Should Judge Ketanji Brown Jackson be confirmed to the United States Supreme Court, she would be not only the first black woman to accede to the highest court, but also the first justice to have worked as a federal public defender, a position she filled between 2005 and 2007.

With Republicans already signaling that Judge Jackson’s record on crime will be a major line of questioning for the aspiring justice, the role of public defenders in the American legal landscape is set to emerge as crucial to understanding the kind of justice Judge Jackson is likely to become.   

Senator McConnell, who recently noted that he has yet to decide whether to vote to confirm Judge Jackson, has commented that “her supporters look at her resume and deduce a special empathy for criminals. I guess that means that government prosecutors and innocent crime victims start each trial at a disadvantage.”

Senator Hawley, who has been among Judge Jackson’s most vocal critics, created waves and outrage in equal measure last week when he tweeted, “Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker.” 

He was referring to Judge Jackson’s sentencing decisions both from the bench and as a member of the United States Sentencing Commission. Others disagree with Mr. Hawley’s assessment of the record, with an Ohio State University law professor, Douglas Berman, calling Judge Jackson’s sentencing habits “pretty mainstream.”

Before Judge Jackson was handing down criminal sentences from the bench and setting guidelines as a member of the United States Sentencing Commission, she was a public defender.  

The Legal Information Institute defines a public defender as “a lawyer who represents indigent criminal defendants.” Such lawyers are appointed by the court to represent defendants and are paid by the county, state or federal government — putting the state in the position of being both the accuser and the defender of an individual on trial.

The position was created in the wake of the Supreme Court’s decision in Gideon v. Wainwright. In the case, a prisoner of Florida, Clarence Earl Gideon, who was doing time for burgling a cigarette machine, sued the secretary of the Florida Department of Corrections, Louie Wainwright. Gideon had asked at trial for an attorney and been denied one.

The Supreme Court reversed the conviction and held that the Constitution guaranteed the right to an attorney. The holding interpreted the Constitution to require not only that a person be permitted to hire his own lawyer but that he couldn’t be tried without someone providing him counsel. 

Writing for the unanimous majority, Justice Hugo Black expressed the view that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

The justices found legal grounding for the universal right to counsel in cases involving a felony and for defendants already incarcerated in the Constitution’s Sixth Amendment, which guaranteed criminal defendants in federal trials the “the assistance of counsel for his defense.” 

Gideon extended that mandate to state litigation as well, and furthermore clarified that attorneys for those too indigent to pay would be compensated from the public purse. In his case before the Nine, Gideon was represented by Abe Fortas, one of America’s greatest jurists and a future justice himself. 

Ever since Gideon, funding has been a persistent problem for public defenders, resulting in enormous caseloads. In 2017, Pew reported that in New Orleans 60 public defenders manage roughly 20,000 cases a year.  

Only 8 percent of federal judges have served as public defenders, but a study last spring by a pair of professors at Harvard and Yale that canvassed three-quarters of a million verdicts showed that former public defenders are “less likely to hand down sentences involving any kind of incarceration.” 

The authors describe how “charges assigned to public defenders are about two to three percentage points less likely to end in incarceration — a difference that adds up.”

The “sherpa” for Judge Jackson’s nomination and confirmation, Douglas Jones, the one-time senator of Alabama, has said, “Look, she was a public defender, but that doesn’t mean that she is soft on crime, that she’s pro-criminal.” 

Judge Jackon’s highest-profile client as a public defender was a Guantanamo Bay detainee, Khi Ali Gul, a man whom America considers an “enemy combatant.” Judge Jackson helped him petition for release. A Detainee Assessment released by Wikileaks notes that Gul “served as an intelligence chief under the Taliban regime during which he harassed and assassinated Afghan intellectuals.”

Judge Jackson, who has traversed three previous Senate confirmation hearings thus far, will likely face her toughest questions yet before she gains a seat on the most important court short of the press. The holding of Gideon notwithstanding, in this political trial by Senate, she will have to serve as her own attorney.