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Tom Fiebiger, Fargo, Published March 11 2014

Letter: Shameful vote in Senate reveals double standard

You did not read about it in The Forum, but on March 5, Sens. John Hoeven, R-N.D., and Heidi Heitkamp, D-N.D., voted against the confirmation of Debo Adegbile to lead the Justice Department’s Civil Rights Division. Everyone agreed Adegbile was a top-notch lawyer. But Adegbile, the son of Nigerian and Irish parents, was the litigation director of the NAACP legal defense fund when it represented Mumia Abu-Jamal on an appeal of his death sentence for killing a Philadelphia police officer years ago.

Thirty two years after the killing, the vote failed 47-52 in the Senate, with all Republicans and seven Democrats voting against Adegbile’s nomination. Adegbile could not overcome a campaign by Republicans, conservative activists and law enforcement organizations that were still infuriated by the murder of Daniel Faulkner.

Doing his job

Adegbile appears to have paid the heavy price for doing his job. Adegbile, as litigation director of the NAACP legal defense fund, reportedly did not get involved in the defense of Abu-Jamal until 2006, when they filed a friend of the court brief in 2006. According to Sherrilyn Ifill, president of the Legal Defense Fund, Adegbile’s name did not appear on any brief until 2008, and the fund did not become directly involved in the case until 2011. The “friend’s” argument was that the jury sentencing instructions in the case had been unconstitutional, and ultimately prevailed in having Abu-Jamal’s death sentence commuted. Abu-Jamal is now serving life without parole sentence.

As Ifill points out, this was not some kind of a liberal crusade – this was constitutional error. That point seems to have been missed. A constitutional error is not a “technicality.” Yet even that is not the biggest problem with how Adegbile’s nomination was handled by the Senate.

It’s about rights

Did the senators vote this way because the person killed was a police officer? Perhaps. Perhaps senators worried that a nominee with Adegbile’s history might have difficulties working with police unions. But this cannot just be about whether a nominee can work with police unions. This is about having someone passionate about civil rights and qualified to do the work –something missing from the last administration. Quite frankly, police unions have a reciprocal obligation to work professionally with Adegbile and the Justice Department to protect and enforce civil rights laws in this country.

But the reality of the election of the first black president – twice – is that the person he selects to head up the Civil Rights Division of the Justice Department is going to be a person with a significant history of work in civil rights, a passion for civil rights, and be someone who will have rubbed some people the wrong way in the course of doing their job. Adegbile was that kind of nominee.

The chief justice

It is reported that John Roberts, a Caucasian who was confirmed by the Senate as chief justice of the Supreme Court, had done pro bono work during his legal career representing a man convicted of killing eight people, and who was on death row (and who was only recently executed). Yet, nowhere in the Roberts nomination was this raised as an issue by Republicans or conservative activist groups or others, that Roberts doing his job as a lawyer representing a killer of eight should somehow disqualify him from being Chief Justice – because he represented someone convicted of murdering eight people. That’s because this was not an issue as to his qualifications to serve as chief justice. Adegbile was accused of being too aggressive in his work on behalf of Abu-Jamal, a convicted police killer. Yet somehow in 2014 it is now made an issue when the Senate is considering a qualified black nominee, Adegbile, to head the Justice Department’s Civil Rights Division.

Dark day

Sen. Tom Harkin, D-Iowa., eloquently spoke to this issue on the Senate floor after this unfortunate vote. He called it one of the darkest moments in his lengthy Senate career. He said the message being sent to young black lawyers interested in pursuing a career in public service is that you should not defend the rights of those accused or convicted of killing someone – which is your professional and ethical obligation, and on which our justice system is based and depends – if you hope to someday have any position requiring confirmation.

Yet the message to young Caucasian lawyers who represent similar clients is that this is entirely fine and within the ethical bounds of your job as a member of the legal community, and you can do so without any fear or worry. Appearances matter.

The very real appearance of a double standard for a Caucasian chief justice nominee and a black lawyer to lead the Civil Rights Division at the Justice Department is disappointing and disturbing to me as a lawyer and former legislator, and as an American. Having it play out in the United States Senate, where many members are attorneys, makes it even more disturbing. It appears that this is politics and that Adegbile is paying the price.

But we will all pay the price for this vote. Having represented minority citizens in civil rights cases for 20 years, I continue to be dismayed by the systemic discriminatory treatment that these minority citizens can still be subjected to in 2014. We boast of a justice system where all citizens are treated equally under the law, but our actions, not just our words, send the message that some are still more equal than others.

Fiebiger is a Fargo attorney and former state legislator.