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Thursday, April 10, 2014

Law prawf letter on Adegbile nomination

A group of law professors is circulating this letter to Senators Leahy and Grassley [Updated verion] regarding the Senate's rejection Debo Adegbile to head DOJ's Civil Rights Division; several Senators expressly pointed to Adegbile's past representation of Mumia Abu Jamal as the basis for their opposition. While not asking the Senator to reconsider Adegbile's nomination, the letter expresses concern for what this rejection says about the right to counsel (issues I discussed), the obligations of lawyers to take-on pro bono representation, and what happens if lawyers are tagged with the sins of their clients (pointing not only to Chief Justice Roberts, as did several commenters to my earlier posts, but also to John Adams for his (successful) representation of the British soldiers charged in the Boston Massacre).

The authors are looking for law professors to sign on to the letter. If interested, you can do so online at this link. The deadline for signing is April 17.

Posted by Howard Wasserman on April 10, 2014 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink


Good luck ... maybe it will work better than the law professors (including one or more conservatives -- e.g., Prof. David Bernstein) who signed a letter against the filibuster of Prof. Nourse for appellate judge.

Posted by: Joe | Apr 10, 2014 9:41:13 AM

A question, Howard:

Who are the folks who drafted and circulated this letter? Just curious.

And is there a reason they're not identified here or on the letter itself?

Posted by: SparkleMotion | Apr 10, 2014 12:26:02 PM

I received the letter on the LawProf ListServ; it was posted to the list by Anthony Varona (American) on behalf of Angela Davis (American). So Angela is one of the people driving this; not sure who else.

Joe: The interesting thing is that the letter expressly disclaims any support for Adegbile or any other nominee. It is trying to affect the *arguments* that Senators make. In that sense, it is doing what academic (as opposed to political) advocacy should do.

Posted by: Howard Wasserman | Apr 10, 2014 12:36:01 PM

I think there are two ways of reading the letter:

1) It is *always* improper for U.S. Senators to be against a nominee for an executive branch position based on that nominee's choice of clients to represent in the context of pro bono criminal defense.

2) It was improper *in this case* for U.S. Senators to be against this particular nominee for an executive branch position based on that nominee's choice of clients to represent in the context of pro bono criminal defense.

If the letter is supposed to be read the first way, here's a hypothetical designed to test the proposition. Imagine that in a future GOP Administration, the President nominates as head of the Civil Rights Division a right-wing lawyer who spent several years as the sole member of a Koch-funded organization, the Center for the Defense of Hate Crimes. The "Center" is opposed to hate crimes prosecutions, and it offers pro bono defense to individuals charged with bias crimes. During the years that the nominee headed the the Center, all of his clients were white men who were charged with assault, murder, and other crimes against African-Americans, women, and LBGT individuals on the basis of their race, gender, and sexual orientation. Imagine that Senators are reluctant to confirm this individual to head the Civil Rights Division on the basis of his record of pro bono criminal defense representation. The nominee's choice of clients signals that the person may have troubling views, the Senators reason, and in any event the association with such a controversial cause would make it very hard for the individual to work effectively with others in and outside the Civil Rights Division.

The question is, would the individuals who have signed or plan to sign the above letter be equally outraged if Senators chose to vote against the nominee in my hypothetical on that basis, or would they think it entirely proper? And if the real case and hypo are distinguishable, are they distinguishable for reasons that go outside Reading #1? Of course, if Reading #2 is the one that was intended, then just ignore my comment. :)

Posted by: Orin Kerr | Apr 10, 2014 2:24:17 PM

The "arguments" politicians make is a prime matter of policy that affects elections, so I'm not fully sure the dividing line is particularly clear-cut exactly.

If the right to choose an abortion is seen as an important constitutional right which seems to be part of a "core value of the legal profession to support," a letter might "take that off the table" (e.g., in regard to Dawn Johnsen) w/o necessarily supporting the nominee (maybe he or she is wrong for some other reason).

It is fine that the letter regards a categorical concern as compared to support of a specific person, though honestly, it comes off as "support" in a realistic sense to many an objective observer probably. But, I'm not sure if "academic" and "political" is such a clear line. Anyway, the letter I referenced might have fit the bill too if the concern was against the filibuster as used there as compared to the person in question only.

