WASHINGTON (CN) — A theme running through the confirmation hearings for the first Black woman nominated to the Supreme Court is that Judge Ketanji Brown Jackson is soft on crime, accusations that lawyers say have more to do with conservative talking points than the nominee's own record.
Before Jackson’s confirmation hearings even began this week, Missouri Republican Senator Josh Hawley made unfounded claims that Jackson routinely gave lenient sentences in child-pornography cases. Despite those accusations not being based in fact, they have consumed the proceedings.
“I believe you care for children, obviously your children and other children,” Texas Republican Senator Ted Cruz said. “But I also see a record of activism and advocacy as it concerns sexual predators that stems back decades, and that is concerning.”
Jackson has defended her sentencing decisions and said they are based on many factors including federal guidelines and recommendations from the probation office. And she’s not the only one defending her record. Outside experts agree that Jackson acted appropriately in the cases in question.
The irony is that senators are blaming Jackson for a problem of their own making.
“There is no evidence that she departed in a way that was unlawful when she was sentencing defendants that came before her as a trial judge at the federal level,” Alexis Hoag, a professor of law at Brooklyn Law School, said in a phone call. “In fact, it's Congress — this is the irony — Congress sets the factors that a judge can use when they decide what sentence to give.”
Another tactic being used to characterize Jackson as soft on crime is her record as a public defender. If confirmed, Jackson would be the first justice with experience as a federal public defender. While public defenders do not get to choose their clients, some senators have criticized Jackson’s defense of Guantanamo Bay detainees.
"I would just emphasize that that's the role of a criminal defense lawyer," Jackson said in response to questions about her representation of Guantanamo Bay detainees. "Criminal defense lawyers make arguments on behalf of their clients in defense of the constitution and in service of the court."
The critiques often lobbed against public defenders are based on the assumption that they agree or somehow sympathize with their clients and the crimes they are accused of.
“Regardless of what your client is facing, what criminal charges they're facing, it is your responsibility as a public defender to represent them effectively or else the system doesn't work,” Hoag said. “It's been an unfortunate trend that there's this conflation somehow that public defenders support criminal conduct or maybe adopt the views of their client and that's not at all what this is about.”
The right to representation is a core tenant of American democracy. The Sixth Amendment of the U.S. Constitution guarantees that the accused must be represented no matter what their crime.
“The argument that you're soft on crime, you're getting people off who are guilty anyway, but that type argument is really short-sighted because it really disregards the Fourth, Fifth and Sixth Amendments,” Cedric Powell, a law professor at the University of Louisville, said in a phone call. “If those amendments mean anything, then people are entitled to representation, and that entitlement is constitutionally based is not based upon guilt or innocence.”
Senators are using distorted versions of Jackson’s ruling in child pornography cases and her experience as a federal public defender as a tactic to portray her as soft on crime, but these accusations do not withstand scrutiny. Experts say that’s because the point is not to critique Jackson’s record but speak to conservative voters.