On Friday, President Obama nominated a candidate to head the Department of Justice Civil Rights Division with sterling credentials. Debo Adegbile has years of civil rights litigation experience, and rose to become the NAACP Legal Defense Fund’s Acting President & Director-Counsel. He also has government service under his belt, as now-senior counsel to the Senate Judiciary Committee, years of experience as a corporate lawyer, and was the only African American to argue before the U.S. Supreme Court last term. But the same qualities that make Adegbile extraordinarily qualified is what could make Senate confirmation treacherous. He fought for civil rights.
The last person to lead the Civil Rights Division, Tom Perez, was spared from permanent filibuster and confirmed by this Senate as Secretary of Labor only after Democrats brokered a deal and agreed not to seek a permanent end to this sort of filibuster in confirmations. Perez, like Adegbile, has been outspoken and aggressive in pursuing justice — a quality that has threatened his viability as a political appointee.
Among the items on Adegbile’s resume are his two-time defense of the Voting Rights Act before the U.S. Supreme Court. U.S. Attorney General Eric Holder has pledged to defend what’s left of that act vigorously, and the person who leads the Civil Rights Division would lead the fight to make that happen. That, unfortunately, may be why Republicans will fight twice as hard to oppose Adegbile’s nomination. In the wake of the U.S. Supreme Court ruling that invalidated the formula for determining what jurisdictions are subject to federal “preclearance” of voting changes, Republicans have taken every opportunity to exploit what was a procedural loss as an opportunity to gut the landmark civil rights legislation’s substantive guarantees, re-instating suppressive voting laws within hours and days of the ruling. Sen. Chuck Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee that must hold hearings and vet Adegbile before he goes before the Senate, went so far as to suggest the Voting Rights Act should contain a carve-out that protects voter ID laws from constitutional scrutiny.
The irony is that the deal that secured Perez’s confirmation as Secretary of Labor also averted a drastic move that could have once and for all ended the mechanism senators have for holding up nominees with broad support. Adegbile, like most of Obama’s nominees, could easily secure confirmation by a majority vote. But through procedural mechanisms, the party that controls neither the White House nor the Senate can hold his nomination hostage. Even when the senate majority leader calls a vote on a nominee, senators can block that vote with just 40 supporters in favor of obstruction.
This fight over what is known as the nuclear option could come to a head as early as today, when senators decide whether to hold a vote on Obama’s nominee to the U.S. Court of Appeals for the D.C. Circuit, Robert Wilkins. Republicans pledged to block three nominees to the powerful federal appeals court, hiding behind the claim that the court doesn’t need anymore judges. Thus far, they have kept their pledge, filibustering the first two of the three judges. And a filibuster of the third should trigger a pledge by Democrats to go “nuclear” and move to allow confirmation of nominees (at least judicial nominees) by a simple majority vote. This sort of reform would have a much larger long-term impact than another deal to fill vacant government jobs, and if it applied to executive nominees, could mean a dramatically easier road to confirmation for outspoken leaders like Adegbile.