From the outset of his presidency, Joe Biden has had a mission of truly making the federal judiciary look like America. He hasn’t just nominated and seen confirmed more women and more candidates of color of both genders (but particularly women), he’s nominated people with a far wider range of professional experience than any modern president. He’s been successful in that, rounding out his first year in office with more confirmed judges than any other president in his first year since JFK, judges with remarkable diversity: “21 public defenders, 14 civil rights attorneys, 10 plaintiff-side lawyers, three former legal aid lawyers, three consumer protection lawyers, and one labor lawyer.”
What he has also achieved is unmasking the true extent of Republican racism. That’s the sort of sideways argument Carl Hulse is making in The New York Times without really saying it.
Instead, Hulse alludes to Sen. Josh Hawley’s “pointed question” to Arianna Freeman, President Biden’s pick for a seat on the Philadelphia-based U.S. Court of Appeals for the Third Circuit. She would be the first Black woman—and first woman of color—to ever serve on the Third Circuit. Hawley attacked her work as a public defender, specifically for saving a convicted murderer from the death penalty. Sens. Tom Cotton (R-AR) and Ted Cruz (R-TX) are also quoted, with Cruz telling Freeman she had “devoted your entire professional career to representing murderers, to representing rapists, representing child molesters.”
There’s six paragraphs of Republicans saying incredibly sexist and racist things to Biden’s nominees, couched in the “soft on crime” attack, presented as “he said” before we get to the “she said” of “Democrats say ...” In this case, “Democrats say the tactic ignores a fundamental principle of the American justice system—that everyone has the constitutional right to be represented by counsel—and effectively seeks to disqualify from the bench anyone who has taken that obligation seriously when it comes to the accused.”
Why yes, that’s what the rule of law in this nation means—everyone has the right to be represented by competent legal counsel. That and “innocent before proven guilty” as a fundamental tenet of the justice system. Which is also under attack by Republicans, quite literally.
Consider the hearing for Nina Morrison, a nominee for a Federal District Court seat in New York. Morrison has worked with the Innocence Project—the organization formed expressly to save innocent people from incarceration, in the process often identifying the guilty ones—putting the bad guys away.
“The Innocence Project works to free the innocent, prevent wrongful convictions, and create fair, compassionate, and equitable systems of justice for everyone,” the organization says. “Our work is guided by science and grounded in antiracism.” And that part of the mission statement—those last three words—is the problem for Republicans.
“The whole of your record is deeply disturbing,” Cruz told Morrison. “Across this country, Americans are horrified at skyrocketing crime rates, at skyrocketing homicide rates, at skyrocketing burglary rates, at skyrocketing carjacking rates,” he said. “All of those are the direct result of the policies you’ve spent your entire lifetime advancing.”
Hawley told her he was opposing her and any other “soft on crime” nominee Biden would put forward. “I will oppose you and anyone else the administration sends to us who do not understand the necessity of the rule of law,” he said. Because representing unjustly accused people of color—and getting innocent people out of prison, as Morrison has devoted her career to doing—does not fall into Hawley’s definition of the rule of law.
This is by way of preview for Judge Ketanji Brown Jackson’s Supreme Court confirmation hearings next week. She is Black. She is a woman. She has, in her remarkable career, represented criminal defendants that have included Guantánamo Bay detainees. The Republican National Committee, in fact, has produced a background paper in which it states that her “advocacy for these terrorists” has “[gone] beyond just giving them a competent defense.” Whatever the hell that is supposed to mean.
Minority Leader Mitch McConnell has leapt on board this line of opposition, not attacking her record as a public defender directly, but damning her by her supporters. “[T]he soft-on-crime brigade is squarely in Judge Jackson’s corner.”
Judiciary Chair Dick Durbin (D-IL) made it clear for The New York Times what’s happening here: Republicans attack “assertive women of color” by accusing them of being “soft on crime.” Because racist white Republican men are still using that Willie Horton tactic to score political points.
These nominees deserve tons of credit for politely sitting through the vile accusations from those racists, and Biden deserves all the credit in the world for facing those Republicans head on with the nominations he’s made. It’s not enough, however, not when the Supreme Court is controlled by the people those same racist white Republican men put there.
The only way the vision Biden has for a federal judiciary—and his vision for justice in America—will be realized is by expanding the court.