Jackson Broke the Glass Ceiling for Public Defenders, Should Further Embolden Democrats’ Push for Professional Diversity

Posts / April 07, 2022

TO: Interested Parties

FROM: Demand Justice Chief Counsel Christopher Kang

RE: Jackson Broke The Glass Ceiling For Public Defenders, Should Further Embolden Democrats’ Push for Professional Diversity

Ketanji Brown Jackson will soon be confirmed as the first former public defender on the Supreme Court and the first justice with significant criminal defense experience in more than 30 years. Throughout Jackson’s confirmation process, Republicans honed in on her experience as a public defender as a key line of attack. Now, Jackson is on a glide-path to confirmation and poll after poll shows her as one of the most popular Supreme Court nominees in recent history.

Jackson’s slam dunk of a confirmation process makes clear that the era of the public defender judge has arrived, and Democrats should be emboldened to push forward with professionally diverse judges at all levels of the judiciary.

REPUBLICANS THREW THE KITCHEN SINK AT JACKSON’S PUBLIC DEFENSE EXPERIENCE AND CAME UP EMPTY

Republicans on the Senate Judiciary Committee aimed to make Jackson’s confirmation a referendum on her work as a public defender. Mitch McConnell complained about President Biden nominating a “disproportionate” share of public defenders. His colleagues embraced all the worst attacks a former public defender can expect: attacking her most unpopular clients (including people held at Guantanamo Bay), arguing she would be soft on heinous crimes, saying public defenders’ “heart is with the murderers,” even saying she would have defended Nazi war criminals.

In response, Jackson did not shrink from her experience defending unpopular clients. Instead, she explained the constitutional principle of public defense and how she viewed her work representing even alleged terrorists as a form of public service. In response to questions about her work representing Guantanamo Bay detainees, she said she viewed her work as of a piece with her brother’s work serving in the military: “I worked to protect our country; my brother worked on the front lines. And it was all because public service was important to us.”

The results speak for themselves:

Jackson emerged as one of the most popular Supreme Court nominees of the modern era.
Americans disapprove of the way Republican senators handled the confirmation process by a nearly 2:1 margin.
By a +33 point margin, Americans are more likely to say Jackson being the first former public defender on the Supreme Court makes them more likely rather than less likely to support her.
Analysts from across the political spectrum, including the conservative CATO Institute, spoke out for Jackson’s confirmation citing her public defense experience. Even the conservative National Review renounced some of the most scurrilous Republican attacks.
Even some Republican senators expressed discomfort with the attacks on Jackson’s public defense record.
Jackson is set to be confirmed with more bipartisan support than the last two Supreme Court nominees combined.

Jackson’s confirmation will make clear that in the face of vicious Republican smears, Democrats can hold together and win the argument on the need for professionally diverse judicial nominees.

JACKSON’S NOMINATION IS THE CULMINATION OF BIDEN’S OVERALL PUSH TO PUT PUBLIC DEFENDERS AND CIVIL RIGHTS LAWYERS ON THE BENCH

When President Biden assumed office, the federal judiciary was stacked with former prosecutors and corporate lawyers, with startlingly few public defenders or civil rights lawyers on the bench nominated by presidents of either party. Former prosecutors outnumbered former criminal defense lawyers on the federal courts by a 4:1 ratio. Trump appointed 10 former prosecutors for every 1 former criminal defense attorney, and even President Obama appointed three times as many prosecutors as criminal defense lawyers.

Under President Biden, Democrats have undertaken a groundbreaking push to appoint more public defenders. Nearly one-third of President Biden’s picks are former public defenders, and he is the first president to nominate more public defenders than prosecutors. He has already nominated more appellate judges with public defense experience than any president in history.

By selecting a former public defender for his most important judicial nomination to date, President Biden has made clear that he intends to continue furthering his commitment to rebalancing the federal bench.

DEMOCRATS SHOULD BE EMBOLDENED TO NOMINATE AND CONFIRM THE NEXT GENERATION OF KETANJI BROWN JACKSONS

Going forward, Jackson’s confirmation should embolden Democratic efforts to bring professional diversity to all levels of our court system––without paying attention to bad-faith attacks from the right.

Fortunately, the American people have soundly rejected Republican attacks and shown they understand the need for balanced perspective on the bench. If anything, Democratic selection of professionally diverse nominees seems to engender overreach on the part of Republicans, resulting in unforced political errors. Democrats should take this as license to push forward with selecting the next generation of Ketanji Brown Jackson like judges who will bring a diversity of experience to the federal judiciary.

There are currently no nominees for 19 announced circuit court vacancies and 31 district court vacancies in states with two Democratic home-state Senators. Democrats must prioritize filling these vacancies as quickly as possible with nominees who fit the Biden––and Jackson––mold.