On March 21, 22 and 23 of this year, over 9 million viewers tuned in to Fox News, MSNBC or CNN to watch the confirmation hearings of Judge Ketanji Brown Jackson, a nominee for the office of Associate Justice of the Supreme Court.1 After being confirmed by a vote of 53-47, she and Justice Sotomayor will be the only members of the Court with experience as federal trial judges.2 From the moment that Judge Jackson was nominated, it was almost foreordained that her nomination would be confirmed. In the absence of an unforced error, the votes for her confirmation were there – and there were no unforced errors. It helped, of course, that Judge Jackson was imminently qualified:
The U.S. Senate has already confirmed Judge Jackson three times with bipartisan support on each occasion. Since June 2021, Judge Jackson has served with distinction on the U.S., Court of Appeals for the D.C. Circuit. Prior to her elevation to the D.C. Circuit, she spent eight years as a district court judge on the U.S. District Court for the District of Columbia. Before her judicial service, she served as vice chair of the U.S. Sentencing Commission from 2010 to 2014. Judge Jackson worked as an assistant federal public defender in the Office of the Federal Public Defender in the District of Columbia and as assistant special counsel at the U.S. Sentencing Commission. She has also worked in private practice as of counsel at Morrison & Foerster and as an associate at the Feinberg Group, Goodwin Proctor, and Miller, Cassidy, Larocca & Lewin. She also helped train future lawyers, teaching classes on trial advocacy and federal sentencing at Harvard Law School and George Washington School of Law, respectively. A graduate of Harvard University and Harvard Law School, she clerked for Judge Patti Saris of the U.S., District Court for the District of Massachusetts. Judge Bruce Selya of the U.S. Court of Appeals for the First Circuit, and Associate Justice Stephen Breyer of the Supreme Court.3
As a former federal defender, she will join a small number of other federal defenders who have been appointed to serve as federal judges and will be the first to serve on the Supreme Court.
According to a study by the libertarian think tank Cato Institute, prosecutors dominate the ranks of the judiciary. As of April 2021, 318 former prosecutors were sitting as federal judges, more than one-third of the 880 total across the country. This was followed by 243 lawyers who had represented the government as ‘noncriminal courtroom advocates.’ Among the smallest fractions of those who became federal judges were former criminal defense attorneys – about 76 total – and former public defenders, who numbered only 58, less than 7 percent of all judges.4
Judge Jackson, as anticipated, showed patience and grace in the face of inane or posturing questions, personal attacks, misstatements of what she had said and written as a judge and the less than courteous treatment of her by some of the senators.
Their first attack on Judge Jackson was for her service as a federal defender; e.g.,
- ‘Sen. Ted Cruz… cast Jackson’s work as a public defender as revealing a character flaw.
‘People go and do that because their heart is with criminal defendants, their heart is with the murderers, with the criminals, and that’s who they are rooting for,’ Cruz said on Fox News last weekend. He added that ‘public defenders often have a natural inclination in the direction of the criminal’ and claims Jackson ‘carried it onto the bench when she became a criminal judge.’5
- Senator Mitch McConnell,… the minority leader, has doubled down on his suggestion that Judge Jackson’s experience as a public defender could influence her view of the law and lead her to favor criminal defendants.
‘Her supporters look at her resume’ and deduce a special empathy for criminals,’ Mr. McConnell said in a lengthy floor speech in which he argued that her work on behalf of the accused was a blot on her record. ‘I guess that means that government prosecutor and innocent crime victims start each trial at a disadvantage.’6
- On Tuesday, Sen. Tom Cotton… went so far as to liken Jackson’s representation of Guantanamo detainees to representing Nazis in the Nuremberg Trials.
‘You know, the last Justice Jackson’ – Robert H. Jackson – ‘left the Supreme Court to go to Nuremberg and prosecute the case against the Nazis,’ Cotton said. ‘This Judge Jackson might have gone there to defend them.’
Cotton took care to note not only the cases Jackson was assigned as a public defender, but also briefs she filed while in private practice. One was on behalf of 20 former federal judges who wanted to make a point about the admissibility of evidence gained via torture. Another was on behalf of outside groups, including the libertarian Cato Institute. In her hearings, Jackson said she was assigned the case while working for a big law firm, which had itself been assigned the case.7
If Senator Cotton had done even the slightest bit of research on Justice Jackson, he might not have spoken of the former Associate Justice.
