The History of Attacks by the Right on Civil Rights Defenders

It’s true that some U.S senators voted to kill the confirmation of Debo Adegbile as assistant attorney general for civil rights because they were concerned about the representation provided by Adegbile as a lawyer with the NAACP Legal Defense & Educational Fund to a man convicted of killing a Philadelphia police officer. Even though LDF’s representation came 30 years after the trial of the Mumia Abu-Jamal, and even though the LDF’s argument that the jury that sentenced Abu-Jamal to death had been instructed improperly was ultimately upheld by the U.S. Court of Appeals—twice—some senators bowed to the pressure, demanding the rejection of Adegbile. But the Abu-Jamal case is not the real reason Adegbile’s vote failed. Instead, this week’s vote represents another effort in a long line of efforts to discredit civil rights law and those who have committed their professional lives to its enforcement.

Opposition to housing and employment discrimination laws, voting rights and affirmative action has been at the core of resistance to the confirmation of candidates with a demonstrated commitment to the robust and vigorous enforcement of laws protecting against racial discrimination for decades. Thus it is no surprise that the most vicious resistance to nominees selected to lead the division of the Justice Department charged with enforcing civil rights law is reserved for lawyers from the organization that is largely responsible for the creation of modern civil rights law. The LDF litigated the Brown v. Board of Education case, and for more than 50 years has been regarded as the nation’s premier civil rights law organization. 

Lawyers from the LDF have been intimately involved in setting the standards for civil rights law practice and for aggressively pushing for legal frameworks vilified on the right. These include the concepts of vote dilution, disparate impact, affirmative action and a host of criminal justice protections. These standards are not fringe propositions offered by a civil rights group. They are the standards currently enshrined in the law—the very laws enforced by the civil rights division.

Adegbile is not the first LDF lawyer to be the subject of a full-throated attack by the right after being nominated to head the civil rights division. President Clinton nominated a succession of LDF lawyers to serve in the top civil rights post. Each was subjected to a targeted opposition campaign based on their support for antidiscrimination law. In 1993, it was Lani Guinier, at that time recognized as a leading force in modern voting rights litigation and a tenured law professor at Yale Law School, who was subject to a scorched-earth campaign by right-wing forces when she was nominated to serve as assistant attorney general for civil rights. 

While at LDF, she led the field of voting-rights litigation, shaping the standards now enshrined in law for the litigation of cases under Section 2 of the Voting Rights Act. When she was nominated by President Clinton, forces on the right launched a virulent and coarse attack on her scholarly writings. They accused professor Guinier of being a “quota queen” even though her scholarship—which was published in some of the most selected and highly regarded law journals—never advocated the use of quotas. After weeks of ugly attacks, President Clinton withdrew professor Guinier’s nomination.

After the position remained vacant for months, President Clinton nominated Deval Patrick, another lawyer who briefly worked at the LDF, as the head of the civil rights division after the Guinier travesty. Although he was finally confirmed, Patrick was vilified for supporting “racial preferences” and for being a “radical.” Patrick is now the governor of Massachusetts.

In 1997 Bill Lan Lee, the former director of LDF’s now-closed Los Angeles office, was nominated to the same position. His illustrious career as a civil rights litigator and his moving story as the son of Chinese immigrants garnered widespread support. But then he, too, was attacked for LDF’s support of affirmative action and for his objection to the use of the term “forced busing.” He was finally given a recess appointment when his nomination was unable to make it out of the Senate Judiciary Committee.

Without question the Abu-Jamal case touched a nerve with some senators, including a handful of Democrats. But the larger critique of Adegbile focused, as in the cases of Guinier and Lee, on his civil rights bona fides. Sen. Grassley and others were clear that they regarded Adegbile’s stance on voter-ID laws, disparate impact and the Second Amendment as independent justifications to reject his confirmation.

In other words, the confirmation process for the nation’s top civil rights position is just another battlefield in the ongoing challenge to the legitimacy of our nation’s civil rights laws.

By any standard, Adegbile’s record as a civil rights lawyer, his excellent reputation and his integrity make him superbly suited to the job for which he was nominated. LDF’s successful representation on appeal of a constitutional claim in Mumia Abu-Jamal’s case is consistent with the standards of our legal profession. Chief Justice John Roberts when he was a law partner donated pro bono hours to the representation of a mass murderer in Florida.

The real issue is civil rights law itself and the organization most identified with that law’s development and advancement. It is doubtful that Thurgood Marshall, who also faced great resistance at his confirmation hearings for the federal circuit and Supreme Court, could not be confirmed for the top civil rights post today. Our nation’s civil rights laws are here to stay. It’s time to end the practice of using confirmation votes to fight the war on civil rights.

Sherrilyn A. Ifill is the president and director-counsel of the NAACP Legal Defense and Educational Fund. LDF represented black voters in Shelby County, Ala., in the case decided by the Supreme Court. Follow her on Twitter.

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