Torches and Pitchforks 52 ? Rule of Law 47 | Raucous Caucus | Tom Cushing | |

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By Tom Cushing

Torches and Pitchforks 52 ? Rule of Law 47

Uploaded: Mar 6, 2014

By what passes for standards in today's Senate, Thurgood Marshall would be a pariah. Born into modest circumstances and barred by his race from admission to the U. Maryland Law School that now bears his name, Marshall rose to lead the NAACP Legal Defense Fund, argue the then-controversial Brown v. Board of Education case and many others, get confirmed to the US Court of Appeals over serious and sustained opposition, and, six years later, to the US Supreme Court. Debo Patrick Adegbile shares much of that path ? except for the confirmation part.

This week, the Senate denied Adegbile an appointment to head the Justice Department's Civil Rights Division. The basis? He's good at his job. The same NAACP Legal Defense Fund under his leadership filed an amicus brief and later represented Mumia Abu-Jamal, a convicted Philadelphia cop-killer sentenced to death for his crime.

The defense argued that the jury instructions and verdict sheet were flawed, such that the jury believed it was precluded from considering any mitigating circumstances in the death penalty phase of his trial. They succeeded, before the US District Court, and twice before the Court of Appeals. Abu-Jamal's sentence was commuted to life imprisonment, without prospect of parole. For the record, the NAACP also backed maintaining the Voting Rights Act in a case (Shelby County) Mr. Adegbile argued before the Supreme Court, and advocated for continued race-conscious college admissions (Fisher v. U. Texas).

There may be little factual doubt that Abu-Jamal, who is black, committed the crime. There was and is doubt, however, that he received a Constitutionally fair trial. Adegbile's team did what defense lawyers are supposed to do, and they succeeded. And for that, he's been denied the opportunity for further service to his chosen cause at DOJ.

Angered by the unpopular Abu-Jamal case outcome, the Fraternal Order of Police (FOP) mounted a furious campaign to deny his confirmation. In an intemperate letter to the President opposing the nomination, they wrote:

"We are aware of the tried-and-true shield that activists of Adegbile's ilk are wont to hide behind -- that everyone is entitled to a defense; but surely you would agree that a defense should not be based on falsely disparaging and savaging the good name of a lifeless police officer."

The letter went on to say that the FOP thought they should have been consulted on the appointment ? one that nearly by-definition brings the appointee's division of the DOJ into conflict with the actions of various local authorities.

Now, in a saner environment ? say, the one that prevailed in the 1960s when Marshall was being vetted, the FOP's fulminations could have been dismissed as those of a blood-lusty sore loser. Neither the convict's guilt, nor Faulkner's character, after all, were directly in-issue, Abu-Jamal will never again walk the streets of Philadelphia, and the legal system is now marginally fairer to defendants. Not so this year, however, as seven Dems crossed the aisle to join a unanimous GOP opposition.

What standard is supposed to guide Senators in their "Advice and Consent" confirmation deliberations? The clubby traditions of the Senate do not provide a succinct answer, nor must the Senators defend their votes in any way. Some have argued for a co-equal role of the Senate on the merits of the picks, but the appointment power is contained in the Constitutional Article II that defines Executive branch functions and powers, thus strongly implying Presidential initiative and primacy.

I would also argue (and have, elsewhere in these epistles) that there's a huge difference between Executive and Judicial Branch appointments, the former being the Prez's draft choices to serve on his team, and report to him for the duration of his limited term(s). The inquiry there ought to go only to qualifications and general integrity. By contrast, judicial appointments interact directly with the governed, and many are life sentences, although parole is possible. Accordingly, a broader inquiry may be made, although canny appointees have learned how to foil those processes by clamming-up.

Nobody here was arguing that Adegbile, an NYU law grad who came-up from single-parent poverty, was unqualified. His career record demonstrates high achievement in two the country's greatest mega-law firms (Morrison Foerster, and Paul Weiss) -- indeed, it was the very quality of his team's advocacy that doomed his appointment. The GOP solons voted as a bloc in opposition, as expected and required by their leadership. The 7 Dems, however, had ulterior motivations that had little to do with the candidate's capabilities.

Sen. Manchin (WVA) called it a "vote of conscience" without elaboration. Sen. Pryor (AR) and others face tough re-election bids in states where Mr. Obama is unpopular. And Sen. Chris Coons of my old Delaware stomping grounds said in a statement:

"The vote I cast today was one of the most difficult I have taken since joining the Senate, but I believe it to be right for the people I represent. ... The decades-long public campaign by others to elevate a heinous, cold-blooded killer to the status of a political prisoner and folk hero has caused tremendous pain to the widow of Philadelphia police officer Daniel Faulkner and shown great disrespect for law enforcement officers and families throughout our region. These factors have led me to cast a vote todaythat is more about listening to and respecting their concerns than about the innate qualifications of this nominee."

Sure, Senator ? except as a lawyer, you know better, and comforting the widow, thirty years after the fact, is not your job.

In our adversarial legal system, it is axiomatic that both sides deserve the best advocacy they can muster ? especially in capital punishment cases where the might and majesty of the government are arrayed against an individual defendant. It falls to lawyers to provide that defense, whether to a counter-culture minority journalist like Abu-Jamal, recent immigrants (Sacco & Vanzetti), a biology teacher in fundamentalist Tennessee (Scopes), Dr. Sam Shepherd or "the American Taliban." As expressed by ABA President James Silkenat in a recent letter to the Senate Judiciary Committee:

"I was alarmed to learn that there is some opposition to Mr. Adegbile's nomination based solely on his efforts to protect the fundamental rights of an unpopular client while working at the Legal Defense Fund. His work, like the work of ABA members who provide thousands of hours of pro bono legal services every year, is consistent with the finest tradition of this country's legal profession and should be commended, not condemned."

But it won't be celebrated this year, grace of Manchin's conscience, Pryor's ambition and Coons' mistaking his duties to be more to a murdered man's widow, than to the nominee's confirmation process or to the country the Senator was elected to serve. Apparently, unlike Mr. Justice Marshall, Adegbile was born in the wrong decade.


Speaking of the American Taliban, he was defended by Morrison & Foerster partner Jim Brosnahan, an impeccable advocate with utterly nothing to prove, or to gain. He acted out of duty to the legal system he serves, and both he and his firm also came under hysterical attack as a consequence. He nearly had to leave "MoFo" under that pressure, and I have little doubt that he would have done so had it really come to that ? his Irish was up.

I admire Mr. Brosnahan a great deal, which does not make me a member of any exclusive club, but it does impel me to link this folksy 15-minute talk he gave. It's a kind of romantic reminiscence bred with a TED talk, with undertones of Garrison Keillor. It gives a window into the tickings of a very good man, and is well-worth the time invested in its hearing. Here he is, live, at the Verdi Club on Valentine's Day. Enjoy!