Attorney Dan Krisch
Attorney Dan Krisch ()

I am thinking in two places at once this week.

Like many members of the bar, I am outraged that the U.S. Senate refused to confirm Debo Adegbile as head of the Justice Department’s Civil Rights Division because he committed the grievous sin of representing an unpopular client. At the same time, I find myself amused by (and, shockingly, agreeing with!) Justice Antonin Scalia’s concurrence in Lawson v. FMR LLC—a pithy shot across the bow of that tired and overloaded vessel, the S.S. Legislative History.

To serious matters first: On March 5, the Senate rejected Adegbile, the onetime head of the NAACP Legal Defense Fund and by all accounts an exemplary lawyer, by a 52-47 vote. Seven Democrats (several from states where Obama is a curse word to a majority of the populace) and every Republican senator voted against Adegbile’s confirmation. His great crime? When Adegbile ran the LDF, it filed an amicus brief in support of, and later represented, convicted cop-killer Mumia Abu-Jamal.

Several dissertations could be (and probably have been) written about the controversy that surrounds Abu-Jamal’s trial, conviction and the eventual commutation of his death sentence. Abu-Jamal is a cause celebre for both the left and right and I lack the knowledge to venture into the treacherous swamp of his case. But one does not have to believe in Abu-Jamal’s innocence to believe that it is destructive of our justice system and our ideals to confuse him with his lawyer and to damn his lawyer for having represented Abu-Jamal zealously. As if it would harm the Civil Rights Division to be run by an attorney who represents his clients with passion and skill!

Indeed, what disturbs me almost as much as Adegbile’s unjust treatment is the way some of his supporters minimized his involvement in Abu-Jamal’s case. Instead of harping on the fact that Adegbile was not on Abu-Jamal’s legal team, or that the LDF did not become involved in the case until 2006, Adegbile’s advocates would have done better to boast of the connection. I’ll admit that this may, at first blush, seem politically naïve, but distancing Adegbile from the LDF’s representation of Abu-Jamal made it seem something shameful instead of the shining example of America’s greatest strength—due process for all—that it should have been.

Unpopularity has ever been the fate of lawyers. In “A Distant Mirror,” Barbara Tuchman’s classic study of 14th-century Europe, she notes that during the Peasants’ Revolt, the mob killed every lawyer that it encountered on its rampage from Kent to the outskirts of London. Far be it from me to call the Senate a mob, but it seems not much has changed in seven centuries: Lawyers remain convenient lightning rods for rage at the deeds of their clients.

Perhaps I should simply follow Scalia’s lead and stop trying to figure out what makes Congress tick. In Lawson, the court wrestled with the difficult question of whether the Sarbanes-Oxley Act protects whistleblower employees of private contractors that do business with publicly held companies. While Scalia agreed with the majority that Sarbanes-Oxley does protect such employees, he took the majority opinion (authored by his sometime-opera-and-poker buddy, Justice Ruth Bader Ginsburg) to task for its “occasional excursions beyond the interpretative terra firma of text and context, into the swamps of legislative history.”

Leave it to Scalia to eschew “dry land” for “interpretative terra firma.” (Perhaps someone should send him a copy of Richard Wydick’s “Plain English for Lawyers”?) Florid prose aside, what makes his concurrence so significant is that he does not limit his contempt for legislative history to the specific issue in Lawson—instead, he proposes to throw the whole Congressional Record out with the bathwater.

In Scalia’s view, “congressional intent apart from enacted text is fiction” that rests on “several frail premises.” First, laws don’t mean what Congress intended; they mean what they say, period; second, that Congress as a body can have a collective “intent,” in spite of the likely fact that most senators and representatives either had no such intent, or did not share the intent of their fellows; third, if such intent exists, that testimony before a congressional committee, or the floor statement of a bill’s sponsor, is evidence of it.

To support his third point, Scalia quotes a statement by Sarbanes-Oxley’s lead sponsor in the Senate that directly contradicts the majority’s selective reliance on the act’s legislative history. The fortuity of such embarrassing proof aside, Scalia’s point—we Connecticut folk might call it the Gospel According to 1-2z—is a persuasive one: What goes into the process of making a law often bears little to no resemblance to the law itself. A thought worth remembering the next time the meaning of a statute is at issue.•