Back in November 2013, the U.S. Senate passed the so-called “nuclear option,” eliminating the threat of squelching the president’s executive branch and judicial nominations by filibuster. Under the new rules, a nominee only needs 51 votes to break a potential filibuster, instead of the 60 votes previously needed. Democratic senators lubricated nominees’ paths to confirmation. Finally, we were told, a cantankerous Republican minority could no longer block all the well-qualified, uncontroversial nominees that the president had waiting in the queue.

Nevertheless, yesterday the Senate voted to reject President Obama’s nomination of Debo Adegbile to head the Department of Justice’s Civil Rights Division. The 47 – 52 vote failed to reach the 51 votes necessary to achieve cloture and advance the nomination. Seven Democratic senators — Senators Bob Casey of Pennsylvania, Joe Manchin of West Virginia, Mark Pryor of Arkansas, Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana, John Walsh of Montana and Chris Coons of Delaware — opposed the nominee. Adegbile is perhaps best known for his work leading litigation for the NAACP Legal Defense and Education Fund, often known simply as LDF.

No Republicans voted against their party line. Perhaps some of them opposed his nomination on principle; perhaps some reflexively opposed an Obama nominee. The Democrats who voted against Adegbile, however, took a clear and conscious against him. Effectively, Democrats killed Adegbile’s nomination.

Why? Despite his other professional accomplishments, Adegbile’s problems in the Senate can be summed up in a word: Mumia. In six words: convicted and controversial cop-killer Mumia Abu-Jamal . . . .

 

Under Debo Adegbile’s leadership, LDF represented Mumia Abu-Jamal (formerly known as Wesley Cook), the man convicted in 1982 for the first-degree murder of a Philadelphia police officer. Abu-Jamal was a Black Panther and supporter of the MOVE organization, a black liberation group that occupied parts of Philadelphia at the time of the murder and advocated violence against police. A jury found that Abu-Jamal shot Officer Daniel Faulkner multiple times at close range after Faulkner stopped Abu-Jamal’s brother for driving the wrong way down a one-way street. Three witnesses testified to the identity of the shooter. Abu-Jamal was convicted and sentenced to death. From prison, Mumia Abu-Jamal styled himself as a political prisoner and victim of a racist and corrupt criminal justice system. His case became a cause celebre of the radical left. With the help of LDF, his sentence was eventually commuted to life in prison without parole.

Some observers will quickly blame the Senate’s rejection of Debo Adegbile on racial bias, though that is a simplistic take that ignores other reasons why senators would be loath to align themselves with a defender of Abu-Jamal. Senator Pat Toomey (R – Pennsylvania) and R. Seth Williams, the District Attorney of Philadelphia, co-authored a Wall Street Journal opinion piece called “The Justice Nominee and The Cop Killer: Debo Adegbile’s disturbing support for Mumia Abu-Jamal should disqualify him.” Williams is an African-American Democrat. He’s not a guy you’d expect to oppose a DOJ nominee simply because the nominee is black. (For those inclined to keep score of such things: that would be a black guy opposing a black guy who was nominated by another black guy.) But Williams is a guy who gets elected by Philadelphia voters, many of whom still get incensed at the mere mention of Mumia Abu-Jamal. As District Attorney, Williams is also pretty cozy with Philly police in particular. I suspect he’d like to keep it that way.

For the law enforcement community, Mumia Abu-Jamal is not just a convicted murderer. He is the iconic cop-killer. The legal team that assisted Abu-Jamal in eventually getting his death sentence commuted? Not popular.

The National Fraternal Order of Police, at least five other law enforcement organizations, and Maureen Faulkner, the widow of Mumia Abu-Jamal’s victim, lobbied hard against Adegbile’s nomination. The Democrats who voted against him this week seemed to listen to the cops. Police officers organizations, unlike most other labor unions (which traditionally vote heavily Democrat), comprise a valuable and fickle constituency for many elected officials. Cops are purple voters. While Democratic senators from deep-blue states may have not felt pressured to keep the police happy with their vote on Adegbile, Dems from battleground states couldn’t risk alienating moderate voters. You know, the kind of voters who might not have “Free Mumia” posters on their walls.

Debo Adegbile

Most attorneys understand that providing every criminal defendant a vigorous defense is a part of the profession. It is, indeed, a noble part of the profession. Holding counsel responsible for the conduct or character of their clients is unacceptable. Rejecting the nomination of all lawyers who have defended a criminal is unreasonable.

Let’s be reasonable about this too, though: LDF is an advocacy group. They do not take on the cases of just any old criminal defendant who asks for assistance. They select cases for their political pitch and potential for social impact.

This in itself is okay, even good. There’s a laudable tradition of social activism through strategic litigation by groups on both the right and the left. If you choose to make a career out of representing folks who you know are political flashpoints, though, don’t expect that politicians and the public they represent won’t let you catch fire too. That’s a price of social activism.

If a Republican president nominated an attorney who spent her career litigating cases furthering her pro-life views, perhaps including defending someone convicted of murdering an abortion doctor, would we not expect some blow-back? Would we be shocked if all Democrats and a few centrist Republicans voted against her nomination? If there was a public outcry?

The Senate’s bipartisan rejection of Debo Adegbile’s nomination to head the Civil Rights Division of Justice suggests that many Americans are uncomfortable with an activist lawyer taking on a powerful government job that involves judgment calls about sensitive civil rights issues. Whether you agree with the Senate’s conclusion or not, you can’t blame it simply on race. And now you can’t blame it on supposedly obstructionist Senate Republicans.

Welcome to the new era of post-filibuster bipartisanship in the Senate.

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Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

This post was originally published on Breaking Gov sister site Above The Law.