BTW, the person referenced might sound familiar ... but, no, that is ANOTHER Angela Davis! But, particularly given this Prof. Davis' background, I can understand Prof. Kerr's query all the same.

Posted by: Joe | Apr 10, 2014 4:23:02 PM

I'm not convinced Orin's counterfactual actually works. The objected representation was not to the general partisan representation in which the LDF engages but the ultimately successful challenge to a constitutionally infirm capital trial of an otherwise (arguably) objectionable client. In Orin's counter (as I read it), the individual is being objected to for more overtly partisan lawyering. Moreover, even if Orin's reading 1 is right AND his counterfactual plays, given the particular position for which Adegbile was nominated, objecting to the counterfactual's lawyer for his participation in an organization that takes a view of civil rights that undermines the work of the Civil Rights Division is objectively less problematic (and maybe justified) than objecting to Adegbile because of his pro bono representation. Now if what Orin is really saying is "I don't believe their neutral-ish explanation," that's a different story.

Posted by: ProfYuille | Apr 10, 2014 8:48:06 PM

ProfYullie, your last sentence is what I'm focused on. If we interpret the letter as offering the neutral explanation of Reading #1, I'm not sure that the individuals who signed the letter would stick to that view with the politics reversed.

As to your first point, if you want to make the hypo work better, assume that the conservative nominee is successful in leading courts to invalidate hate crimes convictions on First Amendment grounds. Again, we would have the nominee acting as a pro bono attorney vindicating the Constitution and making sure that an unconstitutional conviction cannot stand, with Senators opposing the nominee based on that pro bono representation.

Posted by: Orin Kerr | Apr 10, 2014 9:02:55 PM

Orin - setting your skepticism about the authors' neutralish explanation, do you agree with their arguments?

Posted by: nonprof | Apr 10, 2014 11:00:56 PM


It depends what arguments you mean. The letter contends that the rejection of Debo Adegbile implicitly sends a set of symbolic messages -- about the 6th Amendment, about pro bono work, etc. -- and it expresses dismay at those messages. If you're asking whether I agree that the Senate's rejection sends those symbolic messages, then the answer is "no," as my hypothetical suggests. On the other hand, if you're asking, if we assume that the rejection does send those symbolic messages, whether I disagree with the symbolic messages that it sends, then the answer is "yes." So I agree with the underlying values of pro bono work and the Sixth Amendment, etc., but I think that there are other explanations for the Senate's action that do not question those values. (Full disclosure: I have also represented a cop-killer on death row pro bono in a case that successfully challenged the conviction as unconstitutional.)

Posted by: Orin Kerr | Apr 11, 2014 12:42:14 AM

Assuming for now the truth of the public statements by key opponents, the big problem wasn’t the ordinary lawyering; the problem was an NAACP publicity campaign, conducted outside the courts, claiming that the conviction (for which there was overwhelming evidence) had everything to do with race. (I'm thinking in particular about the WSJ op-ed that was co-authored by the Democrat DA from Philly.) If that’s true, does that matter?

One of the problems I have with this entire situation is that the people condemning Adegbile almost always attribute to him everything done by every lawyer at the NAACP and sometimes by non-NAACP lawyers as well.

Posted by: John Steele | Apr 11, 2014 10:51:33 AM

In a previous thread, I pushed back a bit on the opening post's strong opposition to the rejection here. On balance, I oppose the move by the Senate here (really -- not "the Senate" via filibuster), but do understand that nominations are going to be somewhat political in these cases, with Prof. Kerr's example showing the appearances etc. matters, even when they should not in an ideal world.

Some strong responses to his nomination being blocked argue, full stop, the opponents oppose good lawyering and protecting due process of law. As if any number of representations, including of Roberts' defending someone on mental health grounds (which sells much better than the client here), would be treated the same way.

The problem is on balance that the nominee is worth supporting and his representation of his client here should not be used to oppose it. But, some pure principle flagged in Kerr's comment is to me a tad naive. It very well might be a bit less blatant (e.g., a matter of whom is nominated in the first place) in practice but that isn't how things work in the real world. The letter itself basically hedges its bets, such as pointing out the special need for advocates on death row.

