Facing questions during her confirmation hearing before the U.S. Senate on March 22, Supreme Court nominee Ketanji Brown Jackson caught what may be the strangest sort of flak I’ve seen in one of these circuses.
“Do you support, then, the idea that indefinite detention of an enemy combatant is unlawful?” asked U.S. Senator Lindsey Graham (R-SC), referring to Jackson’s representation of detainees held at the U.S. prison in Guantanamo Bay, Cuba.
In the course of that representation, Jackson signed an amicus brief asserting—correctly—that the detainees were entitled to challenge their indefinite detention without trial.
Before storming out of the hearing like one of the kids in Animal House, saying, “You can do whatever you want to us, but we’re not going to sit here and listen to you badmouth the United States of America,” Graham informed Jackson that according to the brief, the government “would have to release these people or try them and some of them, the evidence we can’t disclose because it’s classified.”
U.S. Senator Josh Hawley (R-MO) didn’t have to go as far as the amicus brief in question to come up with an objection. His problem was with Jackson representing those particular clients at all. After doing so as a public defender, he noted, “[S]he volunteered to continue that representation in private practice, which I think is interesting, and frankly, from my point of view, a little concerning.”
As attorneys themselves, it’s reasonable to expect that Graham and Hawley understand what attorneys do—represent clients. But apparently not.
As U.S. senators, one might also expect that they’d remember their oaths to support the Constitution of the United States. No dice there, either, when it comes to the Sixth Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
When the Gitmo detainees have received “trials” at all, those “trials” haven’t been speedy, or public, or before an impartial jury (the “trials” are secret affairs conducted by military tribunals).
Graham is firmly on record as opposing even that last bit, “Assistance of Counsel”: “When they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.” Hawley seems to agree.
Their problem with Jackson is that she did her job— and that, above and beyond doing her job, she supports the Constitution while they oppose it.
That position should disqualify them from holding their Senate seats, not her from taking the SCOTUS bench.
Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.