Letters from Ms. Maureen Faulkner, the Philadelphia District Attorney, and various law enforcement organizations opposing the nomination of Debo Adegbile can be found here.
Mr. Chairman, we have five nominations on today’s agenda. Those include three district court nominations, and two nominees to be Assistant Attorneys General. I believe we can process the district court nominees by voice vote. It is my understanding that we can also move Mr. Carlin’s nomination to be Assistant Attorney General for the National Security Division by voice vote. We will need a roll call vote on Mr. Adegbile’s nomination to the Civil Rights Division.
With respect to the legislation, I understand we’ll be holding over both S. 1675 and S. 149, the STOP Identity Theft Act of 2013.
Before we vote on Mr. Adegbile’s nomination, I’d like to share with my colleagues my concerns with the nomination and explain why I’ll be voting no.
Let me first say, I’m aware the nominee has just recently worked on the Chairman’s staff. I believe he possesses a high moral character and personal integrity. But I’ve reached the conclusion that he isn’t the right pick to lead this important office.
First of all, it’s no secret that I believe the last individual to lead this office was highly political, and extremely committed to a host of political causes.
Of course, I don’t expect President Obama to nominate conservatives to be his political appointees. But as we all know, these are important jobs. The individuals who hold them wield a tremendous amount of power on behalf of the Department of Justice. So, I’d expect the President’s nominees to be liberal.
BUT, the leader of this office can’t be SO committed to political causes, that it clouds his or her judgment. This is particularly important here, given that the tenure of the last head of the office was marked by controversy. And those controversies, in my view, were a direct result of a deep commitment to liberal causes, which clouded his judgment.
The quid pro quo between the Department of Justice and the City of St. Paul illustrates my point.
In that case, the head of the Civil Rights Division was SO deeply committed to making sure the legal theory “disparate impact” evaded Supreme Court review, that it clouded his judgment. If he hadn’t been so committed to that cause, I doubt he would’ve orchestrated an inappropriate quid pro quo that cost taxpayers millions of dollars.
So given this history, it’s especially important that the leader of this office be able to lead it in a new direction.
Based on my review of Mr. Adegbile’s record, I believe he is too deeply committed to a host of liberal causes to be an effective leader of that office.
I’m not going to mention every aspect of the nominee’s record that I find troubling. That’s a fairly long list. But I will mention a few.
For example, the nominee’s litigation on First Amendment issues should give us all pause. In an amicus brief he filed in the recent Supreme Court case, Hosanna-Tabor v. EEOC, Mr. Adegbile advocated for a radical infringement on the free-exercise rights of religious organizations.
More specifically, he argued that a church didn’t have the right to freely hire or fire individuals who were responsible for conveying the church’s message and carrying out its religious mission.
That view is a dramatic departure from established First Amendment jurisprudence. In fact, it’s such a departure, that the Supreme Court unanimously rejected that view, 9-0.
Likewise, the nominee’s views on the Second Amendment were radically out of step with the law. In the brief he filed in Heller, he argued “The Second Amendment does not protect an individual right to “Keep and Bear Arms” for purely private purposes.” He also argued that “the right protected by the Second Amendment is one that exists only in the context of a lawfully organized militia.”
The Supreme Court, of course, rejected that view as well.
Moreover, to date, the nominee has been unwilling to provide simple and straight-forward answers to a number of questions I’ve asked regarding a variety of legal issues.
For example, I’ve asked the nominee whether he believes that voter-ID requirements, which have been upheld by the Supreme Court in Crawford v. Marion County Election Board, are the modern-day equivalent of a poll tax.
I asked this question for several reasons. First of all, according to press reports, he said as much in 2005 during a discussion in Georgia regarding voter ID laws. According to press reports, he called a voter ID card “a modern poll tax.”
Second, this matters of course, because “poll taxes” are unconstitutional. But, the Supreme Court upheld Indiana’s voter ID law as constitutional in Crawford in 2008.
So, if the nominee continues to believe that voter-ID laws are the modern-day equivalent of a “poll tax,” and is firmly committed to that principle, I’m concerned he’d look for creative ways to undermine and challenge those laws, notwithstanding Crawford.
It goes without saying, of course, that a significant part of this job is the enforcement of voting-rights laws. That enforcement power should be entrusted only to someone we are confident will apply the law in an even-handed way.
I’ve also repeatedly asked the nominee whether, if confirmed, he’d commit to implementing the recommendations made by the Department of Justice’s Inspector General regarding the hiring processes in the Civil Rights Division.
That report exposed a hiring process that was structured in a way that systematically screened out conservative applicants.
But the nominee won’t commit to implementing the recommendations that would address those issues so the Office has the benefit of an ideologically diverse group of lawyers.
I find that concerning.
Again, this is a Division of the Department of Justice that needs a clean break from the political partisanship that plagued the Office under the last Assistant Attorney General.
Finally, I’d like to address Mr. Adegbile’s representation of Mumia Abu-Jamal.
To understand why the nominee’s involvement in this case is so concerning to many of us, a bit of history is in order.
Mr. Abu-Jamal is this country’s most notorious cop-killer.
The facts of the Abu-Jamal case are well known and never have been seriously disputed. Back in December 1981, Abu-Jamal – then known as Wesley Cook – gunned down Philadelphia Police Officer Daniel Faulkner.
Abu-Jamal first shot Officer Faulkner in the back, and then several more times in his chest at close range. As Officer Faulkner lay dying in the street, Abu-Jamal stood over him and shot him in the face.
At the hospital a short while later, Abu-Jamal boasted that he had shot a police officer and said he hoped the officer would die. Four eyewitnesses saw the shooting.
