You might not have heard, but Pennsylvania senators Bob Casey and Pat Toomey may be forging a new bipartisan consensus on who should run our justice system: either people who hold deeply conservative principles, or no one at all.
Last month, Casey and Toomey led a Senate vote rejecting President Obama's nominee to head the Justice Department's civil-rights division, Debo Adegbile. Adegbile's sin? While at the NAACP, he wrote a legal brief for Mumia Abu-Jamal, who was convicted of murdering Philadelphia police officer Daniel Faulkner.
Adegbile's argument — that Abu-Jamal's jury was discriminatory — was ultimately seconded by a judge. Before the Senate's vote, the head of the American Bar Association said Adegbile's brief "should be commended, not condemned." But not, apparently, if you're defending the rights of unpopular people: Casey explained his opposition to Adegible by noting Faulkner's death "and the events that followed ... have left open wounds."
Adegbile "promoted division among the American people, and blocked justice for [Faulkner's] family," said Toomey.
But according to liberal group Keystone Progress, Toomey and Casey have been planning to grant a federal judgeship to a Pittsburgh attorney ... despite criticism that he may be divisive, too.
In late March, Keystone Progress raised flags about a purported "backroom deal" to make David J. Porter a federal district court judge. Citing unnamed sources, it claimed that Republicans agreed not to block three Democratic judicial nominees if Casey signed off on Porter — whom Keystone Progress calls a "Tea Party lawyer." (While the full Senate must approve judicial nominations, it typically defers to senators from the state where a judge will serve.)
Such horse-trading happens all the time, Keystone Progress head Michael Morrill acknowledges, and a three-for-one deal doesn't sound bad. But he argues Porter is a special case — one whose career "is almost a mirror image of the work I do" as an activist. "And I know I don't have a judicial temperament."
Porter, an attorney with Buchanan Ingersoll, heads a Pittsburgh chapter of the Federalist Society, a self-described "group of conservatives and libertarians" opposed to "orthodox liberal ideology" in the law. He's represented former Sen. Rick Santorum and penned a Pittsburgh Post-Gazette editorial dubbing "Obamacare" unconstitutional. Morrill also notes that Porter's name appears on a website touting the "Pennsylvania Justice Network," whose members opposed the nomination of Supreme Court Justice Sonia Sotomayor.
There's been no official confirmation of a Porter deal: Casey and Toomey aren't commenting. Neither is Porter. "It's a confidential process," he told City Paper. "Or it's supposed to be."
Porter's online corporate biography also boasts of representing The New York Times — hardly a Tea Party journal — and it's unclear if the "Pennsylvania Justice Network" amounted to anything more than a webpage. Still, Porter's conservative credentials seem clear, and online petitions opposing his nomination have garnered 32,000 signatures. "People realize that something has really changed in our body politic, if someone this extreme can get a nomination," Morrill says.
Not everyone agrees. "Even if everything they say about [Porter] is true, it's not that significant," says Bruce Ledewitz, a Duquesne University law professor who often comments on law and politics. The real power in the federal judiciary, he said, is on appeals courts: "You don't make law at the district court level" where Porter would serve. "You apply it as written."
If anything, he surmises, "I think [Porter] has come up because of anger over [Adegbile]: ‘Why are we making deals with these people, when they turn on an honorable man this way?'"
Ledewitz himself calls Adegbile's treatment "despicable. ... The idea that a lawyer is tainted by representation in death-penalty cases is disgusting." But as Congressional gridlock has left empty federal courtrooms across the state, Ledewitz says, "I can understand Sen. Casey making this deal."
Trading sacrificial lambs may be less worthwhile than swapping judges. But if Adegbile can be dismissed for taking on a divisive case — which is what lawyers do — why should Porter get a pass? Casey was elected largely because he wasn't Rick Santorum: If he's worried about "open wounds," why grant a judgeship to Santorum's lawyer?
After all, Porter could always run for elected office himself, where voicing strong principles can actually help. As long as you're a Republican.