# So is Ketanji Brown Jackson getting on the Supreme Court or not? **URL:** \ **Category:** Politics & Elections\ **Created:** [March 23, 2022, 4:32pm UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573 "2022-03-23T16:32:51Z")\ **Posts on this page:** 20\ **Page:** 18
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 8, 2022, 9:02pm UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/341 "2022-04-08T21:02:31Z")
> [@Procrustus](#): > > You’re certainly not alone in your views, a significant number of judges and analysts agree with you. You are the only criminal defense attorney I’ve heard express these views, however. Most are pretty passionate defenders of the Warren Court protections of criminal defendants. I take a different tack partially because of what I referred to earlier. In addition to the laundry list of “protections” for criminal defendants, the Court accepted plea bargaining. So what has happened is that the Legislature has realized that it cannot possibly provide a Warren Court approved trial to everyone arrested so it does something arguably worse than the previous system: it makes the penalties for crimes so harsh that only a fool would “take advantage” of his Warren Court given rights. > [@Senegoid](#): > > You’re agreeing that all these things are good ideas, but just not spelled out in the Constitution. Maybe what you’re saying is actually a good compelling argument _against_ originalist or textualist judicial philosophy. Not all good things are required by the Constitution. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [April 8, 2022, 9:12pm UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/342 "2022-04-08T21:12:47Z")
> [@UltraVires](#): > > So what has happened is that the Legislature has realized that it cannot possibly provide a Warren Court approved trial to everyone arrested so it does something arguably worse than the previous system: it makes the penalties for crimes so harsh that only a fool would “take advantage” of his Warren Court given rights. I don’t for a minute accept your theory that penalties are tough because it’s expensive to provide fair trial. Penalties have increased (to the extent they have) for political reasons, not budgetary reasons. In fact, I’d wager that longer sentences (even with plea bargaining) cost the State a ton more money than hiring assigned counsel or having cops read _Miranda_ rights. > [@UltraVires](#): > > In addition to the laundry list of “protections” for criminal defendants, the Court accepted plea bargaining. While the Court added protections for defendants who entered pleas in t he 1960s and 1970s, plea bargaining has been around much longer. > Although not fully accepted by the appellate courts, plea bargaining began to mushroom in the early 20th century. One researcher tracked guilty pleas for [New York](https://www.britannica.com/place/New-York-state) county, New York, and found that between 77 percent and 83 percent of defendants pleaded guilty between the years 1900 and 1907. Two scholars in the 1920s found that plea [bargains](https://www.britannica.com/dictionary/bargains) had become standard practice in other jurisdictions. In Cook county, Illinois, for example, 96 percent of felony prosecutions in 1926 resulted in guilty pleas. > **[Plea bargaining | Definition, Types, History, & Facts](https://www.britannica.com/topic/plea-bargaining)** > > Plea bargaining, in law, the practice of negotiating an agreement between the prosecution and the defense whereby the defendant pleads guilty to a lesser offense or to one or more of the offenses charged in exchange for more lenient sentencing,... ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 8, 2022, 9:45pm UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/343 "2022-04-08T21:45:11Z")
> [@Procrustus](#): > > I don’t for a minute accept your theory that penalties are tough because it’s expensive to provide fair trial. Penalties have increased (to the extent they have) for political reasons, not budgetary reasons. In fact, I’d wager that longer sentences (even with plea bargaining) cost the State a ton more money than hiring assigned counsel or having cops read _Miranda_ rights. The dirty little secret is that for most defendants, they do not get those draconian sentences. The politicians get to pound their chest about how “tough on crime” they are but don’t have to enforce those sentences----that is unless someone is foolish enough to test them. If you look at extreme sentences, it is almost always someone who demanded their constitutional right to a trial. As an example, I have an appellate client (I didn’t represent him at trial) but was offered a minimum 4 year term in the middle of trial for sexual assault. He refused and was convicted. The judge gave him a 180 year minimum term (obviously a life without parole sentence). What he did was the same mid trial as it was after trial. One can only say that the difference between 4 years and the rest of his life is solely because of his demand for trial. > [@Procrustus](#): > > While the Court added protections for defendants who entered pleas in t he 1960s and 1970s, plea bargaining has been around much longer. The article you cite is misleading. First it says that most criminal defendant pled guilty between 1900 and 1907. That is unsurprising because then, as now, most criminal defendants ARE guilty and don’t want to set through a pointless trial where they have to hear their names drug through the mud. The second data point in the article selects Cook County, IL in 1926, the height of prohibition, where there was, I’m sure, pretty harsh penalties and high incidences of alcohol possession violations, that the State wanted to simply push through the prosecutions. I really think that this is something that can get a broad bipartisan support (although returning to this thread, the GOP treatment of Jackson for being a public defender is absolutely appalling and indefensible). ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 8, 2022, 10:09pm UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/344 "2022-04-08T22:09:36Z")
