I wrote yesterday about the grim lessons of the Senate's vote on Debo Adegbile, the Civil Rights Division nominee who was rejected 47-52, largely because as a lawyer for the NAACP Legal Defense Fund he once contributed to a series of appellate briefs on behalf of the convicted murder Mumia Abu-Jamal. To 52 members of the Senate it didn't matter that the Third U.S. Circuit Court of Appeals agreed with those arguments. What mattered was that Adegbile had represented a "cop killer" and thus didn't deserve to hold a position in the Justice Department.
One of the worst parts of this story is how easily it will transcend this vote and this candidate. When the Senate starts judging nominees based on their past representation of certain clients, when attorneys who want to become public servants are held responsible for the conduct of those clients, and when guilt by association is raised to the level of public policy, it will have a chilling effect on the legal profession. Fearful of being "Debo-ized," lawyers will balk when asked to take on particularly unpopular cases.
Late Wednesday, Senator Tom Harkin, an Iowa Democrat, took to the floor of the chamber to make this very point—and to do so in a way that I think is historic. Every lawyer, law student, law professor, and everyone who cares about the rule of law and the right to counsel, ought to watch this video:
John Roberts, the chief justice of the United States, deserves praise for his long-ago representation of serial killer John Ferguson. It is what lawyers do. Obviously, it's not the chief justice's fault that he was not questioned at length about it during either of his confirmation hearings. Such questioning, as Harkin said, would have been as inappropriate as it was in Adegbile's case. But it will be the chief justice's fault if he remains silent now that the Adegbile vote has been taken and the extent of the problem has been made clear.
The chief justice should issue a statement as soon as he can about his role in the Ferguson case. He should explain why every criminal defendant deserves a lawyer—it's a constitutional right, after all—and why lawyers have professional obligations to advocate on behalf of even the most despised members of our society. He should reaffirm the notion that rule of law cannot succeed if attorneys are judged guilty by association with their clients. And he should urge young lawyers not to be afraid to work on unpopular cases.
Given the wide range in which the justices roam in their public speeches and writing beyond the Supreme Court, the chief justice could easily issue such a statement within the boundaries of his own professional obligations. In doing so, he could both educate the American people and elevate the debate over what has just happened, and why, and what it means for the legal profession. This is a moment for the type of leadership that only the Supreme Court can offer. And only the chief justice can speak for the Court.