Civil Rights Nomination Fight Connects To Decades-Old Murder

The Senate voted this week to bar Debo Adegbile from leading the Justice Department's Civil Rights Division. Law professors Douglas Kmiec and Spencer Overton discuss the case and role of the division.

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MICHEL MARTIN, HOST:

This is TELL ME MORE from NPR News. I'm Michel Martin. We're going to spend the first part of the program talking about an unusually tense nomination fight that touched on still raw feelings over a decades-old murder and connects to the politics of today. The fight was over the confirmation of civil rights lawyer Debo Adegbile to lead the civil rights division of the Justice Department. In a vote this week, the U.S. Senate rejected the nomination, but it was not strictly along partisan lines.

Seven Democrats joined the Republicans in blocking the vote. The vote was 52 to 47 - the largest number of Democrats to vote against an Obama nominee. Adegbile is a former double NAACP attorney who became controversial over his involvement with a case of Mumia Abu-Jamal who was convicted in the 1981 killing of a Philadelphia police officer. President Obama called the vote against him a travesty, but conservatives were equally outraged that Adegbile was nominated to begin with. We wanted to learn more about this whole story and why it touched such a nerve on both sides, so we've called Spencer Overton. He is a law professor at George Washington University, a former Justice Department official, and he is now interim president and CEO of the Joint Center for Political and Economic Studies. Welcome back.

SPENCER OVERTON: Thank you.

MARTIN: And we hope to have with us Douglas Kmiec. He is a professor of constitutional law at Pepperdine University. We want to mention he's running for Congress as an independent in Southern California. And we are still trying to reach him. And he will join our conversation as soon as he can. And so I'll start with you, Spencer Overton. Why was this nomination so controversial?

OVERTON: Well, it was because Debo was on a legal team at the NAACP Legal Defense Fund, which represented Mumia Abu-Jamal. And back when Debo was 11 years old, there was a white police officer who was killed, and Mumia was convicted of that. So when - fast forward to 2009, Debo is handling an appeal, and he's a lawyer who's working on a team on this appeal. And it's a, basically, a racially-charged case. So the argument is that he is somehow affiliated with Mumia because he was a lawyer working on this case.

MARTIN: He was described in a lot of the press releases from his opponents as cop killer defender...

OVERTON: Right.

MARTIN: ...Defender of cop kill.

OVERTON: And a note here is he didn't work on the trial, right. This is an appeal, a procedural matter. They were challenging jury instructions. And indeed, the court of appeals agreed with the NAACP LDF and said that these jury instructions were improper.

MARTIN: Douglas Kmiec, what's your take on why this was controversial?

DOUGLAS KMIEC: Well, thank you for having me. I think it's a - he's a person of courage in terms of willingness to represent one of the least popular, understandably, least popular people in the community. But there was a deliberate attempt, as unfortunately there has been in modern politics, to ascribe the crime even, this awful, horrific crime, to the defender in court. Well, of course, if that becomes the standard, then we've subverted the entire legal system because people are entitled to the representation. And indeed, the law enforcement community itself counts on lawyers to do their part so that their work in the field isn't in fact vindicated. So I think this is a Willie Horton kind of thing.

This is something that law students are taught from the very beginning because everyone sees the famous movie "To Kill a Mockingbird," and admires Atticus Finch for being willing to represent the person that who's the least trusted in the community, but of course it doesn't always have the greatest ending in real life as it does in the movies.

MARTIN: So Professor Kmiec, do you feel that the opposition to him was unfair - to Adegbile was fair or unfair? You think it was unfair?

KMIEC: Well, I think it was unfair. I think to attribute the crime to the person who's trying to vindicate the constitutional system, which is all Debo Adegbile was doing, he was - you know, the precedent here is clear - the Batson precedent to make sure that the jury is well instructed, to make sure that the jury is composed in a fair matter, that race hasn't been used in terms of the exercise of peremptory challenges. That's all he was raising. It was this type of argument that is very much a lawyer's argument and a constitutional lawyer's argument, and he made it very well before the Supreme Court.

MARTIN: Why then do you think that this nomination became as controversial as it did? I mean, because a lot of the people who are opposing them are themselves lawyers. I mean, Senator Bob Casey from Pennsylvania is one of the people who voted against the nomination. In fact, I would venture to say that being a lawyer is probably the predominant profession in the Senate, you know, as it is probably in the House. So why do you think that this became as controversial as it did?

KMIEC: Well, I think it is a horrific crime. And the particular criminal involved has not been at all repentant and, you know, has been somewhat notorious. I also think that, as is always the case in Washington especially, there's both arguments that are made to court, which Debo Adegbile made, and arguments that are made to the court of public opinion. And the arguments made to the court of public opinion are less precise and they tend to be more inflamed and they tend to be somewhat sensational. It was wrong to attribute those arguments that were made on the street or in informal settings to Debo, but nevertheless, they were.