As an example, first offense non aggravated DUI in my state is punishable by up to six months in the regional jail. Such a sentence is laughable as nobody, literally nobody gets anywhere near that and the overwhelming majority of first offense DUI guilty pleas involve no jail time at all. But if you decide to take it to trial the judge can give you the full six months and under current case law, the Supreme Court will not even review the sentence because it is within statutory limits. So the message is clear: shut up and plead guilty or else you are risking your job, your home, your marriage. The law should reflect what society believes is the actual reasonable punishment for first DUI, and if it 99% of people who commit first offense DUI get no jail time, then the law shouldn’t allow this six month hammer to hang over a defendant’s head, again for no reason that the forced guilty plea. ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [April 9, 2022, 12:24am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/345 "2022-04-09T00:24:43Z")
> [@SenorBeef](#): > > What is your explanation for the lack of vote on Merrick Garland, and 47 no votes on an obviously qualified justice? Justice Barrett was confirmed 52-48, and Justice Kavanaugh 50-48. What does that have to do with “Republicans politicizing the process”? ---
**Author:** ![FlikTheBlue](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fliktheblue/32/10972_2.png) [@FlikTheBlue](https://boards.straightdope.com/u/FlikTheBlue)\ **Post date:** [April 9, 2022, 1:37am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/346 "2022-04-09T01:37:00Z")
> [@MrAtoz](#): > > Forgive an elementary question: to what extent does this matter? To my understanding, associate justices all have equal status. Their seniority on the court determines things like who gets to write opinions and who gets to speak first, but otherwise they all get a vote. Does it make any difference whether Justice Jackson would be replacing Breyer, or a hypothetical Thomas vacancy? It would matter in the sense that the court would be 5-4 conservative instead of 6-3 conservative. Yes, Republicans would have another hissy fit, there would be a greater chance of a 50/50 split instead of 53/47, and the possibility of losing Manchin or Sinema. But unlike when RBG died, Breyer still being there would mitigate the risk of those things happening. Of course this is hypothetical and I don’t really expect Thomas or one of the other conservative justices to die in the next few weeks. ---
**Author:** ![Baker](https://avatars.discourse-cdn.com/v4/letter/b/bb73d2/32.png) [@Baker](https://boards.straightdope.com/u/Baker)\ **Post date:** [April 9, 2022, 2:06am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/347 "2022-04-09T02:06:58Z")
Arguably the best scene from my favorite movie. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [April 9, 2022, 2:19am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/348 "2022-04-09T02:19:40Z")
> [@UltraVires](#): > > Not being able to afford an attorney. The clear public understanding at the time was that the government couldn’t use Star Chamber tactics such that you had to speak for yourself. That you could hire, if you could afford one, an attorney to speak on your behalf, not that the government had to create a social welfare program of providing free attorneys. The Constitution literally says in plain language that a person has the right to an attorney. If a defendant cannot afford an attorney, seems to me the state has to provide one. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 9, 2022, 2:28am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/349 "2022-04-09T02:28:55Z")
Under the Fourth Amendment must the government provide a house that may not be searched without a warrant? ---
**Author:** ![Atamasama](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/atamasama/32/12961_2.png) [@Atamasama](https://boards.straightdope.com/u/Atamasama)\ **Post date:** [April 9, 2022, 2:33am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/350 "2022-04-09T02:33:18Z")
The 6th Amendment says a person has a right “to have the assist­ance of coun­sel for his defense”. The 4th Amendment doesn’t say you have a right to have a house. 🙄 No more than the 2nd Amendment says you have a right to have a gun. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 9, 2022, 2:33am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/351 "2022-04-09T02:33:57Z")
There are two ways to look at this: 1. A defendant must be able to hire counsel to speak on his behalf. 2. The state must enact a social welfare program to provide counsel to indigent defendants. When 150 years of conduct shows that #1 was really the thing, why does the Warren Court shift to #2? ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [April 9, 2022, 2:36am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/352 "2022-04-09T02:36:03Z")
