The confirmation hearing for Debo Adegbile to head the Justice Department’s Civil Rights Division has many of the standard elements and witnesses on Adegbile’s career as a lawyer and an advocate. One witness however is not like the other: Maureen Faulkner, the widow of a Philadelphia police officer gunned down in 1981. Now, Adegbile is not accused of gunning down Philadelphia police officer Daniel Faulkner or even being an accomplice before or after the act. No, the witness is being called to suggest that Abegbile should not be confirmed because he represented the man convicted of the murder. Faulkner is being joined by Sen. Chuck Grassley, R-Iowa, and the Fraternal Order of Police in saying that such representation is relevant in determining if he should be confirmed. It is move that strikes at the heart of the notion of the right to counsel and due process. Many law students become prosecutors because they fear that representing criminal defendants or controversial clients will bar or hinder their professional advancement while the presidents and members of Congress continue to favor prosecutors for judicial appointments (making the federal bench a sometime hostile place for criminal defense counsel).
Adegbile has been denounced as “radical,” “dangerous” and “outside the mainstream.” However, the main proof of these allegations is the simple fact that he agreed to serve as counsel for Mumia Abu-Jamal. Abu-Jamal was a member of the Black Panther Party. He later became a radio journalist and president of the Philadelphia Association of Black Journalists. On December 9, 1981, Officer Faulkner was shot dead while conducting a traffic stop on a car driven by Abu-Jamal’s brother, William Cook. Faulkner shot Abu-Jamal in the encounter. The case became a national focus not only because of the death of a police officer but the later errors claimed in association with Abu-Jamal, who initially represented himself with disastrous results.
I can understand Maureen Faulkner’s anger at the loss of her husband. That anger is likely magnified by the international movement behind Abu-Jamal. She is quoted as saying that there is digest when she and others are forced to “witness Adgebile, a man proud to have chosen to aid the murderer of their friend, singled out for honors and high office by the government of the United States. It is an abomination to now reward Mr. Adgebile as if he had done something wonderful.” The problem is that critics seem to view the representation of a killer as a celebration or endorsement of the crime. If Adegbile has extreme views, we should hear them. That is a relevant concern and has been raised with regard to positions taken as legal counsel to NAACP’s Legal Defense Fund. However, the attention on his confirmation seems largely to focus on the fact that he dared to represent a hated individual. Criminal defense, particularly for indigent clients, is often a thankless job despite the legacy of such work found in the likes of John Adams. However, this hearing creates a clear chilling message for young lawyers and law students that they should turn down such cases if they do not want to bar any hope for professional advancement.
I am equally disturbed by the comment of Chuck Canterbury, president of the Fraternal Order of Police that “This nomination can be interpreted in only one way: it is a thumb in the eye of our nation’s law enforcement officers.” The impression was that the insult was nominating a lawyer who represented an accused cop killer. It that is the intention, it is a careless and thoughtless position. I have represented law enforcement personnel and I have sued police officers. I even represented officers of the Fraternal Order of Police. I will remind Canterbury that many denounce lawyers who represent officer accused of abuse or wrongful shootings.
I have the luxury of a job with lifetime tenure at a wonderful law school. I consider that position to come with the added responsibility to represent people who might not be able to secure counsel because of unpopularity or alleged crime. Other lawyers do not have such protection or support. The message being sent from this hearing is this lawyer should be judged by what his client did — a notion that is anathema to anyone who values the rule of law.
I know little about Adebdile and I have no objection of witnesses discussing his prior conduct or legal views. However, that is not the focus of the coverage thus far in this controversy. The message seems to be that no one will stop a lawyer from representing an unpopular client but you do so at your own risk. There are relevant issues and irrelevant issue. The fact that he was a child actor on Sesame Street, for example, does not mean that he was responsible for the content of the show. Being counsel to a criminal defendant and even believing in his innocence does not make him sympathetic to cop killers or facilitating murder.