It’s true the justice left the court temporarily to prosecute Nazis at Nuremberg after World War II. But here’s the thing: Jackson not only supported the Nuremberg defendants’ right to counsel, he was a key part of the governing body that enshrined it into international law.
On May 2, 1945, President Harry S. Truman appointed Jackson to lead an American delegation to prepare and prosecute war crimes charges against European Axis powers. The appointment of such a high-ranking official prompted the other Allied powers to take the trials seriously, according to St. John’s University law professor and Jackson scholar John Q. Barrett.
But before trials could even start, the international delegation had to agree on a framework.
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The constitution of the Nuremberg trials was a constitution [Jackson] wrote. ‘He believed in it seriously.’
Section Four, Article 16 concerned safeguards for a fair trial, including that a ‘Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.’
Not only were defense attorneys guaranteed, ‘they were on the U.S. payroll,’ Barrett said. Most of the defense attorneys were German professionals, and ‘the U.S. gave them housing and mess privileges. Germany was in rubble, so it was a good deal to be one of those defense attorneys.’
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‘Justice Jackson believed everyone has the right to a fair trial, which includes a vigorous defense,’ said Kristan McMahon, president of the nonprofit Robert H. Jackson Center, adding, ‘And without that, a trial would not be fair.’8
Although I was surprised at these attacks on Judge Jackson as a federal defender, both she and her handlers should have anticipated them.
Shortly after her nomination was announced, the Republican National Committee issued a statement criticizing her public defender experience, specifically citing her work representing detainees being held at Guantanamo Bay.9
Also, at the earlier confirmation hearings for district court nominees Nina Morrison and Adriana Freeman, Senators Cotton, Hawley and Cruz made comments similar to those made at Judge Jackson’s hearings; e.g.,
- Last month, Sen. Tom Cotton… asked Biden judicial nominee Nina Morrison, who worked for decades on the Innocence Project, which seeks to appeal convictions, ‘Are you proud that you encouraged such defiance in convicted murders?’
- And just a few weeks ago, Sen. Josh Hawley … asked another nominee, Arianna Freeman, about having represented a convicted murderer and getting him off death row: ‘Do you regret trying to prevent this individual who committed these heinous crimes from having justice served upon him?’
- Ted Cruz … told Freeman that she had ‘devoted your entire professional career to representing murderers, to representing rapists, representing child molesters.’10
Their second attack on Judge Jackson was for the sentences that she had imposed in child pornography cases; e.g.,
- Senate Judiciary Committee member Ted Cruz expanded on his questioning of Supreme Court nominee Ketanji Brown Jackson’s rulings Tuesday on ‘Hannity.’ Cruz, R-Texas, told host Sean Hannity that in nearly every sex offender case she was involved in, she handed down ‘substantially’ weaker sentences that the guidelines provided. Cruz said that Jackson’s average sentencing was 48% less than what prosecutors asked for in all cases allowing judicial discretion, referencing one case where she sentenced the offender to three months in jail, when the federal sentencing guidelines said 10 years.11
- Senator McConnell said, ‘In the specific area of child exploitation crimes, the nominee was lenient to the extreme.’12
- Senator Graham attacked Jackson as she outlined her concerns with the federal sentencing guidelines for child pornography possession and distribution. When Jackson explained that the guidelines could result in 50 years of confinement for 15 minutes spent on a computer, Graham shot back, ‘Good! Good. Absolutely, good. I hope you go to jail for 50 years if you are on the Internet trolling for images of children…’13
and
‘Every judge who does what you are doing is making it easier for the children to be exploited,’ said Senator Lindsey Graham,…picking up the line of attack.14
- Senator Josh Hawley…said he would not consider a below-guidelines child porn sentence ‘acceptable’ from a nominee…15
and
‘In fact, in every case for which I can find records and Judge Jackson had discretion, she gave child porn offenders sentences below the guidelines and below what the prosecutors were requesting,’ Hawley wrote. ‘This isn’t a one-off. It’s a pattern.’16 (emphasis added)
and
Hawley maintained her sentences were not long enough. When Jackson gently reminded him her sentences were consistent with those imposed by other judges, Hawley ultimately responded that what Congress really wanted was the restoration of mandatory guidelines.17
Senator Hawley’s comments are disturbing for they constitute an attack on our independent judiciary. It has been 17 years since the Supreme Court held that the United States Sentencing Guidelines are advisory rather than mandatory.18 Judges are, in fact, required to impose a sentence sufficient, but not greater than necessary rather than to impose a Guidelines sentence.19
If Senator Hawley had reviewed the annual report of the United States Sentencing Commission,20 he would have learned that Judge Jackson’s sentencing record was in the mainstream in comparison with the records of other United States District Judges in these cases.
