The Preamble of the Texas Disciplinary Rules of Professional Conduct for a lawyer’s responsibility for their “client’s position under the rules of the adversary system.”
That responsibility has no gray area. In the criminal arena, a lawyer must represent each client, regardless of the crime for which the client stands charged, with the same ethically demanded zealousness. That is not only the professional rule of conduct in Texas but also in the other 49 states and at the federal judicial level.
Federal Public Defender
Before she became a federal judge in the District of Columbia, Ketanji Brown Jackson served as an assistant federal public defender between 2005 and 2007. During that time, the court appointed her to represent a wide range of criminal defendants, including sex offenders, violent crime offenders, and four uncharged accused terrorists detained in detention facilities at Guantanamo Bay, Cuba. Jackson represented each of those offenders professionally and “zealously” as she was ethically required to do, regardless of her personal feelings or ideological differences with those clients.
A public defender represents indigent defendants accused of crimes. The overwhelming majority of criminal defendants in Washington, D.C., are Black and poor without the financial means to retain an attorney.
Constitutional Right to a Lawyer
In 1932, the U.S. Supreme Court held in Powell v. Alabama (the infamous “Scottsboro Boys” case in which nine black men were falsely convicted of raping two white women in racist Alabama in 1931) that poor people are constitutionally entitled to the “guiding hand” of a lawyer when charged with a criminal offense.
That landmark decision effectively led to the creation of the institution of public defenders.
Historically Supreme Court Justices Primarily White Men
There have only been two Black Americans who before being nominated to the U.S. Supreme Court served the American judicial system as “public defenders”: Thurgood Marshal who became the first male Black American to serve on the high court and Ketanji Brown Jackson who will be the first female Black American to serve on the court—both of whom were harangued, harassed, and insulted by White U.S. Senators during their confirmation hearings.
The racist assault on Justice Marshal came from a cadre of southern segregationists senators: John McClellan (D-Ark); Strom Thurmond (R-S.C.), Sam Erwin (D-N.C.), and James Eastland (D. Miss). The racist assault on Judge Jackson came from a like-minded cadre of Southern senators whose political histories are replete with racism: Lindsey Graham (R-S.C.); Ted Cruz (R-TX) Josh Hawley (R-MO); Marsha Blackburn (R-TN); and Mitch McConnell (R-KY).
These racist assaults against two groundbreaking Supreme Court nominations were tied to their representation of poor people, especially people of color.
Graham and Sen. Blackburn viciously and vulgarly tried to paint Justice Jackson as “soft on terrorism” because of her public defender representation of Guantanamo Bay detainees while Sens. Hawley and Cruz tried to paint her as “soft on crime” because of her sentencing decisions as a U.S. District Court judge in child pornography cases.
These racist assaults were orchestrated by Senate Minority Leader McConnell, who wanted to use his southern-based racist Republican senators to pursue the Republican Party’s “anti-Black” agenda.
It is tragically ironic that while these same Republican senators accused, without any truth or merit, Ketanji Brown Jackson of being “soft” on sexual predators, they enthusiastically supported and embraced the Supreme Court nomination of Brett Kavanaugh, who faced serious and credible allegations of being a “sexual predator.” The difference between the two: Ketanji Brown Jackson is a Black American female who, as an attorney, represented poor, primarily people of color, while Bret Kavanaugh is a White American male who, as an attorney, represented wealthy, exclusively white corporate interests.
These two nomination hearings reflect the class differences and racial polarization that scars the American way of life.
Tethered to the History of Racism
Writing in an April 22, 2016 edition of the Washington Post, Terence Samuel, the Managing Editor of NPR News, made this poignant observation about the “legacy of Barak Obama,” the nation’s first Black American president:
“Barak Obama’s presidency will always be tethered to the history of race in America. It has, so far, been offered as Exhibit A of how far the country has moved toward overcoming its ugly racial past. Others use it, with equal force, to make the opposite point, that raced-based antagonism is so endemic to the American way of life that it will take more than one election of a black president to move the country beyond its long traditions of racism and discrimination.”
Four years after Terence Samuel made that observation about the two views of American society, an overwhelming majority of white voters elected an admitted white nationalist and racist president. Four years after that election, the white nationalist president encouraged thousands of his supporters to engage in an insurrection at the nation’s Capitol Building on January 6, 2021, in a failed attempt to overthrow the government through violence.
These two racist-inspired national events coupled with the blatant racist attacks against Judge Ketanji Brown Jackson reveal that America has not moved far beyond its long traditions of racism and discrimination.
Still, amid the racist rants by the Confederacy of white U.S. senators during Judge Jackson’s confirmation hearings, Black American Sen. Corey Booker (D-NJ) brought the elegant judge to tears. He inspired many other Americans, both Black and White, who hope that “this country is getting better:
“You got here how every Black woman in America who’s gotten anywhere has done,” Booker told the judge, by “being like Ginger Roberts [who] said, ‘I did everything Fred Astaire did, but backwards and in heels’.”
Pointing to what her ascension to the nation’s highest court means to Black American women everywhere, Sen. Booker added: “You’re a person who is so much more than your race and gender. It’s hard for me not to look at you and see my mom, my cousins… I see my ancestors and yours. Nobody is going to steal [your] joy. You have earned this spot. You are worthy. You are a great American … You’re here. And I know what it’s taken for you to sit in that seat.”
While Ketanji Brown Jackson will assume her honorable position on the U.S. Supreme Court, former mercantile store worker Sen. Marsha Blackburn will return to the hills of Tennessee to stir up more racist antagonisms to support her “anti-Black American” political agenda. Cancun traveling Sen. Ted Cruz will find time out of his busy racist schedule to angrily berate and belittle airport employees just trying to make a living and pay the bills.
The disenfranchised classes in America can now sleep knowing they at least have one more zealous advocate and voice of reason on the United States Supreme Court.