Opinion: Inappropriate attacks on Ketanji Brown Jackson ignore the Constitution
Regardless of political affiliation or judicial philosophy, the attacks that are beginning on Supreme Court nominee Judge Ketanji Brown Jackson by members of the U.S. Senate for her work as a public defender are inappropriate and disgusting.
The senators making these attacks seem to forget that they took an oath to uphold the Constitution. The Constitution includes the Sixth Amendment right to counsel and other due process protections for defendants in criminal cases.
In the 1963 case Gideon v. Wainwright, the Supreme Court stated: "Lawyers in criminal cases are necessities, not luxuries." Additionally, the ethics rules that all lawyers must follow require zealous representation of all clients. Any criminal defense lawyer also knows there is an unwritten rule that when a judge wants to appoint you on a case, you don’t say no.
I occasionally get asked how I could defend certain clients. My answer is that defending a client is absolutely not an endorsement of their conduct – it’s an endorsement of the Constitution and due process.
My favorite historical illustration of this point is when John Adams defended the British soldiers who were charged with murder for their part in the Boston Massacre in 1770. At the time, Boston was the center of anti-British feelings in the 13 colonies. The British soldiers were, of course, publicly despised, and several lawyers had refused to take on the case before Adams was asked.
So why would Adams, a leading patriot in his day, agree to defend the soldiers without hesitation? The main reason was that he believed every person charged with a crime is entitled to a fair trial and a competent defense.
All eight of the soldiers were found not guilty of murder. Two of them were convicted of a lesser charge of manslaughter and branded on the thumb as first offenders. This result was a far cry from what an angry public was wishing for, and it showed that the jury paid attention to the facts and followed the law. The jury didn't let popular public perceptions affect their verdict. This verdict is also a good illustration of how law enforcement doesn’t always get it right when charges are filed.
Ultimately, Adams was proud of his work in this case. Years later he wrote:
"The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country."
If the British soldiers had not received a fair trial, how would our due process rights have evolved? Would we have the constitutional protections that keep mob rule out of the courtroom and prevent us from living in a police state? How would mistakes by law enforcement be discovered and corrected? Allowing these protections to be eroded for the worst of the worst erodes these protections for all of us. Criminal defense lawyers are the last line of defense for these protections. Think about that the next time you're pulled over by a police officer.
With the confirmation hearings for Judge Jackson beginning, I sincerely hope that the members of the Senate who have initiated the above-mentioned attacks on her think of the Constitution and their oaths to uphold it. Appropriate spirited political debate is a cornerstone of our system of government. Attacking lawyers for doing their jobs and enforcing the Constitution is nothing but bush league tactics.
James Bogen is a lawyer in Downtown Cincinnati and focuses his practice on criminal and DUI defense and juvenile delinquency cases. He has defended cases ranging from traffic violations to capital murder.
This article originally appeared on Cincinnati Enquirer: Opinion: Inappropriate attacks on Ketanji Brown Jackson ignore the Constitution