The U. S. Sentencing Commission, the bipartisan body created by Congress to set federal sentencing rules, explained in its 2021 report that suggested prison terms for defendants convicted of possessing child pornography – as opposed to producing the materials – have ‘been subject to longstanding criticism from stakeholders and has one of the lowest rates of within-guideline range sentences each year.’
‘Less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range in fiscal year 2019,’ the reporter said.
If and when we properly contextualize Judge Jackson’s sentencing record in federal child porn cases, it looks pretty mainstream,’ wrote Doug Berman, a leading expert on sentencing law and policy at The Ohio State University School of Law.
‘Federal judges nationwide typically sentence below the [child porn] guideline in roughly 2 out of 3 cases,’ Berman noted on his blog, and ‘when deciding to go below the [child porn] guideline, typically impose sentences around 54 months below the calculated guideline minimum.’
Berman also points out that government prosecutors often request below-range sentences, including in most of the Jackson cases that Hawley cited.21
Although Senator Hawley earlier said that he would not consider a below-guidelines sentence from a nominee to be “acceptable,” he and his colleagues had, in fact, raised no such issues during the confirmation hearings of judges nominated by then President Donald J. Trump or in the earlier confirmation hearings for Judge Jackson when she was nominated to serve as a judge on the D.C. Circuit.
An ABC News review of federal judges appointed and confirmed during the Trump administration found nearly a dozen had handed down below guideline sentences in cases of defendants viewing, possessing, transporting or distributing child pornography.22
…Mr. Hawley, Mr. Graham, Mr. Cotton and Mr. Cruz all voted to confirm judges nominated by President Donald J. Trump to appeals courts even though those nominees had given out sentences lighter than prosecutor recommendations in cases involving images of child sex abuse. Mr. Graham had also voted to confirm Judge Jackson to the U.S. Court of Appeals for the District of Columbia Circuit in 2021 in spite of the sentencing decisions she had made as a district judge. (emphasis added)
In 2017, Judge Ralph R. Erickson was confirmed by a 95-1 vote to the U.S. Court of Appeals for the Eighth Circuit, with Mr. Cotton, Mr. Cruz and Mr. Graham voting in the affirmative. (Mr. Hawley was not yet a senator.)
Judge Amy J. St. Eve was confirmed by 91-0 vote in 2018 to the U.S. Court of Appeals for the Seventh Circuit.
Most recently, Mr. Cotton, Mr. Cruz and Mr. Hawley voted to confirm Judge Andrew L. Brasher to the U.S. Court of Appeals for the 11th Circuit in 2020. (Mr. Graham was not present for the vote.)23
The questions of Senators Hawley and Graham, in particular, and their comments to the media cause me to be concerned that there could be a rush to pass legislation that would provide for a mandatory minimum sentence for the offense of possession of child pornography. Currently, the punishment provision for that offense does not provide for a mandatory minimum sentence.24
This would be a tragedy. Anyone who possesses child pornography has received it and anyone who receives child pornography has possessed it. Currently, the punishment provision for the offense of the receipt of child pornography provides for a mandatory minimum sentence of 5 years.25
Because possession cases currently do not have a mandatory minimum and receipt cases do, Assistant United States Attorneys have the ability to limit a district judge’s sentencing discretion in these cases by their charging decisions. What should be a possession case to one Assistant United States Attorney might be a receipt case to another and there is often no consistency within a United States Attorney’s office. At the present, we can at least try, during plea negotiations in these cases, to avoid a mandatory minimum sentence for our clients by seeking a possession count rather than a receipt count.
The current climate in Congress during this election year, perhaps exacerbated by Judge Jackson’s confirmation hearings, has doomed the passage of the Equal Act which would eliminate the current 18-1 disparity in sentencing for crack cocaine versus powder. That will also deny significant relief to more than 7,600 inmates. This will come as a disappointment to those of us who have followed the progress of this legislation.