And this is - this, I think, is something that, unfortunately, you know, this is not a proud moment. Now should the president have anticipated this? I think certainly the people in the White House should have given him advice on this question that, you know, there's one thing about appointing a man of principle, which is what he did and exercised, another thing about asking yourself the practical politics - can we get this man of principle confirmed? And the civil rights division is an extremely important post that requires administration for voting rights, for housing discrimination and all manner of things. And I think one of the things that's unfortunate about this is that the White House had the courage to get him nominated, but obviously may have underestimated the strength of the opposition.

MARTIN: What about that, Spencer Overton? I do - I just want to take one minute to just point out that - I just want to play a short clip from the Senate majority leader, Harry Reid, who made the point that other high-ranking officials have defended notorious killers and unpopular defendants. And this is him speaking on the Senate floor.

(SOUNDBITE OF SPEECH)

SENATOR HARRY REID: Chief Justice Roberts provided pro bono assistance, for example, to the defense of a prisoner on Florida's death row, who was convicted of killing eight people. That was not brought up during his confirmation hearing by us because he was - he had a job to do.

MARTIN: So what about that, Spencer Overton? I mean, is it that the White House lacked the political antenna to address this properly? Or how - what happened here?

OVERTON: No, I understand. There are real politics here, you know.

MARTIN: But this is the political job. I mean...

OVERTON: No, I agree with you. I agree with you. Shaheen - Senator Shaheen and Kay Hagan have already been attacked for voting for Debo here. The problem is that this is a throwback, as Doug mentioned, to the '80s, right. The Willie Horton, fear the black criminal piece, politicians trying to prove guilt by association. We've got real issues with regard to Trayvon Martin, Jordan Davis, but now it's a political crime to be a lawyer for a criminal defendant for something that happened 30 years ago.

The problem with this is that it threatens the Constitution. This notion that every criminal defendant deserves a lawyer - it's a constitutional right. If lawyers are afraid they're going to be guilty by association, they're going to be afraid to work on unpopular cases. So I think that the White House - people have criticized the White House for not appointing judges who were criminal defense lawyers in the past, right. And the - I think it's a good thing, actually. That the White House...

MARTIN: Well, I understand your point on the substance of it. What I'm asking you now is the politics of it. I mean, I understand that you and Professor Kmiec agree...

OVERTON: Right.

MARTIN: ...That this is a terrible precedent...

OVERTON: Right.

MARTIN: ...To set that people are now considered to be barred from public service because of their - acting within the scope of their professional responsibilities. But I'm asking you about the politics of it.

OVERTON: And what I'm saying is these are politics from the 1980's, and we're either going to move on from them or we are not. And we're not going to move on from them by basically conceding to them and saying that someone who's represented a criminal defendant can never serve on the bench or in the Justice Department.

MARTIN: Professor Kmiec, I noted that you were - I noted before you joined our conversation, that you are yourself running for Congress as an Independent. And I'm curious how you would have handled this yourself because the issue here, apparently, is that there are Democrats - let's assume that some of these folks opposed him as a matter of principle or conscience on their part or because, you know, their key constituency is that they feel would be so offended by even the slight association with this defendant, that they felt that they had to honor that point of view. But what about others who said, well, they are in vulnerable districts, and so the president put them at risk here and that they should not have put this nomination forward at all? Had you been in this position as a person who's a candidate yourself, what would you have done? How would you have addressed it?

KMIEC: Well, you know, I actually thought about that in coming on your program. There's no question that I suspect that I'll hear about the fact that I made statements in favor of Debo Adegbile. And - but you have to either live with yourself and live with your conscience or not. And so I think you - Spencer and I have to live with the fact that we take an oath to the Constitution of the United States. And quite frankly, I think Officer Faulkner and his memory is honored when the Constitution is observed because, again, police officers are out there putting their line - their life on the line. And if the system is being eroded from the top in the sense that we're not paying attention to basic fairness and equal justice, then we're asking the police, every day, to put their life on the line for a system that's tainted. Well, that can't be the right answer.

OVERTON: I agree.

KMIEC: And so I would hope that all of us who are involved in politics, whether we're candidates or not, would defend the principal. That said, the president has another obligation when he makes these nominations. He has to remember that there are thousands of people depending upon the direction of the head of the office of the division of civil rights. It's one of the most important divisions in the Department of Justice. Housing cases, employment cases, voting cases, AIDs cases, disability cases, they all go through that office and are supervised and directed by it. This is a setback for civil rights today, not only because we lost a man who was only doing his job and doing...

MARTIN: I'm sorry, Professor. We have to interrupt. We have to leave it there for now. Time is the one thing they're not making more of. Douglas Kmiec is professor of constitutional law at Pepperdine University. We reached him there at his office there. Spencer Overton is a professor of law at George Washington University, the interim president of the Joint Center for Political and Economic Studies. He joined us here in Washington, D.C. I thank you both so much for joining us.

OVERTON: Thanks.

KMIEC: Thank you.

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