Among the reasons why criminal defense lawyers were rarely nominated for federal judgeships or win elections for public office is that our duty, the zealous defense of people accused of crimes, invariably exposes us to a simple, obvious attack. We defend bad people. Sometimes they’re evil. Sometimes they’re icky. Sometimes both.
But they are people who are easy to attack, easy to despise and we’re positioned in a place where the groundlings can be easily manipulated into believing that by defending them, we either support what they’re doing or use our efforts to put them back on the street to do it again. Maybe next time, to you. They are deplorable, and we, then, are deplorable enablers. Without us, the deplorables would be in prison where they couldn’t harm you. Bad lawyers.
When Judge Ketanji Brown Jackson’s confirmation hearings open, she will be attacked on two fronts. One is that she spent a very small portion of her legal career, a little more than two years, as a federal appellate defender, Her supporter hyped up this aspect of her career, the first public defender to be nominated to the Supreme Court, as being big. Huge.
And, indeed, it is valuable, although it’s hardly comparable to, say, Thurgood Marshall’s entire legal career being dedicated to civil rights. But in these days when nothing avoids overhyped extremes, the left made far too much of this, causing Newton’s Third Law to be invoked. Ironically, none of this was needed, as this happened after she had already been nominated, so who was the left desperately seeking to convince? The Dems have the votes to confirm her. She absolutely should be confirmed. What problem were they solving by creating an attack vector against her?
Adding to the irony, the same progressives extolling her public defender cred haven’t entirely supported the constitutional right to a zealous defense. The lawyers defending hated defendants, Derek Chauvin for example, were reviled and attacked for fulfilling their duty. If the zealous defense of an accused is the highest calling of a criminal defense lawyer, that doesn’t change based on whether you like the defendant. Even though the attacks on KBJ are coming from Republicans, the left hasn’t wrapped itself in honor on this issue either. But I digress.
The other issue is that Judge Jackson has gone “soft” on child porn possession, and Yale Law grad Josh Hawley has grabbed hold of this to play the useful idiots.
Last week, Senator Josh Hawley, a Missouri Republican who sits on the panel and will question Judge Jackson, claimed his review of her judicial record had determined that she had been lenient in sentencing some sex offenders and those convicted of possessing child pornography. He also suggested that, as a member of the United States Sentencing Commission, she worked to reduce penalties for those caught with child pornography. A detailed background paper prepared for the Judiciary Committee made a similar case.
There are few issues as ripe to foster outrage as kiddie porn. Hawley knows it.
Mr. Hawley, who is regarded as a potential Republican presidential contender and has not voted for a single Biden administration judicial nominee, was never considered a likely supporter of Judge Jackson. Still, his detailed takedown of her record on sex crimes has generated concern among Democrats, who worry it could deter some Republicans who are considering supporting her, or even rattle some senators in their own party, all of whom will likely be needed to win confirmation.
There may be no crime more offensive to people’s sensibilities than child pornography, which is entirely understandable. The crime at issue is its possession, not its manufacture, but the argument is that without people who watch it, there would be no reason to make it. Thus, the watchers create the market for which the manufacturers create it. There is a further argument that watchers may become child sex abusers themselves, although the counter-argument is that they won’t because they have the “release” of watching so that they don’t act upon any impulse to go out and actually commit the horrific crime.
All of this, however, is besdie the point. Because kiddie porn has been such an easy target for hatred, the United States Sentencing Guidelines are absurdly harsh and contradict the parsimony clause of 18 U.S.C. § 3551(a). Even this, however, is beside the point. Federal judges, regardless of whether they’re harsh or lenient in general, have almost invariably departed downward when sentencing for possession of child porn because the guidelines sentences are almost universally recognized as being too extreme.
“Those individuals would be surprised to learn that they are supposedly ‘soft on crime’,” said Andrew Bates, a White House spokesman who has been working on the confirmation. He called Mr. Hawley’s allegations “toxic and weakly presented misinformation that relies on taking cherry-picked elements of her record out of context — and it buckles under the lightest scrutiny.”
That KBJ sentenced some defendants in CP possession cases below the Guidelines makes her pretty much just like every other judge. But if you don’t know what the mainstream is, you wouldn’t know that what she did is entirely within the norms of most judges.
And if it’s still too icky, and you don’t trust me to fairly explain this, maybe the very conservative Judge William Pryor will help to make it clear.
One Republican-appointed member of the panel who served with Judge Jackson, Judge William H. Pryor Jr., the chief judge of the U.S. Court of Appeals for the 11th Circuit, confirmed that the recommendations of the commission were almost uniformly supported by all its members as the panel sought to eliminate disparities and improve sentencing.
“We worked by consensus, and that is the tradition of the sentencing commission,,” he said in an interview. “Virtually all of our votes were unanimous and data-driven.”
Will this mean anything to Josh Hawley, who no doubt knows that his attacks on Judge Jackson are wholly disingenuous but will play well to the unduly passionate on TV? Of course not, and it’s just too tempting, too easy, to not seize the opportunity. But what he’s really doing is attack the function of a criminal defense in our system and playing the ick factor to turn fairness, zeal and proportionality into the character traits of a criminal defense lawyer and a thoughtful and decent judge.
Except this time it will be for a Supreme Court nominee, and in their quest to taint Biden’s nominee, the defenders of the accused will be demonized on a national stage. It won’t change the outcome, but it will make people hate criminal defense lawyers for fulfilling our duty under the Constitution.
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