Washington — The Equal Act would appear to be a slam dunk even in a badly divided Congress.
The legislation, which aims to end a longstanding racial disparity in federal prison sentences for drug possession, passed the House overwhelmingly last year with more than 360 votes.
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But with control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of the measure is in doubt.
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The legislation would eliminate the current 18-1 disparity in sentencing for crack cocaine versus powder. The policy that can be traced to the ‘war on drugs’ mind-set of the 1980s, which treated those trafficking in crack cocaine more harshly. It resulted in a disproportionate number of Black Americans facing longer sentences for drug offenses that white Americans, who were usually arrested with the powder version.
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The United States Sentencing Commission has said that passage of the legislation could reduce the sentences of more than 7,600 federal prisoners. The average 14-year sentence would be cut by about six years, it estimated.
* * *
Senator Tom Cotton, the Arkansas Republican who led the opposition to the First Step Act, said he was in no mood to let the Equal Act sail through. He has said that if the disparity is to be erased, penalties for powder cocaine should be increased.
‘My opposition to the Equal Act will be as strong as my opposition to the First Step Act,’ Mr. Cotton said.26
* * *
I understand the senators’ attacks on Judge Jackson for her sentences in child pornography cases. Child pornography is so repugnant that there is a knee jerk response even to the mention of the words. From their perspective, it was just good politics.
In their attacks on criminal defense lawyers, the senators were simply exploiting a truth that we often ignore. Many – including our friends – do not understand what we do or why we do it. They can applaud our representation of the young or previously virtuous in cases that do not involve violence, but they cannot understand how, for example, we can raise an insanity defense when it is so obvious that our client committed the offense or how we can represent the defendant in a capital murder case when what our client is alleged to have done is so horrible. We are an easy target. So, what do we do in response to their attacks? We can ignore their slings and arrows or we can recharge our batteries.
For me, I began with the Texas Lawyer’s Creed. One of the first sentences in the creed reads, “I am passionately proud of my profession.” I would hope that we can all say that.
Next, I reminded myself of my duty to each of my clients. Our current Texas Disciplinary Rules of Professional Conduct gives us this guidance: “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” Paraphrasing the quote of former vice president John Nance Garner, that is about as exciting as warm spit.27
I prefer the charge of old Canon 5 which stated: “A lawyer who undertakes the defense of a criminal case shall raise every defense under the law in order that no man may be deprived of life or liberty without due process of law.”28 That was the Canon in effect when I was admitted to the practice of law in 1963 and it has guided me since that date.
Lastly, I looked for some inspiration and found it in the legal work of John Adams. In his review of the new book John Adams Under Fire: The Founding Father’s Fight for Justice in the Boston Massacre Murder Trial, Christopher Klein, writes,
The blood remained fresh on the snow outside Boston’s Custom House on the morning of March 6, 1770. Hours earlier, rising tensions between British troops and colonists had exploded into violence when a band of Redcoats opened fire on a crowd that had pelted them with not just taunts, but ice, oyster shells and broken glass. Although the soldiers claimed to have acted in self-defense, patriot propaganda referred to the incident as the Boston Massacre. Eight British soldiers and their officer in charge, Captain Thomas Preston, faced charges for murdering five colonists.
Not far from the Custom House, a 34-year-old Boston attorney sat in his office and made a difficult decision. Although a devout patriot, John Adams agreed to risk his family’s livelihood and defend the British soldiers and their commander in a Boston courtroom. At stake was not just the fate of nine men, but the relationship between the motherland and her colonies on the eve of American Revolution.29
Dan Abrams and coauthor David Fisher detail what they call the ‘most important case in colonial American history’ and an important landmark in the development of American jurisprudence.
MM Nussbaum relates the conclusion of the case and the pride that Adams had in his representation of those British soldiers.
In the trial that ensued, Adams argued that Captain Preston had never issued the order for his soldiers to ‘fire,’ and that those who had shot into the crowd did so entirely in self-defense. Adams called those within the mob that provoked the soldiers ‘outlandish Jack tars,’ among other things. Adams’ persuasion won the day, and Preston and six of his soldiers were acquitted of all charges. Two soldiers were found guilty of manslaughter and were punished by having their thumbs branded.
