Guilt by Association

Senate blocks Obama’s pick to head the civil rights division because he’s fought for civil rights.

Debo Adegbile
Debo Adegbile testifies during his confirmation hearing before the Senate Judiciary Committee on Jan. 8, 2014.

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.

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 acop-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.