NRO's Whelan Suggests Civil Rights Work Doesn't Qualify Attorneys For Appointment To Important Court

Blog ››› ››› ADAM SHAH

In a blog post yesterday, National Review Online's Ed Whelan reported that "President Obama is on the verge of nominating NAACP Legal Defense Fund lawyer Debo P. Adegbile to the D.C. Circuit," a court that is often called the second most important court in the land. Whelan then proceeded to suggest that Adegbile is unsuited to the job, based solely on Adegbile's having been a lawyer at a prominent New York law firm and then an attorney at the NAACP Legal Defense and Education Fund.

After noting that Adegbile had worked for seven years for the New York City law firm of Paul, Weiss, Rifkind, Wharton & Garrison and has since spent a decade working for the NAACP Legal Defense Fund, Whelan acknowledged that he had "never heard of Adegbile." He then pronounced it "odd" that Obama had nominated Adegbile and another person to the D.C. Circuit, both of whom he described as "New York lawyer[s] with no significant background in federal administrative law (and no judicial experience to offset that deficiency)."

Whelan concluded his short post by saying that "[t]his may well be a pick more designed to excite Obama's left-wing base than to produce a confirmation."

Why should someone with seventeen years of experience as a litigator, including a decade as a civil rights attorney, not be considered the right fit for the D.C. Circuit? After all, Adegbile is no stranger to federal court litigation. A Lexis search shows that he has worked on cases at all levels of the federal system throughout the country -- including in D.C. -- since at least 1996.

Can one really say Adegbile is less qualified than Judge David Sentelle, a D.C. Circuit judge nominated by President Ronald Reagan who, at the time of his nomination, had worked for roughly 10 years in private practice in North Carolina, four years as an assistant U.S. attorney in North Carolina, three years as a North Carolina state trial court judge, and a little more than a year as a federal judge in North Carolina?

What about Judge Janice Rogers Brown, a D.C. Circuit judge nominated by President George W. Bush whose experience consisted almost exclusively of work as a California state employee and California state court judge? Did that really prepare her for the D.C. Circuit?

Or is just that Adegbile's civil rights experience is particularly disfavored in Whelan's view?

If so, history is not on Whelan's side.

Judge Spottswood Robinson, the first African American appointed to the D.C. Circuit, had never been a judge at the time of his appointment. Furthermore, Robinson, like Adegbile, was an NAACP-LDF lawyer for a portion of his career. Robinson also worked for the NAACP. Justice Ruth Bader Ginsburg was a New York lawyer who had never been a judge before she was nominated to the D.C. Circuit and spent a significant portion of her pre-judicial career as counsel for the ACLU's women's rights project and general counsel for the ACLU.

Whelan appears not to be a fan of Ginsburg, but few would argue that she was unqualified for the job.

Finally, Whelan raises one more red herring that should be addressed: the fact that Adegbile is not a D.C. resident.

For all the other circuits, Congress has stated that "each circuit judge shall be a resident of the circuit for which appointed at the time of his appointment." But Congress has explicitly said that this rule does not apply to the D.C. Circuit. That's why President Ronald Reagan was able to appoint a University of Colorado professor of law, a North Carolina judge, and a University of Chicago professor of law (albeit, with significant D.C. experience) to the court. It's why President George H.W. Bush was able to appoint a South Carolina judge to the court. And it's why President George W. Bush was able to appoint a California judge to the court.

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