Ultimately, Adams was proud of his service to the British soldiers. Later in his life 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. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right. This however is no Reason why the Town should not call the Action of that Night a Massacre, nor is it any Argument in favour of the Governor or Minister, who caused them to be sent here. But it is the strongest Proofs of the Danger of Standing Armies.30
If there had been a Colonial Criminal Defense Lawyers Association, John Adams would surely have been one of its leaders. Now, I am inspired. It is time to put the attacks aside and to go back to representing our clients.
Footnotes
- [1]https://talkingpointsmemo.com/edblog/fox-news-won-network-ratings-jackson-hearings-this-week
- https://www.newyorker.com/news/daily-comment/the-republicans-wild-attacks-at-ketanji-brown-jacksons-confirmation-hearing
- https://civilrights.org/resource/support-the-confirmation-of-judge-ketanji-brown-jackson-to-the-supreme-court-of-the-united-states/
- PBS News Hour, “How Having a Former Public Defender on the Supreme Court Could Be ‘Revolutionary,’” March 21, 2022
- The Washington Post “Cruz and Cotton Cut to the Chase on GOP’s Suspicion of Defense Lawyers” – Aaron Blake, April 6, 2022
- The New York Times “On Eve of Confirmation Hearings, G.O.P. Steps Up Attacks on Jackson” – Carl Hulse, March 21, 2022
- The Washington Post “Cruz and Cotton Cut to the Chase on GOP’s Suspicion of Defense Lawyers” – Aaron Blake, April 6, 2022
- The Washington Post “What Tom Cotton Got Wrong About Nuremberg and Ketanji Brown Jackson” – Gillian Brockell, April 6, 2022
- https://www.pbs.org/newshour/politics/few-public-defenders-become-federal-judges-ketanji-brown-jackson-would-be-the-supreme-courts-first
- The Washington Post, “Democracy Dies in Darkness” by Aaron Blake April 6, 2022
- https://www.foxnews.com/media/ted-cruz-ketanji-brown-jackson-sex-offender
- https://www.nbcnews.com/politics/congress/republicans-say-voting-ketanji-brown-jackson-supreme-court-rcna22455
- https://www.salon.com/2022/04/08/lindsey-graham-is-a-total-hypocrite-on-jackson-and-child-porn-heres-why/
- https://www.nytimes.com/2022/03/24/us/qanon-supreme-court-ketanji-brown-jackson.html
- ABC News “Fact Check: Judge Ketanji Brown Jackson Child Porn Sentences ‘Pretty Mainstream’” April 12, 2022
- https://www.politifact.com/fackchecks/2022/mar/24/josh-hawley/josh-hawley-misleads-judge-jackson-and-child-porno/
- https://www.msnbc.com/opinion/msnbc-opinion/ketanji-brown-jackson-made-josh-hawley-look-so-ignorant-n1292856
- United States v. Booker, 125 U.S. 738 (2005)
- 18 U.S.C. § 3553(a)
- 2021 Annual Report and Sourcebook of Federal Sentencing Statistics; United States Sentencing Commission
- Fact Check: Judge Ketanji Brown Jackson Child Porn Sentences ‘Pretty Mainstream’ by Devin Dwyer, March 21, 2022
- ABC News “Fact Check: Judge Ketanji Brown Jackson Child Porn Sentences ‘Pretty Mainstream’” April 12, 2022
- https://www.nytimes.com/2022/03/24/us/politics/ketanji-brown-jackson-child-abuse-cases.html
- 18 U.S.C. § 2252A(b)(2)
- 18 U.S.C. § 2252A(b)(1)
- The New York Times, “Bipartisan Drug Sentencing Bill Languishes Amid Midterm Politics” by Carl Hulse April 30, 2022
- Texas Disciplinary Rules of Professional Conduct. Preamble: A Lawyer’s responsibility; paragraph 2
- Canon 5 of the Canons of Ethics of the State Bar of Texas (This is the from the Canons that were in effect when I was admitted to practice in 1963. Neither I nor the staff of the Texas Center for Legal Ethics office has been able to find the citation.)
- https://www.history.com/news/boston-massacre-trial-john-adams-dan-abrams
- https://mrnussbaum.com/why-did-john-adams-defend-the-british-soldiers-accused-in-the-boston-massacre