> [@UltraVires](#): > > Under the Fourth Amendment must the government provide a house that may not be searched without a warrant? No, because the Constitution doesn’t say you get lodging. It does say you get due process. How can you have a fair trial if you don’t have a lawyer? Many things must be arranged for due process. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 9, 2022, 2:47am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/353 "2022-04-09T02:47:27Z")
> [@RickJay](#): > > How can you have a fair trial if you don’t have a lawyer? How can you have privacy without a house? ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [April 9, 2022, 3:04am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/354 "2022-04-09T03:04:03Z")
Easily. Even the homeless have the right to not be searched without probable cause. If the amendment said that every person has a right to a house in which they can store their effects without fear of their being searched, then you might have a point, but it doesn’t. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 9, 2022, 3:18am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/355 "2022-04-09T03:18:09Z")
But if you look at Gideon v. Wainwright, much was made about the disparity about how a poor person could not afford a lawyer but a rich person could. That is the criticism of the Warren Court. A rich person can afford a house or can afford private security that prevents a person (or the police) from knocking on your front door, or getting close enough to hear an argument or toilet flushing to manufacture probable cause. Their opinions were worthless and inconsistent and have left society with a hodgepodge of “protections” which have turned out to be worse than anything before. ---
**Author:** ![Bootb](https://avatars.discourse-cdn.com/v4/letter/b/e19b73/32.png) [@Bootb](https://boards.straightdope.com/u/Bootb)\ **Post date:** [April 9, 2022, 5:15am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/356 "2022-04-09T05:15:12Z")
> [@UltraVires](#): > > There are two ways to look at this: > > 1. A defendant must be able to hire counsel to speak on his behalf. > 2. The state must enact a social welfare program to provide counsel to indigent defendants. > > When 150 years of conduct shows that #1 was really the thing, why does the Warren Court shift to #2? Because #2 is the best way to provide due process? The US criminal justice system is based on the proposition that it is better for 10 guilty people to go free, than for 1 innocent person to be wrongly convicted. Your option #1 _inherently cannot_ put that into full practice by its very nature. The Warren court was, by and large, an unconstitutional mess, but Gideon v. Wainwright is one of the very few things that they got correct. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 9, 2022, 5:25am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/357 "2022-04-09T05:25:14Z")
> [@Bootb](#): > > The Warren court was, by and large, an unconstitutional mess, but Gideon v. Wainwright is one of the very few things that they got correct. Why not an O.J. type Dream Team, with investigators and paralegals and 24/7 staff, for an indigent defendant? A rich person can afford it, so why shouldn’t the state provide it? And why is that in the Constitution? ---
**Author:** ![Atamasama](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/atamasama/32/12961_2.png) [@Atamasama](https://boards.straightdope.com/u/Atamasama)\ **Post date:** [April 9, 2022, 6:31am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/358 "2022-04-09T06:31:33Z")
> [@UltraVires](#): > > Why not an O.J. type Dream Team, with investigators and paralegals and 24/7 staff, for an indigent defendant? The federal government provides nothing for it. It’s an unfunded federal mandate. Not all states are the same. Here’s a web site discussing the issue. > **[Nine ways that states can provide better public defense](https://www.prisonpolicy.org/blog/2021/07/27/public-defenders/)** > > We suggest a few questions to ask to assess the strength of your state's public defense system. So you can take this up with your local government. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [April 9, 2022, 7:04am UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/359 "2022-04-09T07:04:13Z")
I must say, I hadn’t expected the argument that the legal system isn’t _sufficiently_ stacked in favour of the wealthy. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 9, 2022, 1:41pm UTC](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573/360 "2022-04-09T13:41:37Z")
This type of statement is instructive when we are discussing constitutional theory. Whether and to what level the playing field should be equal between rich and poor in the legal system is an interesting political question, but one which the Constitution has nothing to say. Observing that the Constitution takes no position on it does not mean that the observer believes that such a situation is good. [Previous page](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573.md?page=17) [Next page](https://boards.straightdope.com/t/so-is-ketanji-brown-jackson-getting-on-the-supreme-court-or-not/961573.md?page=19)