WASHINGTON — President-elect Donald Trump marked the advent of what many predict will be a new era in civil rights and criminal-justice enforcement with his nomination of Sen. Jeff Sessions, R-Ala., for U.S. attorney general.
A former prosecutor and attorney general for the state of Alabama, Sessions, 69, is serving his fourth term in the U.S. Senate.
There, he has built a legacy as a fierce opponent of abortion and an advocate for religious freedom. Meanwhile, he has criticized the Obama administration’s immigration policies and supported the right of states to enforce their own marriage laws, after the Obama administration in 2011 refused to defend part of the Defense of Marriage Act (DOMA), which defined marriage, for the purposes of federal law, as a union of one man and one woman.
“Jeff has been a highly respected member of the U.S. Senate for 20 years,” said Trump in a statement announcing Sessions’ nomination. “Jeff is greatly admired by legal scholars and virtually everyone who knows him.”
The first sitting senator to endorse Trump, Sessions became a close adviser of the real estate tycoon as he completed the transition from political outlier to presidential nominee. If Sessions is confirmed, he will help secure the new president’s most critical goals, including the confirmation of a pro-life U.S. Supreme Court justice.
“His priority will be to staff the Department of Justice with people who are committed to limited constitutional government and dedicated to professionalism,” said Leonard Leo, the executive vice president of the Federalist Society, an organization that promotes an interpretation of the U.S. Constitution based on the original intent of the Founding Fathers and has played a role in the appointment of judges who share this philosophy.
“The next order of business will be to assist with the confirmation of the new Supreme Court justice,” said Leo, who met with Trump on Nov. 16 to discuss his plans for the high court.
The looming battle to confirm Trump’s choice to replace Justice Antonin Scalia, who died earlier this year, will garner enormous attention. But Leo told the Register that Sessions’ appointment is also a critical first step for a new administration.
“The attorney general is, in many ways, the government’s lawyer,” he noted. “He can create a culture within the government and has an opportunity to instill a respect for our structural constitution — the idea that there are discernable limits on government power and those limits need to be respected and honored.”
Indeed, Democrats and Republicans expect Sessions to reverse the direction of the Justice Department, which in recent years has responded aggressively to allegations of police misconduct and discrimination against the LGBT community, but has discouraged enforcement of immigration laws that can result in the deportation of undocumented immigrants.
Sessions, like many Senate Republicans, has argued that Obama’s immigration policies circumvented the will of Congress. In consequence, while Sessions voted for the confirmation of Eric Holder, Obama’s first U.S. attorney general, he opposed the president’s second choice, Loretta Lynch.
“Ms. Lynch has said flat-out that she supports those policies and is committed to defending them in court,” Sessions said at the time of her confirmation hearings.
“We do not have to confirm someone to the highest law enforcement position in America if that someone is publicly committed to denigrating Congress.”
Legal specialists who cite Obama’s immigration policies, among other regulations, as an example of gross presidential overreach expect swift changes at the Justice Department.
“The Department of Justice has been deeply politicized over the past eight years,” Ed Whelan, the president of the Ethics and Public Policy Center and an authority on constitutional law, who blogs at National Review’s “Bench Memos,” told the Register. “Attorney General Sessions’ biggest challenge will be to restore the rule of law within the Department of Justice.”
But Anthony Romero, the executive director of the American Civil Liberties Union, took a harsh view of Sessions’ nomination, a stance that was echoed by homosexual-rights organizations, Planned Parenthood and immigration groups.
In a statement, Romero said Sessions’ “positions on LGBT rights, capital punishment, abortion rights and presidential authority in times of war have been contested by the ACLU and other civil-rights organizations.”
“As the nation’s highest-ranking law enforcement official, the attorney general is charged with protecting the rights of all Americans, yet Sessions has a reported history of making racist comments,” Romero said. “In his confirmation hearings, senators, the media and the American public should closely examine his stances on these key issues to ensure we can have confidence in his ability to uphold the Constitution and our laws on behalf of all Americans.”
Romero’s reference to “racist comments” made by Sessions dates back to allegations that surfaced during 1986 Senate hearings for his confirmation as a federal judge. At that time, he was also strongly criticized for suggesting that the ACLU and the NAACP were "un-American."
