2014: Senate Race Baiting Sinks a Nomination for Civil-Rights Chief

The failure of Debo Adegbile's nomination to head the Justice Department's Civil Rights Division sets a sad precedent for young lawyers.
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Debo Adegbile (center) speaks to reporters in front of the Supreme Court. (Evan Vucci/Associated Press)

By an excruciating bipartisan vote of 52-47, the Senate on Wednesday rejected lawyer Debo Adegbile for a non-life-tenured position as chief of the Justice Department's Civil Rights Division. The vote teaches us at least three disturbing things about politics in America today— beyond the fact that we now have proof that dozens of senators don't believe the head of the nation's civil-rights office should actually care about civil rights.

1. Willie Horton never really went away: We will never know whether and to what extent Wednesday's vote would have been different—and whether the entire debate over his qualifications would have been different—if Adegbile were white and had a name that everyone could easily pronounce. But we know precisely how his opponents in and out of office used his race and his name against him. Nothing better symbolizes the racial component to this story, the Willie Hortonization of this man, more than this image from talk-radio host Michael Graham's website:

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It's not news that this sort of ugly racial identification still occurs 25 years after Willie Horton made his sensational debut onto the national scene. It is not news that the conservative spin machine would turn this complicated legal narrative into headlines like "Senate Democrats and a Cop Killer" over a photo of Adegbile. The news here is that seven meek Democrats, along with so-called "moderate" Republicans like Orrin Hatch and John McCain, failed to stand up to it on Wednesday. In the Senate, in the year 2014, it didn't matter what the American Bar Association or Paul Clement said about him.

2. Anyone you represent can and will be used against you: The Adegbile vote also reveals that it is now acceptable in politics to blame a lawyer for the clients he represented in the past—not just the clients he represented personally, but also those that his organization had long represented before the lawyer joined up. And not just in a hopeless case in which frivolous claims are made, but in a close case in which a conservative federal appeals court ultimately endorses the lawyer's views. 

The most significant opposition to Adegbile's nomination came in response to his participation in the NAACP Legal Defense Fund's representation of Mumia Abu-Jamal, the man convicted of killing a Philadelphia police officer in 1981. Adegbile did not represent the defendant at trial. He did not declare his client to be innocent. Instead, he worked on a series of briefs supporting an appeal that made a legitimate legal argument. He did, in other words, precisely what he was expected to do on behalf of an organization dedicated to civil rights. For this he was deemed unfit to run the Civil Rights Division.

Yet not one of the senators who decried this connection to the NAACP LDF, an organization with a long, rich history of working against the racial disparities in the nation's capital-punishment regime, decried the similar connection between John Roberts and John Ferguson, a mentally ill prisoner executed last year. Long before he became chief justice of the United States, Roberts worked to help Ferguson, a serial killer, yet we barely about it during either of Roberts's two federal judicial-confirmation hearings.

The punchline? Roberts's law firm failed to get much relief for Ferguson. The Legal Defense Fund, on the other hand, generated a unanimous ruling from the Third Circuit in favor of Abu-Jamal. So a lawyer who upheld the Constitution and whose work was acknowledged as doing so by the federal courts was nonetheless shunned by the Senate.

Remember this the next time Hatch, lion of the Judiciary Committee, unleashes one of his epic riffs about the majesty of the Constitution and the rule of law and the need to put aside "political expediency" in the name of neutral principles. Today's vote will chill the work of every public-minded attorney who thinks she may one day want to become a public servant. That's a tragedy that transcends the Adegbile nomination.

3. When all else fails, pretend business will be overrun by felons: When Adegbile's critics became worried late in the game that the racially tinged attacks upon his past legal work might not gain enough traction in the Senate they ginned up a brilliantly cynical approach: When in doubt, scare the business community by warning them that a black federal nominee wants to force them to hire murderers and rapists.  You can see the results here at the Washington Examiner in a piece that cites one long-time administration foe after another. 

So added to the list of the nominee's sins was the tepid support he offered at his confirmation hearing for existing federal guidelines (at the Equal Employment Opportunity Commission, no less, and not at Justice) that urge businesses not to reject job applicants simply because they may have criminal backgrounds. It's a legitimate issue to discuss—especially with the "Ban the Box" movement—but it bears no resemblance to headlines like, "Should government force businesses to hire felons? Obama nominee Debo Adegbile says yes."

Alas, what none of these hit pieces seemed to mention is that the EEOC policy to which Adegbile was linked—which he did not promise to copy at the Justice Department, and which no court (that I could find) has yet ruled unlawful—is similar to one that Clarence Thomas endorsed during his stint at the EEOC in 1987. Just as I wonder what Chief Justice Roberts thinks of the way Adegbile was slandered for representing a convicted murderer, I wonder what Justice Thomas thinks of the way Adegbile was linked to this EEOC business.

* * *

So now the Obama Administration will nominate another decent, qualified lawyer willing to take a dramatic pay cut to run the Civil Rights Division. That person will try to do what Adegbile would have done to protect the rights of dispossessed and marginalized and underserved citizens—the right to vote, for example, or to be free from discrimination—who are not otherwise adequately protected by our nation's laws and lawmakers.

But the irony is dense. The Senate's rejection of Adegbile, in the fashion in which it occurred, demonstrates how much work is left to do on civil rights in America. In a month, Debo Adegbile went from being a man poised to fight against America's deep racial divide to being a victim of that divide. There have been worse days in the recent history of the Senate, but few that I can remember.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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