Washington, DC (March 21, 2022) – NACDL celebrates the historic nomination of Ketanji Brown Jackson to the Supreme Court of the United States. For the first time, a nominee offers this nation lived experience as a Black woman and as a former public defender – perspectives which have historically been minimized throughout the federal judiciary and totally excluded from the highest court in the land.
This sea change revives the vision of the Framers of the Constitution who designed the judiciary to serve as a check and balance on the abuse of government power suffered, not at the hands of a monarch, but of executive and legislative branches responding to the will of the majority. Majorities, the Framers understood, may not even register the rights and interests of the minority or, worse, may deliberately sacrifice those rights and interests and, for this reason, the Framers envisioned a neutral judiciary capable of limiting the exercise of government power over our lives.
Contrary to this vision, however, majorities in the executive and legislative branches have populated the judiciary, with few exceptions, with a small sliver of the profession – former government lawyers, former prosecutors, and former corporate lawyers, mostly from elite law schools. This small cross section tends to trust, rather than scrutinize, government power, which fatally undermines the Framers’ vision of checks and balances.
To illustrate, the United States Sentencing Commission just this week reported that 98.3 percent of federal criminal cases end with a plea bargain. This statistic alarms virtually every defender but hardly registers with many, if not most, government lawyers, prosecutors, and corporate lawyers – the pool from which the legislative and executive have populated the judiciary. Defenders appreciate the threat posed to individual liberties by the disappearance of trials because, unlike prosecutors and corporate lawyers, they have witnessed the criminally accused routinely surrender the protections embedded in the Bill of Rights in the face of prosecutorial threats of increased punishment for exercising the right to bail, the right to be free from unreasonable searches and seizures, and the right to trial by jury. As the last 40 years have proved, the hegemony of this government-friendly mindset has gutted the Bill of Rights, converted the Framers’ vision of a system of trials into an assembly line of pleas, and promoted mass incarceration of criminally accused from every walk-of-life but especially of Black, Brown, and poor people.
To restore the Framer’s vision, every American who prefers liberty and freedom to unbridled government power should celebrate the nomination of Ketanji Brown Jackson not only as a historic opening on the Court to the lived experience of a Black woman, but as an opportunity to balance a judiciary strongly inclined to favor government power over individual rights.
