As a public defender, Supreme Court nominee helped clients others avoided
By Charlie Savage
After the Supreme Court’s landmark 2004 ruling that Guantanamo Bay prisoners could file lawsuits challenging their indefinite detention, the federal public defender in the District of Columbia took on several such cases and assigned a young lawyer in his office to handle them: Ketanji Brown Jackson.
“They involved very complex legal issues that were just being worked out, and it needed someone who was incredibly bright and an incredibly good lawyer,” recalled the public defender, A.J. Kramer. “We thought Ketanji was the best fit.”
Jackson, who went on to become a federal trial judge and then an appeals court judge, is now President Joe Biden’s Supreme Court nominee. But her 2 1/2 years as an assistant public defender, including her work on behalf of accused terrorists and of criminal defendants, is likely to receive particular scrutiny under the glare of her coming confirmation fight.
Lawyers who harbor ambitions to be a judge — as she clearly did, having written in her high school yearbook that a judgeship was her goal — typically are prosecutors who help put criminals in prison. If confirmed, Jackson would be the modern court’s first justice with experience as a public defender.
She has also had to navigate the politics of having represented unpopular clients. At her confirmation to be a district court judge in 2012, for example, Sen. Chuck Grassley, R-Iowa, challenged her about her Guantanamo work, saying her record raised “some concern about how you will handle terrorism cases that may come before you.”
Jackson assured Grassley that she believed that terrorists posed a danger to the United States and that the country was at war with them, while distancing herself from the Guantanamo cases she had worked on.
“In all of those situations, the views that were expressed were the views of my clients that I represented,” she told him, adding, “The briefs did not necessarily represent my personal views with regard to the war on terror or anything else.”
After graduating from Harvard Law School, clerking for several judges — including Justice Stephen Breyer, the man she would succeed — and practicing corporate law, Jackson spent several years as a lawyer for the U.S. Sentencing Commission.
There, she later wrote, she came to realize that she “lacked a practical understanding of the actual workings of the federal criminal justice system, and I decided that serving ‘in the trenches,’ so to speak, would be helpful.” She thought the public defender’s office would provide that knowledge while also being “an opportunity to help people in need, and to promote core constitutional values.”
Jackson was an assistant public defender from February 2005 until June 2007, before returning to corporate law. In a Senate questionnaire for her first judicial nomination, in 2012, Jackson said that as a public defender, she had argued before the appeals court about 10 times.
One of her cases involved a man named Andrew J. Littlejohn III, who had been convicted of unlawfully possessing a firearm as a felon after police found a gun hidden in a laundry basket while searching the house where he lived with his mother. Jackson appealed his conviction on several grounds, including because the trial judge had asked potential jurors questions in a way that could have masked whether some had relatives who were police officers and might be biased.
In a unanimous ruling, a three-judge panel agreed that the juror questioning had been flawed and vacated Littlejohn’s conviction.
“Under the particular circumstances of this case, the district court’s use of compound questions violated Littlejohn’s Sixth Amendment right to an impartial jury,” Judge David S. Tatel wrote.
During her 2021 confirmation to the U.S. Court of Appeals for the District of Columbia Circuit, Sen. Ben Sasse, R-Neb., asked Jackson in writing whether she ever worried that her time as a public defender “would result in more violent criminals — including gun criminals — being put back on the streets?”
She replied that for the justice system to work properly, those accused of crimes must be represented by “competent legal counsel to hold the government accountable for providing a fair process and otherwise assist in the preparation of a defense against the charges.” Lawyers in the federal public defender’s office, she continued, “perform this crucial function.”
Kramer recalled her as a friendly colleague who was considerate and never complained about the heavy workload. He said that they often discussed raising their children. Jackson loved the reality television show “Survivor,” he added, and “would talk about the strategy of the various contestants.”
It was in that job that Kramer assigned Jackson to help with the habeas corpus litigation for several Guantanamo detainees. And later, at a corporate law firm, Jackson also filed friend of the court briefs on behalf of two groups supporting challenges to Bush-era detention policies, including a claim that the government could detain a lawful permanent resident arrested on domestic soil without charges and as an enemy combatant.
During her 2021 confirmation hearing, Sen. Tom Cotton, R-Ark., challenged her about some of that work. Jackson parried, telling him that she had been assigned those cases and noting that her brother had been deployed to Iraq with the military.
But in a written follow-up response, she opened up more, portraying herself as one of “many lawyers who were keenly aware of the threat that the 9/11 attacks had posed to foundational constitutional principles, in addition to the clear danger to the people of the United States.”