Criminal Justice

Ted Cruz Hates Due Process

By smearing public defenders, the Texas senator shows what he thinks of constitutional rights.


During his Fox News appearance on Sunday, Sen. Ted Cruz (R–Texas) said that Supreme Court nominee Ketanji Brown Jackson and other public defenders root for criminals because "their heart is with the murderers."

"She came out of law school, and she clerked for Justice Breyer on the Supreme Court. And she became a federal public defender," Cruz said. "And you and I have both known public defenders. People go and do that because their heart is with criminal defendants. Their heart is with the murderers, the criminals, and that that's who they're rooting for. A lot of the same reasons people go and become prosecutors—because they want to lock up bad guys—public defenders often have a natural inclination in the direction of the criminal. And I gotta say that inclination was not just while she was a public defender, but she carried it onto the bench."

Our adversarial system of justice depends on defense attorneys making the government prove its case and meet a high burden of evidence. The Sixth Amendment guarantees the right to counsel to make sure everyone—the unpopular, the poor, and yes, even the guilty—has the benefit of a dogged defense against the government's power to relieve them of their liberty and property.

Supposed conservatives like Cruz should welcome this skepticism of government power, but he and others, like Sens. Tom Cotton (R–Ark.), Lindsey Graham (R–S.C.), and Josh Hawley (R–Mo.), used Jackson's confirmation hearing to demagogue and grandstand about the horror of her representing Guantanamo Bay detainees.

As Charles Cooke notes over at National Review, using Cruz's logic, we could also conclude that Cruz has a natural inclination toward banning dildos, since he argued in favor of Texas' ban on sales of sex toys when he was the state solicitor general.

Cruz would argue, and has argued, that he was merely doing his job, which was to defend the laws passed by the Texas Legislature. State attorney general offices often trot out this line when it's convenient. Vice President Kamala Harris, despite saying she personally opposes the death penalty, defended California's execution protocols as state attorney general, citing her duty to defend her client. 

Whether state attorney generals are ethically bound to defend what they consider unjust or unconstitutional laws in the same way a defense attorney must zealously represent their client, though, is a trickier and largely unresolved question. For example, Harris somehow found the political courage to shirk her supposed duty when she refused to defend California's Prop 8, which banned same-sex marriage. "It's well within the authority vested in me as the elected attorney general to use the discretion of my office to make decisions about how we will use our resources and what issue we will weigh in on or not," Harris said.

Public defenders don't have the luxury of choosing not to defend a client when it's a political liability. That's what makes them an indispensable part of our court system.

Ted Cruz went to an Ivy League law school and clerked for a Supreme Court justice. He knows all this, but he's an unserious person using his perch in the U.S. Senate to get on the TV and spout unserious arguments. It's an embarrassment.