinics. Prior to her position at Georgetown, she was a supervisor at the Public Defender Service for the District of Columbia where she worked for over seven years.

Robin Walker Sterling is the associate dean for clinical education, the director of the Bluhm Legal Clinic, and the Mayer Brown/Robert A. Helman Professor of Law at the Northwestern Pritzker School of Law.

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