I am very discomforted by the thrust of coverage on the nomination and the use of the murder case to undermine such a nominee.
samaxe:
I agree that an attorney should not represent clients whose views he/she finds abhorrent. Psychologically you can’t be all there no matter how professional you act or how pure your motives. Personally,I could never represent child abusers and declined lots of those cases when I did some criminal work early on. I disagree that good defense lawyers make good plaintiff’s lawyers. It’s a mindset to overcome to change aisles. That’s why I don’t dismiss Ms. Faulkner out-of-hand and think she has a right to be heard. While I don’t think that a client equals his lawyer certain lawyers gravitate towards certain clients and the public has a right to question why and if that mindset is suitable for the job at hand. I believe it admirable that lawyers take on certain unlikable clients but I’d have just as much trouble with a lawyer seeking out Donald Trump as one seeking out Donald Henry Gaskins. Why do you think we jump Judge Bybee for his ultra-rightwing acts during the Bush Administration?
Why is that so controversial?
By and large, Democrats have remained mute for 45 years while Republican presidents have stacked the federal courts with right wing extremists. The only time Senate Democrats accomplished something positive (and thank goodness they did) was when they defeated Reagan’s nomination of Robert Bork. OTOH, Justices Thomas and Alito (the two worst IMO) were each confirmed by less than filibuster-proof majorities.
Almost as inexcusable has been the nondescript appointments of Clinton and Obama, each of whom preferred appointing moderates over genuine liberals to avoid confrontations with right wing Republican senators.
(Okay, Justice Ginsburg is somewhat left of center although not enough to make a difference. And Justice Breyer essentially cancels her out because he’s somewhat to the right of center.)
Each of Obama’s appointees to the high court were the most conservative candidates on his respective “short lists.”
It would be perfectly fine for Democratic presidents to appoint middle of the road judges and justices IF Republican presidents did the same thing.
But they don’t.
Harry Reid begged George W. Bush to appoint a moderate conservative to the Supreme Court. Who did he nominate? Justice Alito, who has predictably become a reliable vote for the right wing position in numerous terrible decisions.
Everyone knows about Citizens United, Shelby County v Holder, and Lilly Ledbetter.
But, if you want a real taste of just how medieval this court is, take a look at Mutual Pharmaceutical Company, Inc. v Bartlett.
But don’t read it on an empty stomach.
“Firstly, you bring up an interesting point. He’s a defense attorney; how does that qualify him for an important role that is mostly prosecutorial?”
This one’s easy. Some of the best defense attorneys are former prosecutors. Some of the best plaintiffs’ lawyers are former defense lawyers and vice versa. If you know the subject matter, the side you used to be on shouldn’t matter. Just like judges are (theoretically at least) selected from either side of the counsel table.
“So, any of the attorneys for Westboro Baptist would be OK for the position, if nominated? Zimmerman’s attorney, perhaps? As long as they represented their clients well of course.”
First of all, it’s not always easy to tell whether an attorney represented his or her clients “well” unless the observer was intimately involved in the case. Without knowing all the facts and the theory of the litigant’s counsel, and without having watched him or her perform in the courtroom, it’s very difficult to evaluate a lawyer’s skill.
For example, it seems to me that the attorney who is currently representing David Wildstein is not doing a good job for his client. However, he’s very highly regarded in his field so he might well be employing a strategy that is best for his client even though I can’t discern what it is from afar.
Secondly, with respect to Zimmerman’s attorney, that’s a no-brainer. Everyone accused of a crime is entitled to a constitutionally adequate defense, and it’s the solemn duty of criminal lawyers to provide that defense. Even though I’m no fan of George Zimmerman by a long shot, I wouldn’t hesitate for a moment to approve the appointment of his lawyer to a high government position merely because he agreed to defend George Zimmerman.
If a lawyer thinks he can’t represent a particular client to the best of his ability, he shouldn’t take the case. But this situation should be extremely rare. In other words, it would be understandable if an attorney who was repeatedly molested as a child didn’t want to defend an accused child molester. Or an attorney whose child was recently killed by a drunk driver might well not want to defend a client who was accused of vehicular homicide.
