By his own standards with Ketanji Brown Jackson, Josh Hawley is soft on terrorists
Smart politics and good lawyering often don’t mix. Consider the Missouri lawyer who represented Mujahedeen-e-Khalq in attempting to have this Iranian militant group taken off the U.S. list of terrorist organizations. This lawyer later sought public office, only to have opponents cast up this representation as disqualifying. Members of the group this lawyer took as a client allegedly killed several Americans, but later renounced violence. Yet when the lawyer subsequently ran for office, a competing candidate ran a TV ad attacking him, asserting: “I guess that Washington, D.C., is the only place where there is a statute of limitations on murdering Americans.”
That lawyer was Josh Hawley. And despite such criticism, he was elected Missouri attorney general, and subsequently United States senator. As a member of the Senate Judiciary Committee, Hawley played an active role in the hearings concerning Judge Ketanji Brown Jackson’s nomination for the Supreme Court. He asserted that sentences she imposed in seven cases constituted an “alarming trend of lenient sentencing in child pornography cases,” a charge that does not hold up under careful fact-checking.
But Hawley also attacked the judge for her work as a lawyer before her initial judicial appointment. Even prior to the Judiciary Committee hearings, Hawley stated, “One of my big concerns is she represented Guantanamo Bay terrorists.”
Neither Sen. Hawley nor Judge Jackson should be criticized for the clients they represented while in legal practice. The Sixth Amendment to the United States Constitution applies to both federal and state courts, providing: “In all criminal prosecutions, the accused shall … have the assistance of counsel for his defense.”
We celebrate courageous lawyers such as John Adams, who represented the British soldiers charged with the Boston Massacre. Atticus Finch’s representation of Tom Robinson in “To Kill a Mockingbird” has inspired many to become lawyers and represent the criminally accused. Before his appointment to the Supreme Court, Thurgood Marshall traveled across the country representing those who otherwise stood little chance of obtaining a fair trial in communities prejudiced against them.
Our legal system works only if individual lawyers represent those charged with crimes. The gravity or heinous nature of the allegations often makes legal representation even more crucial. Thus, lawyers zealously defend those charged with murder, terrorism and seditious conspiracy against the United States in state and federal courtrooms across the country.
Because representation is required by the Sixth Amendment, the American Bar Association Model Rules of Professional Conduct state: “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” A comment to these ethical rules provides: “Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval.”
The media covering Judge Jackson’s hearing focused on the unsubstantiated attacks concerning a few of the judge’s sentencing decisions. However, this is an issue unlikely to occur with future nominations, because very few Supreme Court nominees ever served as trial judges. On the current court, only Justice Sonia Sotomayor served as a trial judge, and the grilling that Judge Jackson received will discourage future nominations of former trial judges for the Supreme Court.
But virtually all Supreme Court nominees have represented clients during their legal careers. Hopefully, senators in future hearings will not cross-examine judicial nominees about clients they represented pursuant to the Sixth Amendment mandate that all criminally accused shall have the assistance of counsel for their defense.