It’s not just Ted Cruz. This afternoon, Tom Cotton said the following in explaining why he intends to vote against Ketanji Brown Jackson:
You know the last Justice Jackson left the Supreme Court to go to Nuremberg and prosecute the case against the Nazis. This Judge Jackson might have gone there to defend them.
You know what? If she had done that, it would have been fine. In explaining why he participated in the Nuremberg Trials — a decision that prompted private criticism from the Chief Justice of the Supreme Court, Harlan Fiske Stone, who considered the ex post facto exercise a “high-grade lynching party” — Judge Robert H. Jackson made it clear that if the Americans “want to shoot Germans as a matter of policy, let it be done as such, but don’t hide the deed behind a court.”
What did that mean in practice? It meant that if the United States was to host a trial, instead of a firing squad, those who were put in the dock would receive a solid defense. It meant that Judge Robert Jackson was confident enough that the evidence would be allowed to prevail that he opposed stacking the deck. It meant that the court was not supposed to say, “they’re Nazis, who cares?” To lambast Judge Ketanji Brown Jackson because she claimed that the accused terrorists she represented were “totally innocent” — yes, even if she was simply copying and pasting objections — is to make a mockery of the rule of law. Perhaps aware of this, Cotton made sure to acknowledge that “it’s true that you shouldn’t judge a lawyer for being willing to take on an unpopular case.” But that’s what he did, over and over and over again, and no amount of throat-clearing could hide it.