Guilt by Association
Senate blocks Obama’s pick to head the civil rights division because he’s fought for civil rights.
Photo by Alex Wong/Getty Images
Debo Adegbile was selected by
President Obama to be assistant attorney general for the Justice
Department’s Civil Rights Division. The Senate, aided and abetted by
seven Democratic senators, just killed his nomination. Why? Adegbile worked at the NAACP’s Legal Defense Fund and in that capacity, he helped out on a brief seeking to overturn the 1982 death sentence for Mumia Abu-Jamal, convicted in the killing of Philadelphia police officer Daniel Faulkner.
Dahlia Lithwick
Adegbile’s cardinal sin?
He worked on a Legal Defense Fund appeal (that the NAACP had already
been involved in before he took the position) contending that there was
racial discrimination in Abu-Jamal’s trial and then, later, on a brief
arguing that the jury instructions in Abu-Jamal’s trial were
constitutionally improper. This was a contention that prevailed in a federal appeals court. Later the LDF represented Abu-Jamal in a Supreme Court case when prosecutors sought to reinstate his death sentence.
To be clear, then: Adegbile was not himself a cop-killer. He didn’t
help a cop-killer get off and roam free with false claims of innocence.
What he did do—which fits pretty readily within the historic mandate of the NAACP’s Legal Defense Fund—was
to help ensure that the American criminal justice system, and
especially the death penalty, is administered fairly and
constitutionally. As a representative of an organization
that is institutionally dedicated to ensuring that justice is
administered fairly, he fought for fairness and (totally unfair!) judges
agreed that unfairness occurred.
Once upon a time in America this was called advocating for justice.
But in today’s America, it’s deemed a miscarriage of justice. And so the
fact that Adegbile has long been one of the most skilled and principled
civil rights attorneys in the country is cast by Senate Republicans as a
kind of catastrophic public scam. (Disclosure: I have met Adegbile several times and have sat on several panels with him.) The right-wing smear squad raced to label Adegbile a "cop-killer’s coddler," or a “pro-criminal cop-killer.”
Not unrelatedly, his other sin? Adegbile argued the Voting Rights cases
at the Supreme Court, the ones making the radical argument that racial
bias still exists in some voting schemes. I guess legal advocacy is just
always wrong if it’s done by the NAACP.
Even some Senate Democrats, like Bob Casey (D-Pa.),
found that they simply could not in good conscience vote for Adegbile’s
confirmation. Casey claimed that he was voting against this respected
civil rights litigator out of solicitude for the Fraternal Order of
Police and the widow of Daniel Faulkner. And so today, Adegbile failed
to amass the 51 votes needed for confirmation. And in a neat trick of
political advocacy, the Senate Republicans who colluded to derail his
nomination accused Adegbile of committing political advocacy.
Jeff Sessions (R-Ala.) proclaimed: “This was not simply a case of a
lawyer representing an unpopular client. … It was a political cause.
There was really no question about it.” Minority Leader Mitch McConnell accused Adegbile
of “seeking to glorify an unrepentant cop-killer.” Chuck Grassley
(R-Iowa) put it this way: “This was a cause in search of a legal
justification.” And Sen. Ted Cruz (R-Texas) slammed LDF for “lionizing”
convicted cop-killers: “We all should agree that violent criminals
should be punished. And we all should agree that those who go out of
their way to advocate for, to celebrate, to lionize convicted cop
killers are not suitable for major leadership roles at the U.S.
Department of Justice.”
And so the claim that Abu-Jamal deserved to be spared the death
penalty because of an injustice perpetrated in his trial is converted to
a liberal party trick, a scam that conflates rooting out legal
injustice with lionizing and celebrating killing. Civil rights advocacy
is cast as an act of grotesque political and legal fraud. And the notion
that the head of the Justice Department’s Civil Rights Division should
have ever fought for civil rights has now become disqualifying.
It is not a secret that the Civil Rights Division in the Bush years reflected the deeply held conviction that voting rights and anti-discrimination law
were no longer American problems or priorities. Indeed the Bush Justice
Department’s priorities perfectly presaged the reality of today’s civil
rights debate: The only real discrimination in America is directed toward religion
and the only legitimate civil rights advocacy vindicates religious
liberties. Everyone else is a whiner and a baby. Women, minorities,
blacks, the disabled, the elderly, immigrants, the poor, and death row
inmates don’t need representation anymore. At Talking Points Memo, Brian Beutler reminds us that Jeff Sessions once called the NAACP ”communist-inspired”
and complained that it had “forced civil rights down the throats of
people.” Advocacy groups not approved by the religious right are all—in
this view—basically just a bunch of liberal tricksters. Ruth Bader Ginsburg recently commented
that she would likely be unconfirmable today based on the new standard
that holds that civil rights advocacy work is disqualifying for legal
nominees. Her work on behalf of women’s equality would now also be
dismissed as “a political cause” and “political advocacy.” A tawdry
cause in search of legal justification.
But the campaign to discredit Adegbile isn’t just a referendum on
what discrimination means today in America and how we’re permitted to
correct it. It’s also a referendum on the most basic premise of any
functioning legal system: that even the guilty deserve representation
and that the justice system cannot operate if we don’t work to correct
systemic injustice. As the president of the American Bar Association,
James R. Silkenat, was forced to explain to the Senate Judiciary
Committee, “a fundamental tenet of our justice system and our
Constitution is that anyone who faces loss of liberty has a right to
legal counsel. Lawyers have an ethical obligation to uphold that
principle and provide zealous representation to people who otherwise
would stand alone against the power and resources of the government—even
to those accused or convicted of terrible crimes.”
But as of today, you are as guilty as your guiltiest client, and your
representation of that client—especially if it is both zealous and
successful—is now disqualifying as well. Cop-killers deserve no lawyers
and their lawyers deserve no role in government service. It’s not hard
to imagine the scorching Fox News headlines, under the new standards set
forth by the Judiciary Committee today: “John Adams Frees Vicious Patriot-Killer in Boston Massacre.” “John Roberts Unsuccessfully Defends Serial Killer in Florida!” “Anarchist-Loving Felix Frankfurter Advocates for Sacco and Vanzetti!” Clarence Darrow! Lover of Killers, Monkeys, and Commies; Disgrace to Legal Profession!.” “Murderer-Coddler John Paul Stevens disqualified from Supreme Court at 80!”
Remember a few years ago there was a brief and disgraceful campaign to boycott law firms engaged in pro bono representation of Guantanamo detainees? Remember the bipartisan outcry from lawyers across the spectrum
who understood what it means to defend unpopular defendants and ideas,
even when—especially when—they are guilty and unpopular? That notion
died today in the U.S. Senate. Forget the presumption of innocence for
criminals. It doesn’t even exist for their lawyers.
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