Earlier today, I submitted the following letter (PDF here) to the Senate Judiciary Committee highlighting what I consider to be Ketanji Brown Jackson’s most important qualification for the Supreme Court: She would be the first justice who worked as a public defender, and, unlike most of the other Justices, she never served as a prosecutor or other courtroom advocate for government.
Of course, as with any justice appointed by a Democratic or Republican president, we expect to have plenty of disagreements with a Justice Jackson; but as committed, consistent libertarians, we anticipate significant areas of agreement as well.
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Dear Chairman Durbin, Ranking Member Grassley, and members of the Committee:
As you consider Judge Ketanji Brown Jackson’s nomination to be an Associate Justice of the Supreme Court of the United States, I hope you will find useful these observations about the professional diversity she would bring to that venerable institution. As a constitutional litigator and criminal justice scholar, the composition of the federal judiciary—and particularly the Supreme Court—is of keen professional interest to me. For the reasons set forth below, I believe Judge Jackson would lend an important perspective to the Court’s work that is currently missing and has been historically underrepresented.
A grossly imbalanced federal judiciary and Supreme Court
Among the most important duties of a federal judge is to decide cases involving the exercise of government power over the lives of individuals. This includes ensuring that public officials obey the Constitution and that the government respects the rights of criminal defendants and others whose freedom it seeks to restrict. In order to do that job effectively, judges must be perceived as genuinely neutral arbiters who will not place their thumbs on either side of the scales of justice, whether intentionally or unwittingly.
In that regard, one of the most notable things an informed citizen would perceive about our judiciary is the extraordinary overrepresentation of former prosecutors and other courtroom advocates for government at all levels, including the Supreme Court. Indeed, as documented in a Cato Institute study that I authored in 2019 and updated last spring, the ratio of former prosecutors to former criminal defense lawyers on the federal bench is four to one, and the ratio of all former courtroom advocates for government (including but not limited to former prosecutors) to former civil liberties lawyers, public defenders, and private criminal defense attorneys is a staggering seven to one.
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