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Jackson confirmation hearings highlight lack of public defender experience on the bench

person speaks into microphone
In this Wednesday, April 28, 2021, file photo, Ketanji Brown Jackson testifies before a Senate Judiciary Committee hearing following her nomination to be a U.S. Circuit court judge. (Tom Williams/Pool Photo via AP)

Supreme Court Nominee Ketanji Brown Jackson has faced criticism during this week’s Senate confirmation hearings over her previous work as a public defender.

Jackson, who is expected to be confirmed, would be not only the first Black woman to serve as a justice of the Supreme Court, but also the first to have experience defending clients who can’t afford a lawyer in criminal cases.

The last justice with any experience representing criminal defendants was Thurgood Marshall who served 30 years ago. 

In 2020, the Center for American Progress highlighted the lack of professional diversity on the bench, finding that only about 8% of federal judges are former public defenders. 

May Mailman is a senior fellow with Independent Women’s Law Center and was a legal advisor to former President Donald Trump. Her organization opposes Jackson’s confirmation.

“I don’t think that a public defender should be precluded,” Mailman said. “But there’s a reason why it hasn’t happened before, and it’s because these are very different approaches to how to look at the world.”

Specifically, Mailman said, the way public defenders look at the law. 

“Public defenders really do believe that the system is oftentimes unfair. And maybe there are pieces of the system that are unfair, but there’s nothing more part of the system than the Supreme Court,” she said.

In addition to Jackson’s career as a U.S. district court and federal appeals court judge, she worked as a federal public defender from 2005 to 2007. She’s been skewered by some Republicans for her record and judicial philosophies - including her representation of people detained at Guantanomo Bay who were suspected of terrorism.

This was shortly after the Supreme Court ruled that foreign citizens held at Guantanamo had a right to challenge their detentions in U.S. courts. 

Public defenders do not have the power to choose who they represent in criminal cases and must take any and every case given to them. They represent poor defendants who otherwise wouldn’t be able to afford an attorney. The Constitution guarantees the right to counsel to anyone accused of a crime. 

Chesterfield’s Chief Public Defender My’chael Jefferson-Reese and other members of Black Public Defender’s Association rallied at the U.S. Capitol on Monday to support Jackson’s confirmation. 

“You should understand what it’s like to stand beside someone whose entire life is in jeopardy,” Jefferson-Reese said. “She brings diverse experience, diverse perspective that has never been present on the Supreme Court. And it’s needed.”

Conservatives also took aim at her approach to sentencing, alleging she’s been too lenient on people convicted of sex offenses. Jackson resisted claims by some Republicans that, as a federal trial judge in Washington, she let sex offenders off the hook, noting her sentencing decisions were consistent with what the law recommended and in line with those of other judges across the country.