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What Tom Cotton got wrong about Nuremberg and Ketanji Brown Jackson

Sen. Tom Cotton (R-Ark.) questions Judge Ketanji Brown Jackson during her Senate Judiciary Committee confirmation hearing on March 22. (Jim Watson/AFP/Getty Images)
5 min

In a speech on the Senate floor Monday announcing his opposition to the confirmation of Judge Ketanji Brown Jackson to the Supreme Court, Sen. Tom Cotton (R-Ark.) pointed to the judge’s past work as a federal public defender, which included defending Guantánamo detainees. To make his point, he brought up another Jackson: Supreme Court Justice Robert H. Jackson, who served on the court from 1941 until his death in 1954.

“You know, the last Judge Jackson left the Supreme Court to go to Nuremberg to prosecute the case against the Nazis,” he said. “This Judge Jackson might have gone there to defend them.”

It’s true the justice left the court temporarily to prosecute Nazis at Nuremberg after World War II. But here’s the thing: Jackson not only supported the Nuremberg defendants’ right to counsel, he was a key part of the governing body that enshrined it into international law.

On May 2, 1945, President Harry S. Truman appointed Jackson to lead an American delegation to prepare and prosecute war crimes charges against European Axis powers. The appointment of such a high-ranking official prompted the other Allied powers to take the trials seriously, according to St. John’s University law professor and Jackson scholar John Q. Barrett.

But before trials could even start, the international delegation had to agree on a framework. There was not yet an International Criminal Court, and the crimes had taken place in many different countries. All that summer of 1945, Jackson worked in London with his British, French and Soviet counterparts on what became known as the London Charter, establishing the rules of the International Military Tribunal. He signed it on behalf of the United States on Aug. 8, 1945.

Russians could face war crimes tribunal. The first one, in 1474, ended in a beheading.

“The constitution of the Nuremberg trials was a constitution [Jackson] wrote,” Barrett told The Washington Post. “He believed in it seriously.”

Section Four, Article 16 concerned safeguards for a fair trial, including that a “Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.”

Not only were defense attorneys guaranteed, “they were on the U.S. payroll,” Barrett said. Most of the defense attorneys were German professionals, and “the U.S. gave them housing and mess privileges. Germany was in rubble, so it was a good deal to be one of those defense attorneys.”

“Justice Jackson believed everyone has the right to a fair trial, which includes a vigorous defense,” said Kristan McMahon, president of the nonprofit Robert H. Jackson Center, adding, “And without that, a trial would not be fair.”

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The Jackson Center has a detailed timeline of the Nuremberg trials and Jackson’s role in them here.

McMahon also pointed to several of Jackson’s speeches, such as a 1950 address at Stanford University, during which he said the general public often misunderstood an attorney’s duty to “liv[e] up to his code on behalf an unpopular client.” And in a November 1953 address to the American Bar Center, he said, “We believe it is a duty to champion all fundamental rights under the law, but we recognize a special trust and competence to safeguard every man’s right to a fair trial, on which every other right is dependent.”

Jackson also dissented in the notorious 1944 case Korematsu v. United States, which allowed Americans of Japanese descent to be forced from their homes into internment camps. In his dissent, he pointed out that Fred Korematsu had not been charged with or convicted of a crime, only “of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.”

Jackson’s belief in the right to an attorney does not appear to have been universal, however. In the 1942 case Betts v. Brady, Jackson sided with the majority in a 6-to-3 decision that indigent defendants did not have a right to an attorney except under special circumstances. (Betts v. Brady was overturned in 1963 in Gideon v. Wainwright.)

It’s difficult to know Jackson’s reasoning in Betts v. Brady since he didn’t write the opinion, but Barrett, the law professor, points to the facts in the case: It was a somewhat simple robbery trial, and it was a bench trial, meaning the judge would have done “some of the protective work for the defense.” Jackson may have thought the defendant wasn’t harmed by not having an attorney in this particularly instance. Ultimately, Barrett noted, Jackson was the newest justice on the bench and his vote either way would not have made a difference.

In other cases, Jackson was a strong defender of due process and of the Sixth and 14th amendments guaranteeing the right to a speedy, public trial and equal protection, Barrett said.

“Justice Robert H. Jackson would deplore this nonsense,” Barrett wrote on Twitter of Cotton’s remarks.

In all likelihood, Cotton was aware of most if not all of these rights and principles when he made his speech. Perhaps as a teen, he, like many American high school students, was forced to watch “Gideon’s Trumpet,” the movie about the case guaranteeing a defendant a right to an attorney. But even if he wasn’t, he surely encountered this in his other studies — like Judge Ketanji Brown Jackson, Cotton graduated from Harvard Law School.