The piece of political theater that is Jeff Sessions’s confirmation hearing began with a pair of dissonant set pieces: At the back of the room, protestors dressed as Klansmen shouted their parodic approval of the Alabama senator; at the front, Trump’s pick for attorney general held his half-Asian granddaughter in his lap.
The images spoke to the central question looming over Sessions’s bid to become America’s top law-enforcement officer: If a Republican Senate deemed the man too racist to serve as a federal judge in 1986, why would a Republican Senate deem him fit to be chief federal prosecutor in 2016?
For Sessions and his defenders, the primary answer is that the Senate made a grievous error three decades ago, allowing the malicious fabrications of the far left to cloud their vision of the upstanding, egalitarian prosecutor seated directly in front of them.
But now, after serving in the Senate for 20 years — and working on the very committee charged with confirming his nomination — there is no risk that the Senate will mistake their sweet, fair-minded colleague as a man with white robes in his closet, his backers contend.
In their opening statements on his behalf, Judiciary Committee chair Chuck Grassley and Maine senator Susan Collins both testified to Sessions’s good character, with Collins saying that in the decades she had spent serving in the upper chamber with the Alabama senator, “I have never witnessed anything to suggest that Senator Sessions is anyone other than a dedicated public servant and a decent man.”
This emphasis on Sessions’s lack of conspicuous racial animus was meant to discredit claims to the contrary, which surfaced during his 1986 hearing. Then, Sessions’s Justice Department colleagues accused him of calling the NAACP “un-American,” referring to an African-American colleague as “boy,” and joking that he didn’t have a problem with the Ku Klux Klan “until I found out they smoked pot.”
Such overt expressions of racist (or, in the parlance of our times, “racially charged”) sentiments are more stigmatized in our society than the pursuit of policies that perpetuate racial disadvantage. Voting laws written with the intention of diminishing the political influence of black voters can be politely debated by reasonable people; the virtues of America’s most straight-laced Klansmen are not.
But Sessions’s record of supporting attacks on voting rights, draconian drug laws that disproportionately harm minority communities, the reinstitution of chain gangs, and hostility to the Obama administration’s efforts to rein in police abuse are, together, both more unambiguous than his private comments to colleagues and, at least potentially, more relevant to how he would carry out the duties of the office of attorney general.
In recognition of this fact, Sessions used his opening statement not only to condemn the “damnably false” allegations of his personal bigotry, but also reframed his record as a federal prosecutor and politician as one befitting an egalitarian anti-racist.
Sessions championed his role in the prosecution of two Klansmen who murdered an African-American man — emphasizing his choice to seek the death penalty against one of the perpetrators — while also highlighting his support for the desegregation of Alabama schools, and role in dismantling discriminatory election laws in his state’s “Black Belt.”
Sessions’s critics contend that he has exaggerated his personal involvement in all these efforts, many of which were spearheaded by other attorneys within his office.
Democratic Minnesota senator Al Franken took up this charge pointedly in the hearing’s most contentious exchange. Franken noted that in 2009, Sessions had claimed to have filed 20 or 30 civil rights cases to desegregate schools and other institutions. But in November 2016, the Alabama senator’s office claimed that he had filed merely “a number” of such cases. Franken demanded to know which it was — 20 to 30, or some other number?
“The records don’t show that there were 20 or 30 actually filed cases,” Sessions conceded.
Franken then turned his attention to a questionnaire Sessions had submitted to the committee, in which he was asked to list the ten most significant litigated matters he had personally handled in his career. Among those Sessions selected were four civil rights cases — three related to voting rights, one to school desegregation.
But a group of former attorneys in the Justice Department’s Civil Rights Division contested Sessions’s involvement in those cases, in an op-ed published by the Washington Post last week. On Tuesday, Franken referenced that column’s central claim:
We worked in the Justice Department’s Civil Rights Division, which brought those lawsuits; we handled three of the four ourselves. We can state categorically that Sessions had no substantive involvement in any of them. He did what any U.S. attorney would have had to do: He signed his name on the complaint, and we added his name on any motions or briefs. That’s it.
“Now, you originally said you personally handled three of these cases,” Franken reminded Sessions. “Are they distorting your record here?”
Sessions answered in the affirmative. But the essence of his rebuttal was that attorneys general frequently claim personal credit for cases in which they did not have substantive involvement.
“I provided office space, I signed the complaints,” Sessions said. “And, as you may know, Senator Franken, when a lawyer signs a complaint, he is required to affirm that he believes in that complaint, and supports that complaint, and supports that legal action.”
“So, that’s your personal involvement — that your name was on it?” Franken asked, in a tone that showed little deference to the concept of senatorial courtesy.
Sessions did not affirm or deny Franken’s summation.
As to the most conspicuous blight on his record — his unsuccessful prosecution of African-American activists engaged with voter-registration efforts on dubious charges of voter fraud — Sessions explained in his opening remarks, “The voter fraud case my office prosecuted was in response to pleas from African-American, incumbent elected officials,” and thus, characterized the prosecution as a testament to his commitment to voting rights.
Beyond his record on matters of racial justice, the extremity of Sessions’s broader political views was a liability that he and his supporters proved eager to account for. On the issues of immigration, criminal justice, and military torture, among others, Sessions has taken positions to the right of many in his own (reactionary) party.
The Alabama senator sought to diminish the relevance of these positions Tuesday by emphasizing the distinction between the role of legislator and that of a law enforcement officer.
“The Office of the Attorney General of the United States is not a political position, and anyone who holds it must have total fidelity to the laws and the Constitution of the United States,” Sessions said in his opening remarks.
