Sunday, March 9, 2014

Senate's Shameful Vote on Civil Rights Nominee

       John Adams expected to be criticized when he decided to represent the British soldiers accused of murder for the killings of five colonists in the Boston Massacre in 1770. But he took on their case as defense lawyer because he thought it important as a matter of justice. And he won the acquittals of all of the defendants except for two who were convicted only of the lesser offense of manslaughter.
       Three months after the end of the trial, Adams, then 35, was elected to Massachusetts’ colonial legislature, starting a career that eventually took him to the U.S. presidency. And reflecting on the Boston Massacre trial after his presidency, he described his role it as “one of the most gallant, generous, manly and disinterested Actions of my whole Life.”
       In present-day United States, a lawyer who represented a criminal defendant in a high-profile case would have no chance whatsoever later to be elected president. Indeed, to judge from last week’s shameful vote in the U.S. Senate, a lawyer with even tangential involvement in representing a high-profile defendant cannot even win confirmation to a subcabinet post in the Justice Department.
       Debo Adegbile, President Obama’s nominee to head the Justice Department’s civil rights division, went down to defeat in the Senate last week [March 5] at the hands of a solid Republican bloc and seven cowardly Democrats. The reason: Adegbile’s relatively minimal role in defending the rights of the convicted killer of a Philadelphia policeman.
      The real loser was not Adegbile, however, but a basic principle of American justice. Lawyers must be willing to take on unpopular clients if justice is to be served — and ought to be rewarded, not punished, as long as they stay within the bounds of ethical legal advocacy.
       On paper, Adegbile clearly had the qualifications for the position, including 12 years with the NAACP Legal Defense Fund, the venerable civil rights organization once headed by Thurgood Marshall. Adegbile joined the Legal Defense Fund in 2001, after seven years as an associate with New York City firms, and eventually rose to become acting president in 2012.
       Adegbile believed in and advocated any number of controversial legal positions in his tenure. He was a fervent advocate of race-based admissions policies to ensure diversity in higher education. He was also a strong defender of the federal Voting Rights Act, arguing unsuccessfully to uphold the act as written before the U.S. Supreme Court two years ago.
       Those positions earned Adegbile critics and opponents, but they were not what led to the Senate’s 47-52 vote that killed his nomination. Instead, Adegbile fell victim to his role in LDF’s work in behalf of a high-profile — many would say notorious — death row inmate: Mumia Abu-Jamal. Abu-Jamal was convicted of murder and sentenced to death in 1982 for the fatal shooting of Philadelphia police officer Daniel Faulkner after Faulkner had stopped Abu-Jamal’s younger brother for a traffic citation.
       In 30 years on death row, Abu-Jamal became a celebrated author and commentator, sharply critical of prison conditions and the criminal justice system. He also protested his innocence and challenged the conviction and sentence on various constitutional grounds. Eventually, the federal appeals court in Philadelphia threw out the death sentence in 2011 because of improper jury instructions that wrongly limited jurors’ discretion to consider mitigating circumstances; rather than seek a new death penalty hearing, prosecutors accepted the decision to reduce Abu-Jamal’s sentence to life imprisonment.
       The Legal Defense Fund had begun working on Abu-Jamal before Adegbile joined the organization. Adegbile’s sole personal involvement with the case was to contribute to an amicus brief at the Supreme Court on claims of racial discrimination in jury selection. The court in 2010 rejected those arguments, but sent the jury instruction issue back to the federal appeals court, where LDF directly represented Abu-Jamal.
       Adegbile’s limited role in the case made him persona non grata to the Fraternal Order of Police and other law enforcement groups. Adegbile defended his role in his testimony before the Senate Judiciary Committee, but in the hyperpartisan atmosphere on Capitol Hill Republicans predictably joined in lock-step opposition to the nomination. With a Democratic majority, however, the committee on Feb. 6 sent the nomination to the floor on a 10-8 party-line vote.
      With the Senate’s new rules allowing a simple majority to end a filibuster, Adegbile seemed assured of confirmation. On the floor, however, seven Democrats joined Republicans in blocking an up-or-down vote. Two of the seven are from blue states: Pennsylvania’s Bob Casey and Delaware’s Chris Coons. Five others represent red states: Joe Donnolly (Ind.), Heidi Heitkamp (N.D.), Joe Manchin (W.Va.), Mark Pryor (Ark.), and John Walsh (Mont.).
       Casey, the first of the Democrats to oppose the nomination, evidently capitulated to the strong feelings in Pennsylvania about Abu-Jamal’s case, which he said had left “open wounds” in the state. Coons, who voted as a Judiciary Committee member to send the nomination to the floor, explained his decision to turn on the nomination in a tortuous statement that acknowledged Adegbile’s qualifications but worried about the “visceral opposition” he would face from law enforcement if confirmed.
       For lawyers with thoughts of public service, the lesson is clear: Steer clear of cases that can be used against you later on. Gallant service to justice may have worked for John Adams, but not today.

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