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The State of Aloha

Judge Ketanji Brown Jackson’s ascension to the Supreme Court of the United States is making history no matter what. Judge (she’s not a justice until sworn in as one) Jackson will become the first Black woman to ascend the highest court in the country. That indeed is a milestone.

Judge Jackson’s legal career is good evidence that she’s got what it takes to be on the court. Like many before her, she went to Harvard, graduated with honors and landed plum clerkships for federal judges in the northeast and at the Supreme Court itself. Then there are the jobs at an elite law firm in Washington D.C. President Barack Obama put her on the bench as a trial judge in 2012 and when Joe Biden won the presidency, he promoted her to the appellate court. But another thing in her career stands out.

For two years she took a detour from the well-traveled road to the Supreme Court to be a public defender. That would make her the first justice this century to have ever represented a criminal defendant and the only former-public-defender justice.

This isn’t surprising from President Biden. He likes public defenders. It was a point of pride for him when he ran for the Democratic nomination to talk about being a public defender after law school.

In his first year, the commander in chief has appointed close to 40 judges — almost 30 percent had at one time been a public defender, 24 percent worked as civil rights attorneys and 8 percent were labor lawyers. Eighty percent are women and a little more than half are people of color.

Republicans on the Senate Judiciary Committee have certainly noticed this trend. Judge Jackson’s criminal defense background appeared to be the only thing that they wanted to talk about at her confirmation hearings. For days, they combed her record and argued she was soft on crime. It’s part of a broader claim that criminal defense lawyers have no place on the bench because, well, they are criminal defense lawyers.

At a hearing for a different Biden nominee, Missouri Sen. Josh Hawley said he opposes anyone “the administration sends to us who do not understand the necessity of the rule of law.”

His comment sparked outrage and confusion. Criminal defense attorneys understand the rule of law. They are often the only ones pointing out that the police violated it when challenging the government’s evidence. It is what they rely on when attacking the government’s case against an individual. And the rule of law is the tool defense attorneys use to challenge the constitutionality of a statute itself. Sen. Hawley’s announcement is especially strange because he should know that already. After all, he graduated from Yale Law School, clerked at the Supreme Court and used to teach constitutional law.

Then there’s Ted Cruz and his attack on public defenders. He told Fox News a few weeks ago that he opposed Judge Jackson’s nomination because when it came to public defenders (for former ones), “their heart is with criminal defendants, their heart is with the murderers, with the criminals, and that’s who they are rooting for.” He surmised that “public defenders often have a natural inclination in the direction of the criminal” and she “carried it onto the bench.”

The comments coming from these senators, who often go out of their way to show off their love of country and the American way, is ironically un-American. Criminal defense attorneys have deep roots here. It’s enshrined and guaranteed in the Sixth Amendment to the United States Constitution.

Nor can we forget that some of our greatest leaders did criminal defense work. Abraham Lincoln defended “murderers” and “criminals” in the wilds of Illinois. John Adams took on the equivalent of representing Guantanamo Bay detainees by defending British soldiers charged with murdering civilians in the Boston Massacre.

Our senators, like most, didn’t agree with Hawley and Cruz. Sen. Mazie Hirono saw Judge Jackson’s criminal defense experience as an asset. Praising her for being “a trial court judge, a public defender, a mother, a Black woman,” Sen. Hirono noted it has given her a “different perspective than any of the other eight justices on the court.” Sen. Brian Schatz also noted that being a public defender was one of her career highlights.

Contrary to Cruz’s comments, plenty of criminal defense attorneys — especially underpaid and overworked public defenders — aren’t doing it because they are inclined to think like criminals. Far from it. Most will tell you they do it because they believe in a zealous defense and demand a fair and better judicial system. Without it, we are left with unchecked government might coming down on individuals — something found in dictatorships and totalitarian states. It’s an essential part of American justice and ordered liberty.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com.

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