Setting aside everything that transpired over the 10 years leading up to the Democratic Party's elimination of the filibuster for executive nominations -- the extraordinary surge of filibusters, the erosion of informal agreements to limit obstruction, the GOP's adoption of the filibuster as a tool of nullification -- senators of both parties generally abided by one rule.
Though in most cases senators have always been able find something in a nominee's record to complain about, legal associations with criminal clients have generally been held fairly sacrosanct.
Part of the reason is that the Senate is brimming with lawyers, and many of their friends and close associates -- or perhaps they themselves -- have represented clients who've been charged with terrible things.
But that's only the case because lawyers, more than most, take the principle that anyone who faces conviction deserves a competent defense very seriously. If representing someone who did terrible things becomes a professional liability, that principle becomes endangered.
That's why the current chief justice of the Supreme Court was confirmed overwhelmingly in 2005 despite having defended a man who was recently executed for murdering several people. If this ad hominem principle didn't exist, Americans Fore Prosperitee would've run misleading 30-second ads in 1860 attacking Abraham Lincoln for getting Duff Armstrong acquitted of murder just two years earlier.
But that all changed on Wednesday when a handful of Senate Democrats joined the entire Republican Party and rejected Debo Adegbile's nomination to run the Justice Department's Civil Rights Division. Not because his policy views are troubling or because he lacks qualification, but because he participated in the legal defense of convicted cop killer Mumia Abu-Jamal. Specifically, he headed an NAACP Legal Defense Fund team that successfully kept Abu-Jamal off death row, and, along with other LDF lawyers, filed an amicus brief with the Supreme Court alleging bias and racial discrimination in Abu-Jamal's jury selection process.
If you're a talented young lawyer with lofty public-service ambitions the lesson here is don't affiliate yourself with advocacy groups, don't take pro bono cases, keep your nose buried in corporate work. If you honor your juridical duty to ensure that even monsters receive fair hearings you will be accused of coddling them.
So what happened? Why did this ad hominem principle get tossed out the window?
Part of it is just that Abu-Jamal is one of the most controversial and politically toxic criminals in the country, which meant law enforcement organizations everywhere aligned against Adegbile's nomination and drew no comparable countervailing pressure. Relatedly, and ironically, the abolition of the filibuster prompted a reallocation of liberal resources away from organizing on behalf of Obama nominees in general. If they can all be confirmed with 51 votes, and Democrats have 55, what's the point? (As a journalist, I was susceptible to the same logic. After Harry Reid invoked the nuclear option, I devoted significantly less of my attention to covering confirmation fights.)
But an inescapable difference between the Adegbile and Roberts confirmation battles is that Adegbile, like his former client, is black, and Roberts is not. Legal conservatives (whose true objections to Adegbile are probably a bit more nuanced) advanced the cause of denying Adegbile confirmation by stoking white racial panic. The stories they planted in the conservative press were often infused with paranoid assertions and innuendo. Adegbile, we were told, "would bring a radical record on racial issues to his new job, which is responsible for enforcing federal discrimination statutes."
"Should government force businesses to hire felons?" one baseless headline asked. "Obama nominee Debo Adegbile says yes."
Republican senators -- including elite lawyers -- picked up the mantle.
They aligned against Adegbile almost instantaneously. GOP operatives implicitly promised to Willie Horton any Democrats who voted for him. And in a challenging election cycle, with a margin of error of five, Democrats -- including ones that should have known better -- began to peel off.
Race even partitions the purple-state Democrats who controlled Adegbile's fate. Two of the vulnerable, in-cycle Dems who voted for him -- Kay Hagan, D-N.C., and Mary Landrieu, D-La. -- represent disproportionately black states, with among the largest black populations in the country. Of the seven Democrats who voted against Adegbile, two were from the part of the country where Abu-Jamal murdered Daniel Faulkner, and four -- John Walsh, D-Mont., Heidi Heitkamp, D-N.D., Joe Manchin, D-W.Va., and Joe Donnelly, D-Ind. -- represent unusually white populations.
They were, of course, more discreet in their opposition than Ted Cruz was. But the principle at stake was enormous. In a blistering statement after the vote failed, Obama called it "a fundamental principle of our system of justice." That several Democrats were willing to jettison that principle in this instance suggests at the very least that, in spite of all that's changed in the country, race baiting can still scare Democrats into doing the wrong thing.