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Cruz and Cotton cut to the chase on GOP suspicions of defense attorneys

The seeds were sown last year, when during Ketanji Brown Jackson’s confirmation hearings in lower court, GOP senators peppered her with questions about her work on behalf of Guantánamo Bay detainees. They were fertilized and took root in the weeks leading up to his Supreme Court hearings. And now they have begun to blossom, with Republican Party senators taking a remarkable stance toward the work of defense attorneys and public defenders.

In recent days, two GOP members of the Senate Judiciary Committee (who potentially have presidential aspirations) have come out and said it: It’s wrong that Ketanji Brown Jackson worked as a public defender, and people accused of horrific crimes do not necessarily have the right to overzealous defenses.

Sen. Ted Cruz (R-Tex.), for his part, cast Jackson’s work as a public defender as revealing a character flaw.

“People go and do this because their hearts are with the criminal defendants, their hearts are with the murderers, with the criminals, and that’s what they’re rooting for,” Cruz said on Fox News at Weekend. -end last. He added that “public defenders often have a natural bent for the criminal” and claims that Jackson “wore it to the bench when she became a criminal judge.”

On Tuesday, Sen. Tom Cotton (R-Ark.) went so far as to compare Jackson’s portrayal of Guantánamo detainees to the portrayal of Nazis at the Nuremberg trials.

“You know, the last Jackson Justice” – Robert H. Jackson – “left the Supreme Court to go to Nuremberg and pursue the case against the Nazis,” Cotton said. “That Judge Jackson could have gone there to defend them.”

Cotton was careful to note not only the cases Jackson was assigned as a public defender, but also the memoirs she filed while in private practice. One was on behalf of 20 former federal judges who wanted to argue the admissibility of evidence obtained through torture. Another was on behalf of outside groups, including the Libertarian Cato Institute. During her hearings, Jackson said she was assigned the case while working for a large law firm, which was itself assigned the case.

Republicans have danced around these questions at Jackson’s previous confirmation hearings: Sen. Ben Sasse (R-Neb.) asked her if she was concerned that her advocacy in such cases “would translate into [them] returning to [their] terrorist activities”. He also asked if she was considering resigning from business.

But at the time, they didn’t really push that idea home.

That changed after Jackson’s appointment in late February. In the weeks that followed, Republicans took a tougher line on other Biden court nominees who had represented those convicted of crimes — suggesting they shouldn’t have taken the cases at all:

Last month, Sen. Tom Cotton (R-Ark.) asked Biden justice candidate Nina Morrison, who worked for decades on the Innocence Project, which seeks to appeal convictions: “Are you Are you proud to have encouraged such a challenge among convicted murderers?

And just weeks ago, Sen. Josh Hawley (R-Mo.) called out another candidate, Arianna Freeman, for representing a convicted murderer and getting him off death row: crimes to get justice? Sen. Ted Cruz (R-Tex.) told Freeman that she had “devoted her entire professional career to representing murderers, representing rapists, representing child molesters.”

In Jackson’s Supreme Court hearings, they criticized his memoirs on behalf of Guantánamo detainees, which alleged the Bush administration had committed war crimes. The implication was that she shouldn’t have made such an accusation even if her clients wanted to.

“You know, I was also a lawyer, but I don’t think it’s necessary to call the government a war criminal by pursuing charges against a terrorist,” said Sen. Lindsey O. Graham (RS.C .). “I just think it’s too far.”

In the recent past, some on the left have also raised questions about which clients a lawyer should represent. Harvard University has removed a law professor as dean amid backlash from campus over his portrayal of Harvey Weinstein. Two prominent law firms also backed away from supporting then-President Donald Trump’s efforts to overturn the 2020 election results, after receiving criticism (including internally). And many on the left have watched with glee as Trump’s lawyers face legal repercussions for the way they have prosecuted Trump’s conspiracy theories about voter fraud.

But in this latest example, the focus was on the content of the lawsuits — full of wild, debunked conspiracy theories — rather than the decision to represent Trump per se. (Cotton made a similar argument, focusing on the content of the documents filed by Jackson — but people raised real questions about the adequacy of the George W. Bush administration’s treatment of detainees.)

And right now, it’s not students or activists arguing that certain people or causes don’t deserve to be represented by an attorney: it’s US senators.

Indeed, Cruz and Cotton’s final comments seem to bring the attack to this logical, albeit stark, conclusion. But this conclusion rubs even some conservatives the wrong way.

On Monday, the National Review’s Charles CW Cooke condemned Cruz for hypocrisy, noting that the Texas senator stood for things he didn’t believe in when he was state solicitor general — including, in one instance, a law banning sex toys that Cruz later called “stupid.” (Libertarian Reason magazine said, “Ted Cruz hates due process.”) Cooke went on to consider Cotton’s comments a “cheap blow”. Even Fox News suggests Cotton may have gone “too far.”

Cotton’s comparison, in particular, suffers from the fact that even the last Justice Jackson pushed for the right of Nazi defendants to an attorney — an attorney funded by American taxpayers, no less. (U.S. Army chaplains also counseled Nazi defendants during trials.)

More importantly, this situation seems to invite the GOP to state its position on whether attorneys should represent or litigate on behalf of unsavory clients — or whether attorneys should consider this path career suicide, if they wish. have a future in public life.

Should those interested in defending an alleged criminal – a constitutionally required defense – understand this to amount to “rooting for” criminals? Should filing briefs that discuss the legal intricacies of a case involving terrorists, in a way that could benefit the defense, make you a terrorist sympathizer? Should you refuse to offer the type of defense your client requests, even when the law requires you to provide a “zealous” defense, as was the case with Jackson?

The appeal of all this is that it is very easy to demagogue. The problem is that it’s super easy to demagogue.


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