Democrat Sen. Dick Durbin (D-IL) on Wednesday delivered a lengthy defense of Ketanji Brown Jackson in reference to Republican senators’ questions about Jackson’s work representing a member of the Taliban as a public defender in 2005.
Durbin’s monologue on day three of Jackson’s Supreme Court confirmation hearing was specifically referring to accusations from Sens. Lindsey Graham (R-SC) and John Cornyn (R-TX) that Jackson called then-President George W. Bush and Secretary of Defense Donald Rumsfield “war criminals” in a habeas corpus petition for a Guantánamo Bay detainee, Khi Ali Gul.
“Let just ask — I don’t know you well, but I have been impressed by our interaction. You’ve been gracious and charming. Why in the world would you call Secretary of Defense Rumsfeld and George W. Bush ‘war criminals’ in a legal filing? It seems so out of character for you,” Cornyn asked Jackson on day two of the hearing.
At the time, Jackson said she did not “remember that particular reference” and said she was “representing [her] clients and making arguments.”
“I did not intend to disparage the president or the secretary of defense,” she continued.
Durbin on Wednesday orated for several minutes, citing multiple corporate media fact checks on Cornyn and Graham’s accusation before giving Jackson the chance to address the question once more. Durbin said:
Yesterday, Sen. Graham said you had gone too far in calling the government quote: “a war criminal” in pursing charges against a terrorist. Later Sen. Cornyn asked Judge Jackson, I quote: “You referred to the Secretary of Defense and the president of the United States as war criminals. Why would you do something like that?
Durbin then quoted a CNN fact check, which does not deny that Jackson accused Bush and Rumsfeld of “war crimes,” but says the GOP Senators “left out important context.”
“As I noted yesterday and repeat this morning, these charges don’t hold up. A CNN fact check said: both Graham and Cornyn left out important context. Specifically, neither mentioned that Jackson’s allegation of war crimes was about torture. Also, Jackson didn’t explicitly use the phrase ‘war criminal.”’
Durbin then read from a New York Times fact check, which said the allegation “is a distortion and lacks context.” He continued:
The New York Times went on to say: “Judge Jackson did not specifically call the former president and defense secretary ‘war criminals.’ She was one of several lawyers in 2005 signing four essentially boiler plate habeas corpus petitions on the behalf of detainees at Guantánamo Bay that claimed the United States government had tortured the men and that such acts ‘constitute war crime.
The Democrat senator then retrieved a third fact check from the Jeff Bezos-owned Washington Post, which noted that Bush and Rumsfeld were named in the petitions “because they have to be to clear procedural hurdles,” and that Barack Obama was later named in the petitions when the administration changed.
“But the larger point is that Jackson was acting as the detainees’ lawyer — and in her role as a public defender,” Durbin said, still quoting the Post. “And one of the underpinnings of the American justice system is that even the most reviled alleged criminals have the right to a vigorous defense.’”
After seemingly giving Jackson the ammunition she needed to defend herself, Durbin asked the judge if she would like to comment on his “statement.”
“Well senator, I would just say that public defenders don’t choose their clients, and yet they have to provide vigorous advocacy. That’s the duty of a lawyer. And as a judge now, I see the importance of having lawyers who make arguments, who make allegations,” she said in reply.
In the context of a habeas petition, especially early in the process of the response to the horrible attacks of 9/11, lawyers were helping the courts to assess the permissible extent of executive authority by making arguments, and we were assigned as public defenders. We had very little information because of the confidentiality or classified nature of a lot of the record, and as an appellate lawyer, it was obligation to file habeas petitions on behalf of my clients.
Earlier in the hearing, Cornyn had criticized Durbin for choosing to “editorialize and contradict the point being made by this side of the aisle [Republicans]…”after every series of questioning.” Cornyn said:
My language was, I asked whether she had called them ‘war criminals,’ and she said under oath to you, ‘no I did not’ — although the record is plain as it can be that she accused them of ‘war crimes.’ Now, I don’t understand the difference between calling somebody a ‘war criminal’ and accusing them of ‘war crimes.’ Maybe in some other foreign language that I don’t frankly understand — maybe that would make sense, but not in accordance with the common understanding of the English language.
Cornyn then told Durbin he did not think it was “appropriate” for the chairman to try to defend Jackson against every line of questioning from the GOP when she is “doing a pretty good job of defending her own position and answering questions.”