Rejection of Obama’s DOJ Nominee Means Trouble for Black Defendants

The Senate’s rejection of Debo Adegbile’s nomination to lead the Department of Justice’s Civil Rights Division could have a chilling effect on defendants’ access to representation.

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

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Debo Adegbile’s contentious confirmation hearings and failure to be confirmed as assistant attorney general for civil rights led one senior Democratic Senate aide to say that racial bias has cast a permanent pall over the confirmation process for black Obama nominees. But the treatment Adegbile faced, which the aide called a “smear campaign” and President Obama called “a travesty,” may ultimately have a long-term impact on all who are interested in pursuing careers in federal government, regardless of race.

The reason ultimately used to deny Adegbile the post he sought was his involvement in a controversial pro bono case—that of Mumia Abu-Jamal, convicted of killing a police officer in 1982. History is filled with attorneys who later went on to extraordinary careers in politics and government who donated their time at some point in their careers to represent individuals or institutions that may not have been considered popular. But the message sent by Adegbile’s treatment is that if you represent someone controversial early in your career—even though the Constitution guarantees everyone the right to adequate representation—you may suffer professionally for it later.

This means that poor defendants, many of whom are of color, may now have an even tougher time getting young attorneys—at least those hoping for a future in politics or government—to represent them, for fear of receiving the Adegbile treatment later in their careers.

Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund—where Adegbile worked when he represented Abu-Jamal—told The Root that she does not believe Adegbile’s treatment will deter those who are passionate about pursuing civil rights law full time from continuing to do so. But it may deter those who pursue such cases occasionally on a pro bono basis, and that is troubling for defendants and the justice system. “There are a number of other lawyers who don’t practice in civil rights areas,” she said, “but who care deeply about issues of justice and who want to offer pro bono services in the civil rights arena, and I think [for] many of them—should they have ambition to be judges or to be working in government—this could give them pause.”

Anthony Paduano, a partner at Paduano & Weintraub, a firm specializing in securities litigation, shares Ifill’s concern that Adegbile’s treatment could potentially deter young, talented attorneys. Paduano, who is white, recalled that as a young attorney, he worked on death-penalty cases for the NAACP LDF. Calling it “the first and finest civil rights law firm in the country,” he also said, “The fact that its work, broadly, is being held against a judicial nominee is chilling.”

Later in his career, years after his work for the LDF, Paduano was awarded the Thurgood Marshall Award by the Association of the Bar of the City of New York. The award is named in honor of Thurgood Marshall, the first black U.S. Supreme Court justice and founder of the LDF. But Ifill speculated that Marshall, widely considered a legal legend, would be unable to be confirmed by the current Senate.

Consider the list of cases that Marshall took on that were widely considered controversial at the time. His very first case attempting to integrate a public institution was in the early 1930s, decades before his litigation of Brown v. Board of Education in 1954 would help integration become the American norm. If Sen. Pat Toomey (R-Pa.) calls Adegbile an “extremist” and “radical,” then by the definition of societal norms in the first half of the 20th century, Marshall definitely would have been. So by modern-day standards, America’s highest court would likely have been deprived of a man who is widely considered one of the greatest legal minds our country has known.

And he’s not the only one. Samuel Lebowitz was considered one of the greatest litigators of the 20th century, yet he chose to risk his own life and reputation to represent the Scottsboro Boys, nine black teens falsely accused of rape in 1931. They would not be formally pardoned until 2013, long after their deaths. Which means there were probably plenty who believed that Lebowitz, who was white, was a “radical” for representing them, and yet he was undeterred.

Despite his involvement in the controversial case, Lebowitz would go on to serve as a judge in New York. It’s worth noting that he has been cited as an inspiration for the lead character, attorney Atticus Finch, in the novel To Kill a Mockingbird—and it’s safe to assume that Finch, though one of the greatest heroes of American fiction, would definitely be considered too radical to survive a confirmation process today.

Although some might argue that cases like the Scottsboro Boys are things of the past, recent miscarriages of justice, such as the Central Park Five case, remind us that they are not. Which means that our country will always need dedicated attorneys willing to represent unpopular defendants.