Civil Rights Filibuster Could Have Chilling Effect On Tomorrow’s Lawyers

On November 27, 1770, John Adams began the most important trial of his legal career. His clients were eight British soldiers who, when confronted by an angry gathering of Boston patriots, fired into the crowd, killing five. The soldiers were accused of murder and threatened with the death penalty. Adams was a patriot, openly and adamantly opposed to British occupation of the colonies, with no love of the British army. He took the case, which he called “one of the best pieces of service I ever rendered my country,” because in this nation, even before its founding, every accused criminal is entitled to zealous legal defense.

On Wednesday afternoon, the Senate blocked the confirmation of Debo Adegbile President Obama’s nominee for Assistant Attorney General for Civil Rights. Every Senate Republican voted against Adegbile’s nomination. They were joined by eight Democrats: Senators Casey, Coons, Donnelly, Heitkamp, Manchin, Pryor, and Walsh. The main charge against Adegbile is that, during the ten years he worked with the NAACP, he worked on a brief that successfully commuted the death sentence given to Mumia Abu-Jamal, a man convicted of murdering a police officer thirty years ago.

Sen. Casey said in a statement explaining his vote: “I respect that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime.” It is difficult if not impossible to reconcile this statement with his vote against Mr. Adegbile. The right of every citizen to competent legal representation simply cannot survive in a climate where politicians punish lawyers for the acts of their worst, most despised clients.

The United States is and will remain a nation of laws and not of men. This country values life and liberty above all things, and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution guarantee that life and liberty cannot be taken away without due process of law, a fair trial, and competent legal counsel. No matter the alleged crime or offense, everyone in this country is entitled to a lawyer.

Our justice system is fundamentally flawed, and many of the cracks and imperfections manifest in stark racial and economic disparity. The United States has 25 percent of the world’s prisoners in its jails and prisons. The number of prisoners in U.S. jails rose 700 percent between 1970-2005. More that 60 percent of U.S. prisoners are racial and ethnic minorities. Pubic defenders’ offices nationwide handle more than 5 million cases each year.

Men and women like Adegbile spend their careers trying to fix these cracks and imperfections, striving to make sure that American citizens are only punished after they have been found guilty beyond a reasonable doubt by a jury of their peers, are only executed after having exhausted all appeals, and not a moment before hand. They throw their bodies between a prosecutor and their client so that the government must move mountains of incontrovertible evidence before it can take the life and liberty of a citizen. They are paid next to nothing, they work excruciating and unforgiving hours, and they go to work each day representing the people who can afford no other defense, who no one else will help.

They do these things not necessarily because they believe in the virtue or innocence of every client. Rather, they go to work every day because they understand that the only way to ensure that the rights and freedoms of virtuous men and women are not taken away without cause is to fight for the rights and freedoms of every person, regardless of crime or character.

I am currently a second year student at Harvard Law School. I go to school with some of the brightest young legal minds in the country, with the men and women who will undoubtedly shape the laws and legal institutions of the United States.

My classmates think seriously about what doors their choices will open and close. It’s incredibly hard to sell my friends on spending our careers like Adegbile knowing that it is now the practice of the United States Senate to punish public service.

There are already tremendous barriers to such a career. My school, like so many other prestigious institutions, is designed to be a waterslide to big law firms in New York, Washington D.C., Chicago, and Los Angeles. The vast majority of my classmates will end up in corporate law, eschewing a chance to make their living working for the common good. The choice is simple and understandable: corporate firms pay roughly three times what a first-year lawyer can receive in a public interest job, these jobs are secured during the summer of your second year, and they provide incredibly enticing job security in an increasingly competitive and precarious legal market.

Even my classmates who want to go into public service are wary of indigent criminal defense. They worry about the hours, the stress, and the compensation. They worry about being responsible for whether or not their clients spend their lives in jail. They worry about job security in a political climate where budgets in public defenders’ offices are routinely slashed. And they worry that the acts of their worst clients – the murderers, the rapists, the child molesters – will be held against them by their friends and family, by voters, and now by legislators in Congress.

So, the sell has just gotten harder. The Senate has sent an unequivocal message: that lawyers must beware of whom they represent. Should they have the opportunity to serve their country in high office, the men and women in the Senate will judge them not by their actions, not by their character, not by their achievements, but instead by the reputations and crimes of their clients.

In the aftermath of the Senate vote to block Adegbile’s nomination, I am left with only questions for the Senators who voted no.

What should I tell my classmates who are considering a career in indigent criminal defense? Should I tell them that they should not spend their lives representing the wretched, the despised, the friendless, for fear that they will be judged by people like you? How can we ensure everyone gets a zealous defense when lawyers are condemned for public service?

And while we’re at it, would you have voted against John Adams for defending the British soldiers that fired into the crowd during the Boston Massacre? Would you have voted against Thurgood Marshall for his defense of young black men accused of murder? Did you vote against John Roberts for representing eight-time murderer John Errol Ferguson? Does your humanity not teach you that the despised and the rejected are the most in need of help, compassion, and counsel?

We need our young lawyers to aspire to be the next John Adams and we must ask ourselves, in light of the Senate’s decision, how many will be willing to play that part. The number of lawyers who will stand and fight for those that society has condemned and who cannot advocate for themselves – already too few – will become vanishingly small. The Senate has told young lawyers that they must cast aside personal goals and ambitions if they choose to dedicate their careers to the belief that every citizen is entitled to a fair trial and a vigorous defense.

The Senate has raised the cost of such patriotism. I can only hope that there are those who remain willing to pay.

Sam Wheeler is in his second year at Harvard Law School.

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