The Senate's 7 Cowards

High school students, when they study American history, especially the story of the lead up to the Revolutionary War, learn about the famous "Boston Massacre", where British troops killed five Boston residents, were put on trial for the murders, and faced execution. The students might learn how the soldiers could not find legal representation, and how 35-year-old John Adams agreed to defend them, even in such an inflammatory atmosphere, and how Adams won acquittals for almost all of the defendants. The story of Adams's defense has become one of the great symbols of the courage of lawyers who ignore popular disapproval in order to preserve the Rule of Law and the constitutional right of every defendant, even the most despised, to a lawyer, and to a fair trial.

So, when the U.S. Senate on Wednesday rejected Debo Adegbile, President Obama's nominee to head the Justice Department's Civil Rights Division, the "No" votes that became the big story were not the "No" votes of the Republican senators who voted in lock-step, but rather, the "No" votes of seven Senate Democrats. Mr. Adegbile -- nobody disputed that he was eminently qualified for the position -- is a former director of the NAACP's Legal Defense and Education Fund when that organization represented Mumia Abu-Jamal on his appeal from a death sentence for killing a Philadelphia police officer.
Put aside the ravings of Senator Mitch McConnell of Kentucky, the Republican leader, who called Mr. Adegbile's involvement in Abu Jamal's defense an effort to "glorify an unrepentant cop-killer" and "impugn honorable and selfless law enforcement officers." Such Republican rants are predictable. It was the "No" votes of seven Democrats - Bob Casey (D-PA.), Chris Coons (D- DE), Joe Donnelly (D-IN), Heidi Heitkamp (D-ND), Joe Manchin (D-WV), Mark Pryor (D-AR), and John Walsh (D-MT) -- that was not anticipated. These seven senators, according to news reports, rejected Mr. Adegbile's nomination because they were frightened that if they supported Mr. Adegbile they would suffer political retribution; voters would slavishly succumb to the mindless but inflammatory political rhetoric from a Republican opponent -- "Senator Endorsed Lawyer Who Defended Cop Killer."

Interestingly, five of the seven senators who voted to reject the nominee -- Casey, Coons, Donnelly, Heitkamp, and Pryor -- are all lawyers. As lawyers, they undoubtedly are familiar with the U.S. Constitution's command in the Sixth Amendment that persons charged with a crime have the right to have a lawyer defend them -- even for the most despicable person charged with the most heinous crime. And as lawyers, these senators surely know about the American Bar Association's ethical command in Rule 1.2(b) that a lawyer's role in representing a client should not be confused with his client's conduct, and that "a lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social or moral views or activities." Indeed, the commentary to this rule emphasizes not only to lawyers but to the general public as well the principle that legal representation should not be denied people who cannot afford lawyers or whose cause is controversial or the subject of popular disapproval. These seven senators rejected Mr. Adegbile because police officers likely would condemn anyone who was associated with the defense of Abu Jamal, and by extension, any senator who voted to endorse the nominee.

Curiously, despite his having participated in the defense of a mass murderer -- John Errol Ferguson -- the Supreme Court's Chief Justice, John Roberts, apparently got a free pass from these senators when he was nominated, all of whom voted (along with all of the Republicans, of course) to confirm him. Does murdering eight civilians in cold blood make Ferguson somewhat less of a "heinous, coldblooded killer," Coon's words describing Abu Jamal's killing of Police Officer Daniel Faulkner? Is it less objectionable for a lawyer to defend Ferguson than Abu Jamal? Indeed, Ferguson's appeal was denied and he was executed in Florida last year. Abu Jamal's appeal to his death sentence was successful; his death sentence was vacated because the trial judge gave the jury confusing instructions. Is that a rational distinction that motivated these senators?

The rejection of Mr. Adegbile by these seven Democrats was unprincipled, as well as cowardly. How else to characterize their votes to the high school students who were learning about how John Adams, second President of the United States, defended British soldiers for murdering civilian colonists? What does one tell these students about the role of a lawyer in the U.S. justice system? What does one tell these students about the way the Democratic process works? What does one say to these students about the oath all public officials take to support the Constitution, not just selective parts? Indeed, if any of these students decide to become a lawyer, the message from the Adegbile fiasco is clear: Be careful who you choose to represent because if you defend unpopular people, your career may suffer.