After the Boston Massacre in 1770, attorney John Adams decided to defend the soldiers who had slaughtered his fellow Bostonians. His decision to defend the soldiers was unpopular, and he lost over half of his clients. Reflecting on his career after he had gone on to serve as President, he called his defense of the soldiers “one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.”
The Senate’s rejection yesterday of President Obama’s nominee for the Department of Justice Civil Rights Division, Debo Adegbile, would have Adams turning over in his grave. Adegbile was subject to spurious Republican attacks because he had served as Legal Counsel to the NAACP’s Legal Defense Fund and participated in the defense of Mumia Abu-Jamal, who had been convicted of killing a Philadelphia police officer in 1981. Adegbile’s only participation in the case had been to file a 2009 motion claiming that Jamal had faced a discriminatory jury. For Republicans, with the assistance of a slew of swing-state Democrats, that was enough to reject his nomination. Adegbile’s stellar legal career, which included two appearances before the Supreme Court defending the Voting Rights Act, were swept aside. In right-wing media he became a “cop-killer advocate.”
The attack on Adegbile was, in reality, an attack on the Civil Rights Division itself. The conservative accusations included the bizarre claim that when Adegbile was counsel to the NAACP Legal Defense Fund, which had been run by Thurgood Marshall, he led it towards an “increasingly radical” position. The attack had less to do with Adegbile’s supposed selection of Jamal as a client and more to do with the belief that, as the National Review openly stated, the division has been “a micromanager of daily life.” In reality, the stance was an attack on having a competent Civil Rights Division that can protect voting rights and prevent discrimination.
And it was nothing new. The vote was the latest iteration of the Republican attack on the Civil Rights Division. During the Clinton administration, GOP Senators repeatedly went after the nominees for the position. Lani Guinier, a former head of the voting rights project at the NAACP Legal Defense Fund and veteran of the Civil Rights Division, was nominated for the position in 1993. Republicans attacked her academic work for seeking to promote minority political power. In the process, her academic work was scanned for a few sentences that could be misconstrued. "I don't think anyone can understand complex ideas about political participation by referring to one sentence or one footnote in a 77-page article. If it were that simple, I wouldn't have written 77 pages--I'd have written one sentence," Gunier said. Nonetheless, amidst ceaseless bad-faith attacks, President Clinton decided to withdraw her nomination.
In 1997, President Clinton nominated Bill Lann Lee to the position and the episode was repeated. Lee was a prominent Chinese American civil rights lawyer who had begun his career at the NAACP Legal Defense Fund working for Jack Greenberg. After Clinton nominated Lee, Senator Orrin Hatch launched an effort to block his confirmation. Hatch’s reasons were spurious; he claimed that Lee’s work at the NAACP Legal Defense Fund made him biased and he cited Lee’s opposition to a California proposition that banned the use of race in state hiring. Lee was unable to get confirmed and had to serve out the rest of the administration with a recess appointment.
During the Bush administration, the political appointees attempted to push out the career attorneys and turned the division’s focus towards hyped-up claims about black-on-white discrimination. A review by the Government Accountability Office found that the during the Bush administration there was a “significant drop in the enforcement of several major antidiscrimination and voting rights laws.” In one episode, career attorneys who wanted to look into a claim that state officials had illegally sought to intimidate black voters were told that the Justice Department would not approve the investigation. Instead, the department opened up an investigation into the New Black Panther Party for voter intimidation in a Philadelphia precinct after the case received widespread attention in conservative media. The case was later dropped due to a lack of evidence. Abigail Thernstrom, a Bush appointee to the U.S. Commission on Civil Rights, later stated that the case was only based on “fantasies.” The episode provided cover the Bush administration to disable the Civil Rights Division from fulfilling its traditional mandate of protecting minority rights.
In rejecting Adegbile, Republicans have scored another win in the long war against the division. And while President Obama may nominate another qualified individual to fill this important position, don’t expect conservatives to change their tune. Senators will harangue on some other supposed defect with the nominee but the real story is that they just don’t want the Justice Department to be defending civil rights.
Sam Kleiner is a fellow at the Yale Law School’s Information Society Project.