Tom Cotton: Ketanji Brown Jackson might have defended the Nazis at Nuremberg

Tom Cotton: Ketanji Brown Jackson might have defended the Nazis at Nuremberg

I’m going to try not to get on my high horse here since I too sometimes instinctively look askance at defense lawyers whose clients are especially repulsive. No attorney is forced to represent anyone, after all. That killer or “groomer” or mastermind of the Final Solution whom you’re defending could have been defended by someone else. And would have been, had you found their actions sufficiently abhorrent that you couldn’t zealously represent them in good conscience. That’s the instinct.

But the flaw in that thinking is that if everyone declines to represent the defendant as a matter of conscience then they won’t find representation. They’ll be forced to represent themselves, almost certainly incompetently when pitted against a trained prosecutor. That prospect isn’t too troubling in the case of a defendant who’s charged with something terrible and is actually guilty.

What about one who isn’t?

Cotton is referencing Jackson’s work on behalf of Gitmo defendants during her time in the Federal Public Defender’s office, where that sort of representation came with the territory. What he says here is of a piece with Ted Cruz’s recent complaint that “Public defenders often have a natural inclination in the direction of the criminal.” That message is a twofer for Senate Republicans this year, attempting to make Jackson’s looming confirmation a political liability for Biden while reinforcing the GOP’s point that Democrats are soft on crime per the “defund the police” radicals in the progressive base.

But look. Whatever the “natural inclination” of public defenders may be, if we want our trials to be more than knockovers for the prosecution, defendants need to have competent advocates. Even the really sleazy defendants, whom the jury and the wider public will be especially eager to convict. Charles Cooke wrote today about Cruz’s comments, reminding him that he was a “public defender” of a sort himself not long ago. As Texas’s solicitor general, he was forced to defend state laws in appellate hearings which he admits he found stupid. But that was the job, and he did it because it needed doing — both to make sure that the statute’s strengths were fairly ventilated in court and to assure the public that the legal system will consider both sides of an issue before judgment is rendered. Cooke:

If we are to have a legal system that allows people, institutions, and governments to defend themselves against charges of illegal conduct — and we should have that system — then we are going to have lawyers who defend their clients to the best of their ability. It doesn’t matter whether the defendant is popular, whether the institution is sympathetic, or whether the law is a good one — none of that is the point. The point is that an adversarial legal system requires advocates who will relentlessly press their case, and, in so doing, force the other side to prove its brief to a high standard. There is nothing wrong with people who are willing to become solicitor generals and defend laws they dislike, or with people willing to become corporate lawyers and defend companies they disdain, or with people who are willing to become public defenders and defend clients they suspect are guilty, and to suggest otherwise betrays an unthinking and opportunistic illiberalism.

For some reason, Ted Cruz seems to believe that the very act of becoming a public defender indelibly marks a person as being intrinsically favorable toward accused criminals, but that Ted Cruz’s having chosen to be a lawyer for the government for half a decade did not indelibly mark him as a statist.

The most famous example in American history of a lawyer taking an unpopular case to defend a principle was John Adams choosing to defend the British soldiers charged in the Boston Massacre. Imagine an American Founding Father advocating for soldiers who’d gunned down Americans in his home state. But Adams did it amid a climate of intense local hostility to his clients because he wanted to prove the point that Massachusetts could deliver a fair trial even in an environment conducive to mob justice. All of the soldiers ended up being acquitted of murder.

A few of the Nuremberg defendants were acquitted too. We can debate whether top Nazis deserved a trial after the immense depravity they showed in repudiating the basic moral foundations of civilization, but if you’re going to do a trial, you should do it right. A show trial in which no defense is permitted and the proceeding ends with the defendants being executed would itself have been Nazi-esque. As it is, because the defendants had the right to counsel and were allowed to present facts in their defense, several of them were spared the noose. Would it have been better if those facts had been suppressed and they’d been killed anyway — unjustly, per their acquittals?

Crime is always where Cotton’s illiberal streak shows through. He called Trump’s modest criminal justice reform law the worst mistake of his administration and he famously encouraged using the Insurrection Act two years ago to send U.S. troops into the streets to battle rioters. If he had the power to overturn Gideon v. Wainwright, my guess is he’d do it. What other conclusion is there to draw from what he said above?

I’ll leave you with this.

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