Judge Ketanji Brown Jackson’s Defense Background Matters Too

When Mitch McConnell, the Senate’s Republican leader from Kentucky, suggested that Judge Ketanji Brown Jackson had “a special empathy for criminals,” he was not speaking as though that was a good thing.

He was speaking about the years when the federal judge and Supreme Court nominee worked as a public defender, a job in which a little empathy with one’s clients is almost part of the job description.

Yet, in the context of Senate confirmation hearings, McConnell’s allegation of an unspecified “special empathy” for suspected lawbreakers sounds like code for “soft on crime,” which is anything but a magnet for confirmation votes.

That’s why Sen. Josh Hawley, a leading right-wing Missouri Republican, even before hearings began, tweeted that Jackson was “soft” on child sex crimes.

Illinois Democrat Dick Durbin, Senate Judiciary Committee chairman, tried to neutralize that jab with a quote from a conservative National Review column that called the charge “meritless to the point of demagoguery.”

Indeed, Hawley might feel more empathy for the accused if he recalls the encouraging fist-bump he raised to Jan. 6 “Stop the Steal” protesters before some of them stormed the Capitol. More than 800 have since been charged in that mob action, and many of them have defense attorneys provided by the federal government they tried to disrupt.

Did Hawley feel any empathy with them? His reelection campaign has been selling ceramic coffee mugs emblazoned with the photo of his Jan. 6 gesture and the words “Show Me Strong” for $20. Politico, which owns the photo, has since demanded that Hawley’s campaign stop the sales.

Yes, empathy often is in the eye of the beholder.

But if Hawley has learned anything from his Yale Law School years, it should be the reality that public defenders don’t get to pick their clients, whether they empathize or not.

If anything, it was a backhanded compliment to Judge Jackson’s otherwise impeccable qualifications and charmingly agreeable personality that Republican senators turned to such a futile line of attack.

You might even call it “performative,” a recently fashionable put-down of speech or activism that appears to be aimed more at attention-grabbing or fundraising for a cause than with making a real difference for one’s cause.

It was inevitable that Judge Jackson’s confirmation hearings would become a stage for performative showboating. Her appointment won’t change the court’s 6-3 conservative direction, as she will replace another liberal, the retiring Stephen Breyer.

Yet, as much as has been made about her being the first Black woman to be nominated in the high court’s history, Jackson brings another type of useful diversity to the current court.

She’s set to be the first justice with a deep background in defense work since Thurgood Marshall, the high court’s first African American who stepped down in 1991 for health reasons.

Although legal scholars and political scientists endlessly debate whether gender makes a significant difference in legal interpretation, sound legal principles support the idea that the Supremes will benefit from the inclusion of someone who has a background in defense work.

In a well-worn adage by the great Justice Oliver Wendell Holmes Jr., which Judge Jackson cited in an earlier confirmation hearing, “The life of the law has not been logic. It has been experience.”

Jackson’s experiences include her family — on both sides of the law. Her younger brother is a former Baltimore police officer and a distant uncle was sentenced to life under federal drug charges. President Barack Obama commuted his sentence in 2016 at age 78 after more than 25 years in prison.

If confirmed, Jackson will also be the only justice on the new court with experience on the U.S. Sentencing Commission, a bipartisan, independent agency created by Congress in 1984 to reduce disparity and promote transparency and proportionality in sentencing.

I don’t expect Jackson’s background to calm all of her critics, but you could say that about any Supreme Court justice in these tumultuous times. The job is controversial by nature.

The main quality we should ask of justices is fairness, which is all that judicial nominees should ask of us. Judge Jackson’s nomination deserves at least that much.

========

(E-mail Clarence Page at cpage@chicagotribune.com.)