Now, Professor Turley might disagree with me on this one, but I believe there are limits, and the rights of a defendant are better served if an attorney who finds a prospective client’s views especially abhorrent declines to accept the case rather than take it and do a less than creditable job.
Which brings me to Westboro Baptist. I personally find their conduct so despicable that I could not represent them, and I would not be at all comfortable if a lawyer who consistently provided services to them was nominated for a high government post.
Just like I could represent 98 or 99% of defendants who were accused of murder. But I could not represent the whack job who murdered Dr. Tiller.
But that’s just me. I would not be at all surprised if a lot, if not most, top notch criminal lawyers disagreed with me on this point.
Thanks, nick, but I haven’t exposed anything yet. Nobody has answered that question yet, not when I’ve asked it or when Mespo has.
Then again, pleading the fifth or in any fashion refusing to testify on you own behalf an admission of guilt in any court of law – and anyone who tells you differently should be your defense attorney – so…
jonolan w/ a Joe Frazier left hook, leaving the opponent reeling. Hypocrisy is so fun to expose.
Dan,
Firstly, you bring up an interesting point. He’s a defense attorney; how does that qualify him for an important role that is mostly prosecutorial?
But let’s leave that aside for the moment…
So, any of the attorneys for Westboro Baptist would be OK for the position, if nominated? Zimmerman’s attorney, perhaps? As long as they represented their clients well of course.
” Your professional history is, by and large, the only measure that should be used in those cases.”
The measure is whether he represented Abu-Jamal well or poorly.
Your case (that you keep repeating and convincing no one) is that he fails the measure because he represented Abu-Jamal at all.
The candidate that you would consider ideal is in fact unqualified. A defense attorney who has not defended odious persons is too inexperienced to consider for appointment.
Mike Appleton,
Basing our approval of you for any high office or office of specific responsibility up on the nature and/or acceptability of your clients is logically sound and morally required. Your professional history is, by and large, the only measure that should be used in those cases.
Your clients, again by and large, have the right to counsel – Mumia Abu-Jamal didn’t have such a right though due to the nature of case when Adegbile took him as a client – but they don’t have the right to YOU as their counsel. You choose your clients and those choices should and do carry consequences.
This country sorely needs more lawyers/judges who are informed and guided by Critical Legal Studies.
mespo:
My point is that the Constitution guarantees access to legal counsel for criminal defendants and access to the courts for everyone. You may question me about my legal philosophy as long as you wish. You may question my social, political and economic values. You may even question my religious beliefs. But basing your approval on the acceptability of my clients is logically flawed and morally unjust.
“rafflaw
Jeff,
you have some valid points. This idea of holding up an appointment because this attorney represented a client who one side of the aisle does not agree with, is nothing but obstruction.”
That much is true. What’s also true is that is a proper and long-accepted part of the political process – with the exception that the recent (ish) trend towards just not moving on the nominations at all is, IMO, not so right and proper and should only be used in extremis as oppose to de rigueur.
Of course, equating what is happening to this particular appointee to what I said above is pure Leftist partisan crap. It’s also Obama’s special little bully pulpit for paying the GOP back for not even voting on so many of his appointees…so I’m not going to fuss too much about it.
Jeff Friedman:
Succinct and correct.
Jeff,
you have some valid points. This idea of holding up an appointment because this attorney represented a client who one side of the aisle does not agree with, is nothing but obstruction.
This latest right wing effort to obstruct this president’s judicial and executive appointments sounds like it’s straight out of the Liz Cheney Playbook. And few people who have passed the bar have left such an indelible stain on the profession as Ms. Cheney who objected to the appointment of any lawyer who represented a Guantanamo Bay detainee. (Because each and every one of those alleged “terrorists” was guilty, right?)
This is not the first time that despicable right wing extremist senators have tried to jettison an Obama judicial nominee because of a client he or she once represented. They held up Caitlyn Halligan’s nomination for a federal judgeship strictly on the basis that she once had the temerity to represent (gasp) a plaintiff who was suing the NRA.