Grassely hit an identical note at the hearing’s outset, saying, “ I know our colleague Senator Sessions respects the legislative process and the prerogative of Congress to write the law. As he explained during the confirmation hearing we held for John Ashcroft’s nomination to serve as Attorney General, ‘The Attorney General is a law enforcer. There is a big difference between a politician and a Senator where we vote on policy and executing policy.’”
Sessions referenced this conviction throughout the hearing, repeatedly declaring his commitment to honor the legality of abortion, despite his belief that Roe v. Wade was wrongly decided.
But while Sessions is unlikely to nullify Supreme Court decisions, the suggestion that his ideology will have no bearing on his performance as America’s chief law enforcement officer is transparently false. The United States has a lot of laws; many laws are ambiguously worded; the Justice Department has limited funds. These three facts give the attorney general the power to effectively dictate criminal justice policy in many areas.
When the Justice Department uses its discretionary power to relax immigration enforcement for children brought to America illegally, conservatives protest the politicization of the DOJ. But when the department uses its discretionary power to relax enforcement of civil rights laws protecting the urban poor against systemic discrimination by police, Republicans are more liable to appreciate the need to set enforcement priorities.
But in either case, the priorities of any given attorney general have the power to radically change the lived reality of millions of Americans.
Republican senator Orrin Hatch betrayed this fact, when he asked whether Sessions would commit to upping the enforcement of obscenity laws, in light of the public health crisis that is internet pornography.
Democratic senator Mazie Hirono made the point explicit, asking Sessions how he would use his prosecutorial discretion on a variety of issues, including immigration enforcement and voting rights.
On that latter subject, Hirono specifically asked whether Sessions would contest state-level voting laws that have a discriminatory impact on minorities, even if they were not enacted with a racist intent.
For decades, federal courts have interpreted Section 2 of the Voting Rights Act as prohibiting regulations that disproportionately burden minority voters, no matter the legislative intent. But many conservatives maintain that superficially, racially neutral restrictions — like the voter ID laws proliferating across GOP-controlled states — are kosher, so long as they weren’t passed by legislators who refer to the NAACP as un-American, or something.
Sessions told Hirono that he would challenge laws with discriminatory “problems,” but studiously avoided making any commitment to challenge ones with a discriminatory “impact.”
There is every reason to suspect that Sessions would see fewer discriminatory problems with voting laws than his immediate predecessors at the Justice Department. After the Supreme Court freed nine southern states from having to seek federal approval before altering their voting laws in 2013, Sessions hailed the decision as “good news, I think, for the South,” since “if you go to Alabama, Georgia, North Carolina, people aren’t being denied the vote because of the color of their skin.”
The Obama administration recently challenged a North Carolina voter identification law that it regarded as racially discriminatory, and the measure was struck down by a federal appeals court.
When Franken asked Sessions about that North Carolina law at Tuesday’s hearing, the Alabama senator reiterated his belief that laws “designed” to deny ballot access to “a class” of citizens are illegal — again, putting the emphasis on intent, rather than impact.
Another area in which Sessions’s prosecutorial discretion will prove critical is federal enforcement of the prohibition of marijuana, which remains a Schedule 1 substance even as eight states have fully legalized the drug, and 28 have approved it for medical use.
While Sessions is a deep believer in a state’s right to set its own voting laws, he has previously argued that the federal government has an overriding obligation to put people in cages for selling a substance less dangerous than alcohol.
During Senate confirmation hearings for current attorney general Loretta Lynch, Sessions suggested that he viewed opposition to state-level legalization as a core responsibility of America’s top prosecutor.
“I hope that you will cease to be silent, because if the law-enforcement officers don’t do this, I don’t know who will,” Sessions said. “And in the past, attorneys general and other government officials have spoken out and I think kept bad decisions from being made.”
And during a Senate hearing on the federal response to state-level cannabis laws, Sessions called on the government to foster the “knowledge that this drug is dangerous, you cannot play with it, it is not funny, it’s not something to laugh about … good people don’t smoke marijuana.”
On Tuesday, Democratic senator Patrick Leahy asked whether Sessions would “use our federal resources to investigate and prosecute sick people using marijuana in accordance with state law even though it might violate federal law?”
“I won’t commit to never enforcing federal law,” Sessions replied, while saying that he respected some of the DOJ’s present guidelines for federal enforcement, but thought there were also valid criticisms of the Obama administration’s handling of the issue.
He did not specify which aspects of the current policy he would change.
At times, Sessions attempted to reframe his more extreme ideological positions, rather than merely arguing for their irrelevance.
In 2015, Sessions voted against a Senate resolution urging that prospective immigrants not be subjected to a religious test. He has also praised the Immigration Act of 1924, which banned Asians and Arabs from immigrating to the United States.
On Tuesday, Sessions clarified that he did not support an outright ban on Muslim immigration, but merely hopes that “we can keep people out of the country who wants to kill everybody because of their religion.”
Sessions critics are unlikely to be persuaded by the senator’s showing. But Sessions’s Republican colleagues — which is to say, the only people whose opinions will matter at the end of the day — appeared impressed with his performance. (Democrats will not be able to filibuster Sessions’s nomination.)
“We’re about to get an answer to the age-old question: Can you be confirmed as attorney general of the United States over the objections of 1,400 law professors,” South Carolina senator Lindsey Graham said, referencing a letter denouncing Sessions, signed by a group of legal scholars from every state in the union save Alaska. “I don’t know what the betting line in Vegas is, but I like your chances.”