The Other First

Ketanji Brown Jackson at her Senate hearing last year. Photo: Pool/Getty Images To the list of obvious firsts, a Justice Ketanji Brown Jackson would add another: the first former public defender to sit on the United States Supreme Court. It’s an entry on her résumé that a few years ago might have been politically unthinkable for a nominee to the highest court but is now, thanks to years of work by the progressive legal movement and criminal-justice reformers, a boon.

Indeed, she would join a Supreme Court that, on criminal cases, “consists largely of arguments by expert prosecutors, offered to former expert prosecutors, about cases potentially channeled to the Court by prosecutors,” as Harvard law professor Andrew Crespo put it in a 2016 Minnesota Law Review article. They may idealize the system and not understand how arbitrary or unfair it can be in practice.

Risk aversion to questions framed like that explains why federal judges with experience like Jackson’s have, in recent history, been rare. “The default for presidents of both parties has been to nominate judges who are either corporate lawyers or prosecutors,” says Christopher Kang, who as deputy counsel in the Obama White House oversaw over 200 judicial nominations. “Prosecutors and corporate lawyers are less politically controversial.

Joe Biden hadn’t even been inaugurated yet when, at the end of 2020, Dana Remus sent a letter to Democratic senators urging them to recommend nominees for district-court judges “whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.

Source: Law Daily Report (lawdailyreport.net)

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