But somehow the extensive paper trails of obvious right wing extremist idealogues like Samuel Alito, Clarence Thomas, Antonin Scalia, and John Roberts didn’t prevent their appointments to the highest court in the country by Republican presidents.
With respect to Senator Grassley, I would never contend that his age (80) in and of itself suggests that he must be suffering from some degree of dementia. However, some of the positions that he has recently adopted can’t help but make one question his competence.
One primary example was his strident argument in favor of abolishing three seats on the D.C. Circuit Court for the sole purpose of preventing President Obama from filling them.
For eight years, George W. Bush appointed judges from the farthest regions of the extreme right in a transparent effort to turn the federal judiciary into a nationwide, right wing think tank with judicial authority. In so doing, he ignored repeated pleas from Democratic senators to appoint moderate conservative judges and justices instead of agenda-driven idealogues like Alito, Janice Rogers Brown, Priscilla Owen, and William Pryor, among others.
So now that the federal bench is skewed so drastically to the right, senators like Grassley don’t believe that a Democratic president should be allowed to appoint judges of his choice even though most of President Obama’s nominees have been moderates, in fact much too moderate for the tastes of his base.
Under these circumstances, accusing Senator Grassley of suffering from dementia might actually be a compliment.
Because the alternative explanation is even uglier.
Much uglier.
SlingTrebuchet,
My argument is that a racial activist, be they NAACP, La Raza, or KKK, is not a suitable person to head up a division whose mission is to promote civil rights. This is especially true in a time when the Democrats are striving to misuse civil rights laws and the office that Adegbile’s up for to rewrite the political landscape…even when the SCOTUS has told them that they have no foundation for doing so.
sling:
“The argument here seems to be that someone with a background in activism for civil rights is not a suitable person to head up a division whose mission is to promote civil rights.”
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I think it is a legitimate question about whether a potential government official has a bias that would cast doubt on his judgment. It is not his job to “promote civil rights.” His job is to enforce laws governing civil rights’ protections passed by Congress and ruled on by SCOTUS within his administrative framework.
I don’t think we need zealots of either stripe in high government positions especially positions that can decide issues of whether or not to activate the immense power of the state against a person or entity.
Jonolan: “I must reiterate – since everyone broadens it – my concern is only when those attorneys’ previous actions and shown or implied biases are directly relevant to the position they want. ”
The Fox piece linked to in the original post is most definitely on the “broaden” side. It seems the widow wants to ( or had been asked to) testify based *solely* on Adegbile having been a defence lawyer for Abu-Jamal.
The Fraternal Order of Police are unambiguous. “This nomination can be interpreted in only one way: it is a thumb in the eye of our nation’s law enforcement officers”
Sen. Chuck Grassley probably has far more lofty motivations. He probably just wants to milk it to block Obama. Using a widow for emotional impact on what should be a considered process seems a bit tawdry.
.
Putting that aside, consider the overall “suitablity for post” issue.
The DOJ website describes the mission of the Division
The argument here seems to be that someone with a background in activism for civil rights is not a suitable person to head up a division whose mission is to promote civil rights.
You just know he’s going to start on about the constitutional rights of vulnerable cohabiting gay brown Muslims – and that’s just un-American!
Mike Appleton
Did you perhaps miss my point? Not only ALL Criminal Lawyers but SOME Prosecutors and Judges especially are routinely DISHONEST in what they withhold from jurors = the whole truth. Capricious decisions via their self inflated egos seeing themselves as superior beings withhold the truth as being inflammatory, inferring jurors to me retarded in every way.
Ah, Mespo, very true. I couldn’t really see the separation between the points; they’re completely intertwined to my thinking.
jonolan:
“Thank you but, again, I must reiterate – since everyone broadens it – that my concern is only when those attorneys’ previous actions and shown or implied biases are directly relevant to the position they want.”
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I get that and it’s a legitimate point of view. I just thought you raised another very interesting point when lawyer moves from legal advocate to social cheerleader.
To me the question is how did he defend Mumia Abu-Jamal?
Did he use tactics that insured the defendant got a fair trial or did he try to shift blame to the victim?