It’s not that US senators are against all lawyers who defend clients, however savory or unsavory the clients may be. They had no problem confirming current US Supreme Court justices who defended large corporations for some of their careers (Chief Justice John Roberts and Justices Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). Nor was this an impediment to the confirmation of appellate judges. About 6 in 10 appellate judges are former corporate lawyers from large firms. Given this profile, it is no surprise, then, that the parties that appeared before the Supreme Court that were backed by the US Chamber of Commerce won 83 percent of the time in the most recent term.
Senators have also confirmed justices who defended controversial views on social issues like affirmative action and women’s reproductive rights (Justices Clarence Thomas and Barrett, for example). They even have confirmed justices who defended themselves against allegations of sexual harassment or worse (Thomas and Kavanaugh).
But Republican criticism of the current nominee, Judge Ketanji Brown Jackson, makes clear that some senators object to one type of legal defense: defending the poor in criminal cases. Since most people charged with crimes in this country are too poor to hire a lawyer, this comes down to an objection to serving as a public defender.
It’s a remarkable objection, not only because it demeans some of the most important work that lawyers do, but because it demeans the US Constitution senators swear to uphold. The Sixth Amendment assures the right to counsel in a criminal case, not just to the affluent but also to the poor. Since the Supreme Court’s 1963 decision in Gideon v. Wainwright — nearly 60 years — that amendment has applied to every poor person charged with a felony. And for 50 years, with little controversy, it has extended to almost all misdemeanors.
Public defenders earn a fraction of what many corporate lawyers make. They cannot pick their clients: Lawyers of last resort, they fulfill a constitutional mandate with every case they take. The liberty of real people always is at stake. They lose often. Sometimes their clients are human beings too damaged to appreciate their work, or ungrateful.
But US senators? Surely they are not too damaged or ungrateful to appreciate what public defenders do. Every person accused of a crime confronts the government. Even rare wealthy defendants can be overwhelmed and outspent by the government they face. The public defender standing up in court, for shabby pay and against great odds, to speak for a poor man, woman, or teenager facing jail or prison should have the respect of every senator. That public defender especially should have the respect of each one who claims to be concerned about the size and power of government, governmental overreach, or individual rights.
If confirmed, Jackson will become the only person ever to sit on the US Supreme Court who worked as a public defender. Surely in the long line of justices who have served wealth, government, and corporations — that is, most who have sat on the Supreme Court — there is room for one former public defender. If the words inscribed on the Supreme Court’s pediment — Equal Justice Under Law — are more than a cynical deceit, defending the poor cannot disqualify a lawyer from becoming a justice.
As to public defense in a broader sense, Jackson would not be the first defender of poor people on the Supreme Court. Thurgood Marshall, the first Black justice, and an exceptional advocate (including in the Supreme Court), spent his early career defending, usually for free, the desperately poor charged with crimes. For the whole of the 20th century and into this century, he is the only justice on the Supreme Court who ever directly defended a man on trial for his life.
Marshall was confirmed in 1967, by a vote of 69-11. Of Republican senators, 32 voted yes to confirm; only one voted no.
One measure of our progress as a nation, on race and on equal justice generally, will be Jackson’s confirmation vote. We will learn starkly whether, in 55 years since Marshall’s confirmation, we have gone backward rather than forward.
Dean Strang is a criminal defense lawyer in Madison, Wis., a law professor at Loyola University Chicago, and a former federal public defender. Nancy Gertner is a retired federal judge in Boston and a law professor at Harvard.