Bench Memos

AAG Nominee Debo Adegbile’s Defeat—Part 1

Yesterday, seven Democratic senators joined Republicans to deliver a smashing defeat to President Obama’s nomination of Debo Adegbile to be Assistant Attorney General for DOJ’s Civil Rights Division.

Much of the opposition to Adegbile rested on his role—and the role of the NAACP Legal Defense and Educational Fund under his direction—in representing notorious cop-killer Mumia Abu-Jamal in habeas proceedings. That fact has led Adegbile’s supporters to claim that the defeat of his nomination contravenes, as Attorney General Eric Holder puts it, the “fundamental ideal that every accused individual has a constitutional right to counsel.” But that claim is badly confused:

1. As Senator Pat Toomey and Philadelphia district attorney R. Seth Williams (who, I’ll note, is both a Democrat and an African-American) explained in their recent Wall Street Journal op-ed against Adegbile’s nomination:

Let there be no mistake. Our concern is not based on the fact that Mr. Adegbile acted as an attorney for a criminal defendant. The right to counsel is a fundamental part of America’s criminal justice system, and no lawyer should be faulted for the crimes of his clients.

But it is one thing to provide legal representation and quite another to seize on a case and turn it into a political platform from which to launch an extreme attack on the justice system. When a lawyer chooses that course, it is appropriate to ask whether he should be singled out for a high-level national position in, of all things, law enforcement.

In other words, the principle that a lawyer shouldn’t be faulted for choosing to represent a criminal defendant still allows plenty of room to fault the lawyer for how he carries out that representation. As Toomey and Williams sum it up, “Under Mr. Adegbile’s leadership and through rallies, protests and a media campaign, the Legal Defense Fund actively fanned the racial firestorm.”

2. Contrary to what Holder’s quote would suggest, Abu-Jamal was not merely an “accused individual” at the time that Adegbile chose to represent him. He had been convicted and sentenced to death, and his conviction and sentence had been affirmed on direct appeal. As liberal law professor, and legal ethicist, Steve Lubet has observed, “There’s actually a stronger case here to identify [Adegbile] with the client because there’s more discretion about how to represent in these post-conviction proceedings.” (Lubet’s additional comments strike me as fully compatible with the distinction in point 1.)


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