Ballistics evidence proved that Officer Faulkner had been shot with the .38-caliber revolver that was registered to Abu-Jamal and found at the scene along with spent shell casings.
No serious observer of this case can question the overwhelming evidence of Abu-Jamal’s guilt.
Based on that evidence, Abu-Jamal was tried. He was convicted. He was sentenced to death.
Nonetheless, over the course of the next 25 years, opponents of capital punishment and other critics of our justice system have elevated Mr. Abu-Jamal to celebrity status.
Those critics have charged that the conviction was tainted by racial discrimination. They’ve slandered police officers.
And they’ve leveled accusations of police abuse.
They’ve even organized rallies that portrayed Abu-Jamal as the victim. Amazingly, Mr. Abu-Jamal’s campaign has been somewhat successful. He has actually convinced a lot of people that he is a “political prisoner.”
And his fame isn’t confined to the borders of this country.
The French went so far as to name a street after him in a suburb of Paris.
In fact, the case became such a high profile issue that in 2006, the House of Representatives overwhelmingly passed a Resolution 368 to 31, condemning the murder of Officer Danny Faulkner and urging this French town to change the name of its street.
And I must say, the disgust with Mr. Abu-Jamal’s celebrity status isn’t defined by partisanship. In fact, five of today’s Senate Democrats were in the House of Representatives in 2006.
Four of the five Senate Democrats who were serving in the House in 2006 voted in favor of this Resolution.
In short, this case is about much more than hyper-technical legal challenges to the imposition of the death penalty.
It has become a cause.
So, it’s with that background that I’d like to discuss the nominee’s involvement in this matter.
In 2009, Mr. Adegbile was Litigation Director for the NAACP’s Legal Defense Fund. And it was in that role that he worked as an advocate on Abu-Jamal’s behalf.
The nominee and the Legal Defense Fund first got involved when they volunteered as an amicus, and then later as lead counsel in Abu-Jamal’s post-conviction proceedings.
In this first phase, LDF alleged that the Philadelphia prosecutors discriminated against African American jurors in the jury selection process during Abu-Jamal’s trial.
After the Third Circuit rejected that argument, the nominee submitted an amicus brief to the United States Supreme Court urging the Court to take the case, and hear the same arguments.
The Court declined to hear the case.
After this effort failed, in 2011, the LDF signed on as Abu-Jamal’s lead counsel for his post-conviction challenges.
It was at this point that Mr. Adegbile again challenged the conviction in the Third Circuit. But this time, under a different theory. The nominee argued that the jury instructions were constitutionally infirm. The Third Circuit agreed, and the Supreme Court refused to hear further argument.
Keep in mind that Abu-Jamal has never run the risk of lacking adequate legal advice: highly motivated attorneys, law professors, and legions of activists have represented him over the years.
They’ve filed literally hundreds of motions and briefs on his behalf.
So this isn’t exactly a case of Mr. Adegbile intervening to vindicate the rights of an indigent defendant who’d been denied a fair hearing.
Nor is this a case of the lawyer stepping in to defend an unpopular client who couldn’t otherwise find a lawyer.
This is NOT John Adams defending the British soldiers after the Boston Massacre.
That’s not what was happening here.
Mr. Adegbile’s first attempt to challenge the conviction was unsuccessful, so he redoubled his efforts and mounted a second challenge under a different theory.
This was a cause in search of a legal justification.
And we know this, of course, because the statements and press releases that LDF made at the time confirm this understanding.
Mr. Adegbile’s colleague and co-counsel explained the Legal Defense Fund’s motivation for getting involved in the case at a rally for Abu-Jamal in 2011. She said: “There is no question in the mind of anyone at the Legal Defense Fund that the justice system has completely and utterly failed Mumia Abu-Jamal and in our view, that has everything to do with race and that is why the Legal Defense Fund is in this case.”
In fact, when the LDF signed on as lead counsel in 2011, their press release declared “Abu-Jamal’s conviction and death sentence are relics of a time and place that was notorious for police abuse and racial discrimination.”
Again, this was a cause.
It was a cause premised on the notion that this country’s most notorious cop-killer, Mumia Abu-Jamal, was a victim.
And the police officers, prosecutors, and the entire judicial system – were to blame.
At bottom, that is why the law enforcement community is so staunchly opposed to this nomination.
That’s why the Fraternal Order of Police called this nomination a “thumb in the eye of our nation’s law enforcement officers.”
That’s why the Philadelphia District Attorney, Seth Williams, wrote this in his letter of opposition:
“Despite the overwhelming evidence of guilt, [his lawyers] have consistently attempted to turn reality on its head, arguing that Abu-Jamal was framed and that it was he, rather than Officer Faulkner, who was the victim of racism.”
District Attorney Williams went on to say that,
“Aside from being patently false, moreover, these claims are personally insulting to me. As an African American I know all too well the grievous consequences of racial discrimination and prejudice. I also know that Abu-Jamal was convicted and sentenced because of the evidence, not because of his race.”
And finally, that’s why Maureen Faulkner – whose husband was murdered by Abu-Jamal – wrote to this Committee asking to be heard.
That’s why she wrote this in her letter to the Committee:
“Officers who knew Danny, and who like him put their lives on the line everyday, must now witness Adegbile, 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. Adegbile as if he had done something wonderful.”
Mr. Chairman, I’ll end where I started.
I know Mr. Adegbile has worked on your staff. I’ve met him. I have no reason to believe he isn’t a man of great personal integrity. But, for the reasons I’ve outlined here, I can’t support the nomination. I just don’t believe he is the right nominee to lead this office at this time.
I will oppose his nomination and I urge my colleagues to do the same.