Conservatives Say They Care About the Constitution. Until They Talk About Criminal Justice.

Sen. Joe Biden is being attacked by GOP senators for attacking the Supreme Court nominee. They seem to be completely unaware of how the justice system operates. By focusing in part on Ketanji Brown Jackson’s former role as a criminal defense attorney, they act as if it’s wrong to provide a defense to people accused of a crime—and that if the government levels a charge, it must be right.

Hey, if you haven’t done anything wrong, you have nothing to fear—or something like that. “Like any attorney who has been in any kind of practice, they are going to have to answer for the clients they represented and the arguments they made,” Sen. Josh Hawley (R–Mo.) said in reference to Jackson and other Biden nominees. According to defense lawyers, they should not defend choirboys.

Yet I guarantee if Hawley—known for his fist pump in support of Jan. 6 protestors at the U.S. Capitol—became the target of an overzealous prosecutor who accused him of inciting an insurrection, he’d be happy to have a competent defense attorney to advocate on his behalf. An attorney who defends someone like Hawley shouldn’t get a permanent tarnishment.

These hearings remind me of how difficult it is to have a calm debate about criminal-justice policy—and how tilted our system is on the side of the government. As the Christian Science MonitorJackson would be the nation’s only Supreme Court justice who has served as a public defendant if he is confirmed. Thurgood Marsh was the last judge to have had criminal defense experience.

Marshall was 31 years old when Theodore Roosevelt became president. A study last year by the libertarian Cato Institute found the Trump administration’s judicial appointments tilted in favor of prosecutors over those who represented individuals by a 10-to-one margin. Just 14 percent of appointees in the Obama liberal administration defended individual cases. While most judges are fair and impartial, their background can influence their view of the world.

This brings us to the district attorneys. Many people think their primary role is to get convictions. But that’s not the truth. “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict,” the American Bar Association explains. They must “protect innocent people and convict them of their crimes, take into consideration the rights of witnesses and victims, and observe the Constitution and Legal Rights of everyone.”

In truth, DAs tend to be highly motivated political animals. As the Jackson hearings exemplify, it’s much easier to get confirmed as a judge or elected prosecutor by playing the tough-on-crime card for the obvious reason that the public is fearful of crime—especially now, as long-falling crime rates are headed in the wrong direction. If a DA pledges to justice, balance and equality it is much more likely that they will succeed.

Prosecutors have long been close to police unions. This partly explains why it has been difficult for officers to be held accountable even for the most egregious misconduct or excessive aggression. It’s always been hard for a district attorney not to be supported by these unions. They represent rank and file officers.

That spurred a well-funded movement to begin electing “progressive prosecutors”—mainly in big, liberal cities with large populations of poorer people who have been on the receiving end of our justice system. Unfortunately, the DAs went too far in this direction.

For instance, Los Angeles County District Attorney George Gascón initially banned “prosecutors from seeking the death penalty or life sentences without the possibility of parole, while also severely limiting the way prosecutors could use sentencing enhancements,” the Los Angeles Times reported. He refused to sentence minors as adults.

He changed his course after facing backlash. But by imposing hard-and-fast policies rather than seeking out the just response in each case, Gascón’s approach is the mirror image of a Neanderthal prosecutor who was hard wired to always be tough. Likewise, San Francisco DA Chesa Boudin is accused of refusing to prosecute many serious crimes that are turning his city into a scene from Road Warrior.

Traditional prosecutors were known for overcharging people and ignoring police abuse. They also filled prisons up with inmates who should not be there. These liberal prosecutors, however, have ignored legitimate public concerns about dangerous criminals and pursued an ideological agenda. They forget economist Adam Smith’s quotation, “Mercy to the guilty is cruelty to the innocent.”

Our nation is finally—albeit clumsily—debating justice policy. Even in law-and-order Orange County, the DA’s race is pitting two candidates, incumbent Todd Spitzer and challenger Pete Hardin, who at least claim to seek some middle ground. Their race is no more interesting than those at the Jackson hearings. The two candidates prefer to swap race- or sex-related claims rather than go over the core of the job.

Maybe someday soon, DAs and justices can apply to the justice system the Goldilocks Principle—not too hot, not too cold, but just right.

This column first appeared in The Orange County Register.