Still, maybe, the principle is a good one to promote, since it makes cases like this harder to justify -- even if it is okay, such rejections should be seen as problematic. Opposition keeps one honest.

Posted by: Joe | Apr 11, 2014 11:44:53 AM

As a Philly native, I think John Steele raises some important points about this particular case. Back home, there was more concern with the way in which Abu-Jamal was defended, not that he was defended at all. (I am also not sure the letter accurately characterizes the LDF's work on the case. As I recall, the LDF's amici in the Third Circuit focused on Batson issues rejected by the court, not the jury instruction question which was successful.)

The fact that so few people publicly objected to attacks on GOP judicial and other nominees for their past clients suggests a double standard is at work here. Indeed, there are attacks gong on right now against a district court nominee in Georgia for his past clients. I would like to believe the letter adopts Orin's interpretation #1 above, but I am not so sure.

Posted by: Jonathan H. Adler | Apr 11, 2014 1:13:32 PM

@Orin [Apr 10, 2014 9:02:55 PM], I think you are correct that the authors would probably not be letter writing if the politics were reversed. And, I am not 100% sure that is a bad thing. [That is the point of my penultimate sentence, and I think it survives, though weakened, your revised counterfactual.(The civil rights division does focus on "he most vulnerable members of our society)] At the same time, I agree with what I infer from the tenor of your comments: To the extent that Reading #1 is only neutral-ish, they should be more explicit about the "ish."

Posted by: ProfYuille | Apr 11, 2014 2:15:59 PM

I am very interested in this subject because in 2002, Senator Kennedy spoke against my judicial nomination by President Bush. Senator Kennedy made (among other points) this argument:
In addition to publishing law review articles, Professor Cassell filed amicus curiae briefs around the country seeking to convince courts that a Federal statute passed in 1968 effectively overruled Miranda and made voluntariness the sole test for the admissibility of confessions in Federal criminal cases.
148 Cong. Rec. S4254-02, S4263 (2002).
While my supporters disagreed with the point on its merits, I didn't think it to any of them to argue that it was improper for Senator Kennedy to make the point. Was my situation the same as Adegbile’s amicus support of Abu Jamal?

Posted by: Paul Cassell | Apr 11, 2014 6:35:25 PM

I addressed a related point in the comments to my earlier Adegbile posts. I would be urging the same understanding of the lawyer's role with respect to anyone nominated for an executive branch position. Different lawyers have different priorities, different presidents have different priorities, and each president should find Civil Rights heads who reflect those priorities. As I said, I might have a different view for a judicial nominee, but I'd have to give that more thought. I cannot speak to how anyone else who signs the letter (whoever they turn out to be) would feel.

Paul: I can think of two distinctions between the situations; whether they justify different treatment is another story. The first is the difference between executive and judicial positions. The second is the difference between representing a party in litigation (especially a criminal defendant, with the attendant Sixth Amendment concerns) and asserting a legal position through amicus briefs; in the latter, the lawyer is "owning" the legal position more than in representing a client/party's interests.

Posted by: Howard Wasserman | Apr 11, 2014 11:51:57 PM

Yes, when people talk about this, you will hear some people say that an amicus brief doesn't get the leeway that direct representations do. As far as I can tell, Adegbile did both. But I have a hard time holding an NAACP amicus brief against its director of litigation when the issue is at the historical core of what that group fights for.

Here's a passage from the Washington Post: "Adegbile and other fund lawyers filed a friend-of-the-court brief with the Supreme Court in 2009 asserting that the conviction was invalid because of racial discrimination in jury selection. They directly represented Abu-Jamal when prosecutors asked the Supreme Court to reinstate his death sentence, which had been thrown out because of problems with jury instructions."

Posted by: John Steele | Apr 12, 2014 12:12:10 AM

" attacks on GOP judicial "

The balance of defeat came from around 10 Democratic senators.

I think the particular nature of the case and the client is the issue here. Citing John Roberts remains to me missing a major point -- the accounts I have seen describe the defense there being that the person was somehow mentally ill. Just not the same thing as the baggage here.

The reference to amicus briefs and executive v. judicial also is helpful.

Posted by: Joe | Apr 12, 2014 12:49:21 PM

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