Ethical Challenges Presented in Judge Ketanji Brown Jackson’s Confirmation Hearings

Pride and Shame. Those are the two reactions I have to the confirmation hearings in connection with Judge Ketanji Brown Jackson’s nomination to be elevated to the United States Supreme Court. Pride that a stellar candidate, who has faced the challenges of being a woman of color in a profession that has historically been unwelcoming and downright hostile, is finally being considered for our highest court. But that pride is far outweighed by the shame I feel for the legal profession and our country over the offensive and degrading treatment Judge Jackson experienced during this process. It is disappointing that candidates who have the credentials to even be considered for this rarified position are subjected to ridicule and harassment in the process. But the recent hearings plummeted to a new low. The behavior of many of the Senators involved in recent questioning was inexcusable given their vaunted status, but even more so for those who are themselves, lawyers. As lawyers, they are expected to abide by at least the minimum standards set forth in the rules of professional conduct and to aspire to exceed those standards. Some may disagree as to whether these standards apply to Senators in connection with their elected roles as they are not representing clients. In my view, their deviation from these standards is troubling and disappointing. It reflects poorly on the legal profession and on how the public perceives the administration of justice.

The American Bar Association promulgated the Model Rules of Professional Conduct, which serve as a template in most states. In addition, many jurisdictions also have codes of civility, reflecting the expectation that lawyers will conduct themselves with decorum and respectfully towards others. That did not happen during the recent confirmation hearings and sadly during other Supreme Court nominations hearings before this. What is most disturbing about Judge Jackson’s experience is that it was tainted by bullying and bias rather than focusing on her indisputable merit for the post.

In evaluating the conduct of Senator lawyers during the confirmation hearings, consider the preamble to the Model Rules, which states, in part:

 [5] … A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. …

[6] … A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. …

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[9] In the nature of law practice, however, conflicting responsibilities are encountered. … Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. (Emphasis added.)

The parameters of acceptable lawyer conduct were plainly tested during the confirmation hearings. While Judge Jackson conducted herself with poise and respect in the face of relentless attacks, several lawyer Senators harassed and sought to intimidate her. The Senators demonstrated disrespect by rudely interrupting the nominee and mischaracterizing her record. They ridiculed her work as a public defender, a role that ensures equal access to justice for those who face obstacles to representation. And they were unprofessional, discourteous, and uncivil towards this nominee, already a sitting federal judge. They engaged in conduct that our profession usually condemns; it is not acceptable and we must hold them to a higher standard.