Senator Josh Hawley has a beef with Judge Kentanji Brown-Jackson’s prior experience when it comes to defendants convicted of child pornography, ranging from her time in law school to working as a federal appellate defender,* to her time as a District Judge and her work with the U.S. Sentencing Commission.
For starters, as far as I know, there has only been one bona fide criminal defense lawyer on SCOTUS, and that was the Honorable Thurgood Marshall.** The fact is that trench lawyers rarely make it to the appellate circuit level, let alone SCOTUS.
This is an old and cheap trick out of a lawmaker’s handbook: someone who is not on your team defended the accused at some point in their career or cut someone some slack whilst they were on the bench? Shun and shame them for that, as if that’s not exactly what defense lawyers are supposed to do. People who have competently and zealously defended some bad dudes within the legal and ethical bounds? We can’t have that.
On June of last year, the folks at the U.S. Sentencing Commission concluded that there has been “a steady increase in the percentage of sentences imposed below the applicable guideline range in non-production child pornography cases, which indicated that courts increasingly believed the sentencing scheme for such offenders was overly severe.” Less than one third of those offenders received a within-the-guidelines sentence, and for good reason. Some Senior District Judges have written about how those sentenced for child porn are pretty much guaranteed a living hell for the rest of their earthly existence, well after they’ve served the incarceratory part of their sentence.
The sentencing guidelines, whether they involve financial loss or drug amounts, are generally black-box science. There is no genuine empirical evidence to back up those numbers. Professor Douglas Berman ran the numbers, and he is right when he explains that Judge Jackson is not an anomaly when it comes to federal sentencing for child pornography:
Reviewing a brief accounting of nine CP cases sentenced by Judge Jackson (which I believe was produced by GOP Senators and/or staff and was forwarded to me), I was first struck by the fact that in a majority of these cases (5 of 9) the prosecution advocated for a below-guideline sentence and in three others the prosecution advocated for only the guideline minimum. In other words, Judge Jackson was generally sentencing CP defendants in cases in which even the prosecution concluded mitigating factors meant that the guidelines were not a proper benchmark range in light of congressional sentencing purposes. Notably, the recent USSC report indicates that the government formally moves for a below-range sentence in roughly 1 out of every 5 CP cases (p. 23); it is not clear if prosecutors made formal motions for departures or variances in Judge Jackson’s CP cases, but it is clear that in the majority of these cases the prosecutors were the ones who requested a sentence below the CP guidelines.
In the nine cases, Judge Jackson followed the prosecutors’ sentencing recommendations in two cases, and sentenced below the prison term suggested by the government in seven others. One case, US v. Hillie, distorts the average deviation from the prosecutors’ recommendations, as the government there sought a sentence of 45 years and Judge Jackson imposed a sentence of “only” 29.5 years. Leaving that case out of the average, in the other eight cases, Judge Jackson’s sentence was only about 1.8 years below the recommendation of prosecutors (and about .6 years above the defense recommendations). In those cases, Judge Jackson did sentence, on average, about 54 months below the calculated guideline minimum, but that degree of reduction from the guideline minimum is almost identical to the national average reduction according to the USSC report (p. 25).
In other words, Judge Jackson’s record in these CP cases does show she is quite skeptical of the ranges set by the CP guidelines, but so too were prosecutors in the majority of her cases and so too are district judges nationwide (appointed by presidents of both parties). I use the word “mainstream” to describe Judge Jackson’s sentencing patterns here because they strike me as not at all out of the ordinary; there are surely federal judges who have sentenced CP offenders more harshly, but there are also surely federal judges who have sentenced CP offenders more leniently. Judge Jackson’s sentencing record in CP cases reflects the fundamental flaws of the CP guidelines (and perhaps a relatively mitigated group of offenders she was tasked with sentencing). As I see it, these cases do not really reveal any kind of unique or uniquely concerning sentencing jurisprudence.
As a write this piece, day 2 of Judge Jackson’s confirmation hearing is under way. For anyone who has a basic understanding and appreciation for the law, these hearings are an abject disgrace. I wish I had the stomach for these shows, but I don’t. We have lawmakers who know or should know much better putting on a low-rent dog-and-pony show that is guaranteed to make the national IQ drop a few points. In the end, she will be confirmed, so in a sense all of this idiocy will serve no purpose.
It was no surprise that during her confirmation hearing ,Judge Jackson was also asked about defending Gitmo prisoners as an appellate federal defender. Much to Judge Jackson’s credit, she defended (no pun) her representation of those individuals, and stood by her advocacy.
Raising the sights a bit more, many of the people doing the questioning have a law degree but don’t seem to grasp the basic tenets of cross-examination or the Constitution. Forget about them being from the left or the right: should they have a working knowledge on how to cross-examine, they could do a little damage, even with little or nothing to work with. And think about it: it’s not like a Federal Circuit Judge has a lot of experience with being crossed.
In the end, it’s not criminal defense lawyers who will have to deal with the collateral damage of this tried-and-true trick about demonizing those who have sat at defense table with a client. Aside from the fact that defense lawyers have the carapace to deal with these stupid innuendos, remember this inside baseball: we defense lawyers could care less about who is “guilty.” We don’t do “justice.” If anything, it can be less stressful to defend someone who doesn’t constantly try to convince you with the “I’m innocent, and here’s why” schtick. What’s more, there’s some defense lawyers out there who get an impish joy of defending the guilty.
