There’s nothing Senate Republicans can do to stop Judge Ketanji Brown Jackson from being confirmed to the Supreme Court. But that doesn’t mean they’re willing to let it go without making it as ugly as possible along the way.
Everyone — yes, everyone — is entitled to a defense against criminal charges.
In his speech Tuesday afternoon on the Senate floor, Republican Tom Cotton of Arkansas took aim, once again, at Jackson’s previous work on cases involving detainees at Guantánamo Bay, Cuba. “The last Judge Jackson left the Supreme Court to go to Nuremberg and prosecute the case against the Nazis,” Cotton said, referring to Justice Robert H. Jackson, who took a leave of absence from the court in 1945. “This Judge Jackson might have gone there to defend them.” With that comment, Cotton, himself a lawyer, targets a basic precept that forms our legal system.
Jackson has given the GOP senators looking to oppose her little to work with, so their determination to carry out a smear campaign means continually drawing from the same well. Although many of her Republican opponents, like Cotton, are lawyers, they are cynically counting on their voters’ either being unaware of how the law works or not caring how it works.
Sen. Tom Cotton (R-AR) literally says Ketanji Brown Jackson might have defended Nazis at Nuremberg:
— The Recount (@therecount) April 5, 2022
“The last Judge Jackson left the Supreme Court to go to Nuremberg and prosecute the case against the Nazis. This Judge Jackson might have gone there to defend them.” pic.twitter.com/K0eHZ56sGY
There are several things wrong with Cotton’s claim, but what really sticks in my craw is his decision to sail his argument over Jackson’s head and attack American jurisprudence. Everyone — yes, everyone — is entitled to a defense against criminal charges. Accepting anything less than that brings you halfway to the belief that trials themselves are unnecessary and burdensome.
It was the belief that everybody is deserving of defense that guided future president John Adams after the Boston Massacre. Despite being an ardent patriot, Adams served as defense counsel for the eight British soldiers charged with murder for firing into a crowd that had surrounded them. The jury acquitted six of them and convicted the remaining two of manslaughter.
Adams’ putting dedication to the law over passion and revenge became ingrained in America’s legal system after the American Revolution. That ideal has been put to the test many times, including in the wake of the Sept. 11 terrorist attacks. Some hawks — including Cotton and Sen. Lindsey Graham, R-S.C. — are of the belief that the accused terrorists who remain in indefinite detention at Guantánamo Bay should have no legal recourse available to them.
Many other lawyers disagree, arguing that detainees being held by the U.S. on territory controlled by the U.S. military must be afforded at least some legal rights. The Supreme Court ruled in 2004 that detainees had the right to petition federal courts for writs of habeas corpus to challenge their detention. It’s in that context that Jackson, serving as a federal public defense attorney, assisted a trial lawyer on the murky law that surrounded the cases. During a brief stint in private practice, she also helped draft amicus briefs for clients arguing against indefinite detention at the Supreme Court.
The supposed sins that the GOP says Jackson committed are, in fact, virtues that bring this country closer to true equality under the law. “After 9/11 there were also lawyers who recognized that our nation’s values were under attack, that we couldn’t let the terrorists win by changing who we were fundamentally,” Jackson said at her confirmation hearings. “And what that meant was that the people who were being accused by our government of having engaged in actions related to this under our constitutional scheme were entitled to representation, were entitled to be treated fairly. That’s what makes our system the best in the world.” Those principles were even upheld at the Nuremberg trials that Cotton so blithely mentioned Tuesday. The 21 individuals and six organizations prosecuted were all afforded the right to legal counsel. Among the 200 defense lawyers for the accused, most were German, but there were, in fact, two American attorneys among them. And it was America that paid each of those 200 defense attorneys for their services. The fact is that even the Nazis were given due process under the Charter of the International Military Tribunal, which the Americans drafted alongside the French, the British and the Soviets. While the majority of charges against the remaining German and Nazi leaders were upheld, three defendants were acquitted. The supposed sins that the GOP says Jackson committed are, in fact, virtues that bring this country closer to true equality under the law. Yes, even those accused of the most heinous of crimes deserve to be defended in court. Yes, even those who can’t afford high-priced attorneys are entitled to have the best arguments made in their favor. Yes, it is important to show mercy and flexibility from the bench over rigid rubber-stamping of sentencing guidelines. These are all deeply American concepts, each of which Jackson has reflected in her time of service. The alternative is a system of show trials in which the verdicts are never in doubt, a permanent continuation of our two-tiered system of justice for rich and poor and a fully accepted reversal of the assumption of innocence until proven guilty. What Cotton and his fellow Republicans don’t seem to fully appreciate is that it’s not Jackson who’s taking the brunt of their arguments. It’s the American concept of justice.
Hayes Brown is a writer and editor for MS NOW. He focuses on politics and policymaking at the federal level, including Congress and the White House. 
