Republicans bark up the wrong tree with newest Supreme Court Justice Brown Jackson

In Ketanji Brown Jackson, the first African-American woman on the United States Supreme Court, the country receives an experienced trial court and appellate judge.

Unlike other law clerks to the Supreme Court, Josh Hawley (R-Missouri) and Ted Cruz (R-Texas), also graduates of Harvard Law, Justice Jackson took her prestigious clerkship and academic credentials to the front lines as a public defender in our federal trial courts to represent those in greatest need of legal representation.

More: Ketanji Brown Jackson confirmed by Senate as first Black woman on US Supreme Court

As a line deputy Assistant Federal Defender, Jackson took on all the needy, undesirable, marginal, mentally challenged, drug addicted — and sometimes innocent — people accused of crimes who have neither the money nor the means to hire a lawyer of their own. As all public defenders learn, our fundamental rights in the heart of the Bill of Rights – Fourth, Fifth and Sixth, Eighth and 14th Amendments – may land on their daily docket.

When Justice Jackson opened her remarks to the Judiciary Committee, she was not merely giving lip service to the script “Equal Justice Under Law” over the Supreme Court’s façade, but felt in her bones its meaning. So did Chief Justice Earl Warren when he penned the landmark decision, Gideon v. Wainwright (1963), which overturned precedent and mandated attorney assistance for all persons accused of crime in state courts.

When Senator John Cornyn (R-Texas), a former judge himself, began his examination of Judge Jackson in his patronizing tone by asking her to “play (legal) nerd with me” in an apparent attempt to dumb down the law for his base, he declared that he never understood why lawyers use Latin instead of English. Asking her if she would abide by that “nerdy” thing called “stare decisis” to cases that came before her, perhaps a few of his constituents understood that to “stand by things decided,” stare decisis means to abide by precedent (another Latin-derived word). The legal doctrine that all judges have applied for millennia also comes from the best the Roman republic gave us. Occasionally, however, even the most conservative Supreme Court may set aside stare decisis.

Looking for a more fruitful line of attack, Senator Cornyn next seemed to choke on the necessity of public defenders to our adversarial system of justice. To hear him exploit Thurgood Marshall, the Supreme Court’s first African-American justice, and an active defense lawyer for the NAACP before being appointed Solicitor General for the United States, was enough to make me wince.

Senator Cornyn paraphrased the aphorism of law that “every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer.” Senator Cornyn was referring to Justice Marshall’s dissent in Strickland v. Washington (1984), in which the majority upheld the death sentence of David Leroy Washington, executed two months after the court reinstated his death sentence in a trial in which his counsel was barely competent, Judge Cornyn backhanded Judge Jackson by saying she seemed “over the top” in her two and one-half-year stint as a federal defender.

Senator Cornyn’s facile effort to turn Judge Jackson’s service as a public defender into extremism is nothing unusual. Many judges find public defenders a necessary annoyance to putting criminals behind bars. But Judge Jackson understood as a trial judge the important role defense counsel plays in advocating and preserving the rights for their clients and to secure the best possible outcome. When she became an appellate court judge, she reviewed the denial of the arguments made in trial courts. She understood what Thurgood Marshall was referring to as “vigorous advocacy” and did her best to assert and preserve constitutional claims for her clients, as all conscientious public defenders learn to do.

Republican senators also decided to demean Judge Jackson’s service as a public defender as part of a soft-on-crime tactic. They had no legitimate basis to challenge her credentials, experience or moral character.

The hearing for Republicans was not about substantive issues. They knew that American Bar Association officials vetted her qualifications with over two hundred witnesses and found her eminently qualified in all professional and moral categories. Her qualifications are impeccable. It seems the purpose of Republican senators was to impress their constituents back home with rhetorical flourish, as evidenced by Senator Ted Cruz checking his cell phone for social media responses during his examination of Judge Jackson.

Indeed, with Senators Cruz and Josh Hawley trying to upstage each other for their 2024 presidential campaigns, Republicans pursued the soft-on-crime tack by examining nine child pornography sentences Judge Jackson had handed down as a DC district court judge. Senator Cruz interrupted Jackson during each of her responses to the questions he asked, more interested in his own agenda than the answers.

Senator Hawley’s idea of justice is somewhere between Henry VIII and Adolf Hitler. Every defendant convicted of a crime deserves the maximum sentence, “Off with their heads!”

In one infamous case, Senator Hawley, former prosecutor and Attorney General of Missouri, advocated on appeal to uphold a 241-year sentence handed down by a trial judge for a 16-year-old Black teenager who had committed a series of robberies on one day. No one was killed or seriously injured, but Hawley continued to argue — over the objection of the trial judge’s misgivings about her harsh consecutive sentences — that it did not constitute “cruel and unusual punishment.”

From Hawley’s perspective, Judge Jackson’s highlighted sentences in child pornography cases which did not follow the upward sentence recommended by the prosecution amounted to soft-on-crime sentencing practices. Selected from hundreds of other sentences, child pornography cases are highly emotional and controversial. As Senator Sheldon Whitehouse (R-Rhode Island), a former United States Attorney himself, pointed out during the hearings, sentencing guidelines in child pornography cases are some of the most ambiguous and draconian laws on the books. No one defends child pornography, but the demographics of consumers — mostly white, middle-aged men — have been compared to the unequal sentences for crack cocaine possession by mostly poor Black consumers to powder cocaine consumed by mostly rich white college students. Reform of child pornography sentence guidelines continues to be taken seriously.

Indeed, perhaps the most conservative federal judge in our community sentenced a 60-year-old former associate of mine to thirteen months in federal prison on a child pornography case he could have received upwards of 10 years. Federal court judges take into account many factors (age, lack of criminal record, work history, family, probation recommendations, etc.) and rarely sentence to the maximum allowable by the congressional Guidelines.

We expect district court judges to be independent and to exercise their best judgment in applying the Guidelines, and that is exactly what Judge Jackson explained she did in the hundreds of cases she handled as a district court judge. Senators Cornyn, Cruz and Hawley were barking up the wrong tree.

Justice Ketanji Brown Jackson is a welcome addition to the Supreme Court of the United States with a unique perspective, as a woman, a person of color, a former public defender, trial and appellate court judge, and the academic credentials to back up her experience. We should welcome this newest member of the high court and celebrate our strength in diversity.

Phillip H. Cherney is a lawyer who has represented the infamous Oakland drug czar, Felix Mitchell, Richard Allen Davis in the Polly Klaas kidnap/murder case, and Joel Radovcich, whom Dana Ewell hired to kill his sister and parents in Fresno in 1992. He is an adjunct professor at San Joaquin College of Law.

This article originally appeared on Visalia Times-Delta: Hawley, Cornyn bark up wrong tree with SCOTUS's newest confirmation