It will ultimately be the clients, the defendants, who will bear the brunt from all of this nonsense. They’re the ones who will be spared some mercy when that sentencing hearing comes around. Judge Jackson zealously advocated on behalf of her clients, some of which were probably guilty as hell. So what? When it comes to SCOTUS nominees, so many lawmakers end up acting like backward children who pretend to be clueless about the law and the role of defense lawyers. Grow the hell up.
*As far as I know, Judge Jackson’s defense work only involved federal appellate work. If Judge Brown has experience as a trial lawyer, please let us know in the comments section. Infallibility is a skill I’ve yet to master.
**If you want to get a peek into what a bona fide badass Judge Marshall was when he was a defense lawyer, check out “Devil in the Grove,” which is about his days as an NCAAP lawyer defending the Groveland Boys in Florida. I’d like to think that I would have had the same intestinal fortitude that he did under those circumstances, but I hazard to think that I would have.
***On a personal note, I always dreamed of being picked to defend someone from Guantanamo Bay. It just seems like the ultimate against-all-odds gig for a criminal defense lawyer.
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If Judge Jackson is confirmed, she and the other eight justices will have far more unrestrained power to shape our society than our Framers ever imagined. In practical terms it does matter how she understands the law, interprets statutes, and conceives the role of the state in the lives of private citizens.
Before joining the bench, Judge Jackson worked openly for progressive causes and is not, as at least one commentator has labeled her, apolitical. But more importantly, Judge Jackson has served on two unique federal courts. Her eight-year tenure as a district court judge and months-long tenure as an appellate judge has been in jurisdictions that normally hear specialized types of cases that do not afford judges opportunities to entertain broad questions of law. In fact, in response to questioning about her philosophy of constitutional interpretation during her last confirmation, she surprisingly, but honestly, replied, “I have not had any cases that have required me to develop a view on constitutional interpretation of text in the way that the Supreme Court has to do and has to have thought about the tools of interpretation.” It is hard to see how her few months as an appellate judge and her publication of just two appellate decisions since July 2021 has remedied that.
But there is a case that stands out from her time as a trial judge that provides a window into her attitude about the role of the courts in the American system. Judge Jackson was quite willing to lean on the doctrine of judicial review to an extreme and radical extent in subjecting Trump-era immigration policy to judicial review even in the face of a statutory provision that granted “sole and unreviewable discretion” to the executive branch. An Obama appointee on the appellate panel that reversed her wrote, “there could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal, within statutory bounds, to the Secretary’s independent judgment.” Jackson’s was a blatant example of judicial activism recognizable even to a judge that likely shares many of her ideological and political sympathies.
Two aspects of Judge Jackson’s background that should be of some comfort to those who value liberty include two unique things. First, if she were to join the Court, she would be the first justice in more than a generation to have presided over a trial that included a jury, which is a unique institution critical to American democracy. Second, having served as a public defender, she would be the only current justice who had spent any portion of her career defending citizens against the state rather than representing the state and its interests. There is no question that we need more judges at all levels of the judiciary with such experience.
Ultimately, however, Judge Jackson’s confirmation would almost certainly prove problematic for the causes of preserving individual liberty and stemming the tide of encroaching government involvement in the lives of ordinary citizens. She’s demonstrated a willingness to exert judicial power beyond its already strained boundaries. The bigger problem that lovers of liberty should wrestle with, however, is that her confirmation matters to any substantive extent given that the courts following Marbury have far exceeded their place in American government and public life and proven not to be, as they were once described, the “least dangerous branch.”
– Trey Dimsdale
Trey Dimsdale serves as counsel for First Liberty Institute (FLI) and executive director of the Center for Religion, Culture & Democracy, an FLI initiative focused on education and cultural advocacy for freedom.
You should really consider whether humiliating yourself with this cut and paste spam propaganda is a good idea on a law blog. Do you really want lawyers and judges laughing at you?
I get why you let people disgrace themselves with this spam, but why subject anyone to this garbage? Put it where it belongs, in the trash.
I am pretty impressed by the restraint with which the Republicans are handling this nomination. I’m sure that their base is deeply disappointed with them for not creating a Kavanaugh-style circus with a bunch of random nutjobs accusing her of sexually assaulting them, or cutting in front of them in line at the liquor store, or something. They have to pretend to be trying to do something, before the vote goes down the way that everyone knows that it will, if they want to get elected again.
Few would call it restraint, though your point that they haven’t gone full Kavanaugh is well taken. Then again, if they actually had something on KBJ, do you think they wouldn’t?
The Democrats had nothing on Kavanaugh, but that didn’t stop them. Not that I think the Republicans are any better. It’s just that they calculate that they can get re-elected without going full Kavanaugh. If they thought that they had to do more, to preserve their sinecures, they would do more.
The Democrats’ job is to destroy America as quickly as possible. The Republicans’ job is to pretend to try to stop them.
There are other considerations. This nominee evidently blows with the wind like any other politician and so I sneer. I’m not a biologist but I know what a woman is.
There’s almost always other considerations, but I decided to focus on the snide remarks about her record as an appellate defense lawyer, Federal Judge, and her work with the U.S. Sentencing Commission. I opt for the scalpel over the bludgeon, laser-guided over a cluster bomb.
A legitimate tangential beef is how President Biden promised during the campaign that he would appoint a black woman to SCOTUS. To me, that premise is insulting to the nominee at worst, patronizing at best. It prioritizes those characteristics over merit, talent, and experience. I’m sure that whoever Judge Jackson represented or sentenced could care less about her race, gender, or who she chose to share her life with. Her clients wanted her to win. Those she sentenced – at the very least – wanted a fair shake and some leniency. No defendant ever sad “Well, I got 20 years, but at least it wasn’t a white male who signed the Judgment and Sentence.”