March 22, 2022

Durbin Questions Judge Ketanji Brown Jackson on the Right to Counsel

The Sixth Amendment to the Constitution guarantees the right to counsel for criminal defendants

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today questioned Judge Ketanji Brown Jackson about her role as a public defender at the second day of the Senate Judiciary Committee’s hearing on her nomination to be an Associate Justice of the Supreme Court.

Judge Jackson worked from 2005 to 2007 in the Office of the Federal Public Defender in Washington, D.C. At the time, the D.C. District Court was the exclusive venue charged with reviewing the legal claims of Guantanamo Bay detainees. It is a foundational principle in the legal profession that a lawyer’s representation of a client does not constitute an endorsement of the client’s views. Public defenders have an ethical obligation to represent their clients to the best of their ability. The Sixth Amendment to the Constitution guarantees the right to counsel for criminal defendants—and Judge Jackson has shown unwavering fidelity to the Constitution. 

Durbin said, “The right to counsel is a part of our constitutional system. I want to thank Senator Graham who served as an Air Force lawyer who said ‘Everyone deserves a lawyer. You are doing the country a great service when you defend the most unpopular people.’ It is a tradition that goes back before the founding of the country that lawyers do not identify [with] the positions of their clients...I want to give you an opportunity to address your work as a public defender.”

Judge Jackson responded, “After 9/11, there were also lawyers who recognized our nation's values were under attack—we could not let the terrorists win by changing who we were fundamentally. And what that meant was that the people who were being accused by our government of having engaged in actions related to this under our constitutional scheme were entitled to representation...That is what makes our system the best in the world. That is what makes us exemplary.”

Judge Jackson concluded, “Federal public defenders do not get to pick their clients. They have to represent whoever comes in. It is a service. That is what you do as a federal public defender, and you are standing up for the constitutional value of representation… In the early days, the legal landscape was very uncertain. This had never happened before, not only the attack but also the use of executive authority to detain people in this way, and there were a lot of questions. The Supreme Court had taken cases to understand the limits of executive authority, which is important. All of our liberty is at stake if we do not get it right in terms of what the executive can do. The Supreme Court has recently reaffirmed the Constitution does not get suspended in times of emergency.”

Many Republican national security experts and former officials previously defended lawyers who represented Guantanamo detainees, or who otherwise engaged on advocacy regarding the many complex, unprecedented legal issues that arose after the September 11 attacks. Republican Committee members also argued during the last administration that Trump judicial nominees should not be held accountable for the views and actions of their clients.

Video of Durbin’s questions in Committee is available here.

Audio of Durbin’s questions in Committee is available here.

Footage of Durbin’s questions in Committee is available here for TV Stations.

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