“Thomas Figures, a black assistant U.S. attorney who worked for Sessions, testified that Sessions called him ‘boy’ on multiple occasions and joked about the Ku Klux Klan, saying that he thought Klan members were ‘OK, until he learned that they smoked marijuana,’” reported CNN after Sessions’ nomination as U.S. attorney general was announced.
Sessions strongly denied that he held racist views and described such testimony as an unfair “caricature” of his positions. But he was not confirmed.
Claims of Racism Refuted
At the time of his 1986 confirmation hearings and now, in the wake of his nomination as U.S. attorney general, Senate Republicans and others have rejected the suggestion that Sessions is racist, pointing to his concerted campaign against the Ku Klux Klan in his state and his efforts to make penalties for crack cocaine more equitable, a shift that helped African-American communities disproportionately affected by the scourge.
As a U.S. attorney, Sessions “prosecuted the head of the state Klan, Henry Francis Hays, for abducting and killing Michael Donald, a black teenager selected at random. Sessions insisted on the death penalty for Hays,” noted a recent Townhall.com article that reviewed Sessions’ record on race issues.
“The successful prosecution of Hays also led to a $7-million civil judgment against the Klan, effectively breaking the back of the KKK in Alabama.”
George Terwilliger III, a lawyer who served as deputy attorney general and as acting attorney general during the George H.W. Bush administration, and who has known Sessions for more than three decades, challenged the ongoing attempt to frame the nominee as an enemy of African-Americans.
“There is a whole upside, both professional and personal, that undermines any … inferences that others are trying to draw from these alleged remarks,” Terwilliger told the Register.
Terwilliger got to know Sessions when both men were U.S. attorneys, and, subsequently, Terwilliger was promoted to deputy attorney general.
“I feel like I know the man and his character, and I think it is exemplary,” said Terwilliger, who said he was impressed with Sessions’ response to the 1986 Senate hearings that attacked his character and legacy. “There are a lot of people of weaker bone and less character who would have been crushed by what happened to him in the Judiciary Committee hearings.”
“Instead, he reacted in an incredibly brave and resolute way to demonstrate that he was not the person he was made out to be,” Terwilliger said, “and did not sour on public service.”
Asked to comment on claims by the ACLU and other advocacy organizations that Sessions would roll back Obama's policies that benefited minorities and other vulnerable groups, Terwilliger emphasized that it was “not the attorney general’s job to necessarily defend categories of people. It is his job to enforce the law as Congress has determined it, whether that’s civil-rights laws, immigration laws … or others in the scope of federal responsibility.”
“There has been a strong political agenda in the actions of the Justice Department in recent years, aimed at what some Democrats believe to be part of their core constituency. It remains to be seen whether that core constituency will hold.”
Terwilliger’s remarks highlight the perception among Republicans that the Justice Department has become overly invested in ideological identity politics and abortion-rights advocacy, and the dueling reactions to Sessions’ nomination from Planned Parenthood and pro-life activists reinforce that perception.
“Trump just tapped anti-abortion, anti-Planned Parenthood Sen. Jeff Sessions to be Attorney General. Think he’ll keep you safe? Think again,” tweeted Planned Parenthood.
‘Planned Parenthood Must Be Held Accountable’
Meanwhile, Live Action, a pro-life organization that has attacked the Obama administration’s failure to crack down on Planned Parenthood’s alleged trafficking in fetal body parts, applauded Sessions’ nomination.
“Planned Parenthood must be held accountable, and its partisans must be taught that their ideological biases are not a moral license to ignore horrific crimes committed by groups they like,” read a Live Action column. “Here’s hoping that Attorney General Jeff Sessions gives them that wake-up call.”
Teresa Collett, a professor at the University of St. Thomas’ law school, said she hopes Sessions will address additional issues of concern to the pro-life movement, including the Obama administration’s controversial interpretation of the Weldon Amendment, which secures conscience protections for health care providers who oppose abortion. She pointed to the administration’s recent dismissal of a complaint filed by California pro-life organizations, which argued that a state law requiring every insurance carrier to cover elective abortion violated the Weldon Amendment.
The state law was in “direct violation of the explicit language of the Weldon Amendment, yet the Obama administration, through various problematic interpretations, found that California was not in violation,” said Collett.
She predicted that conscience rights will emerge as an important issue for a Trump White House, given evangelical Christian voters’ concerns about protecting the rights of small business owners who oppose the redefinition of marriage and do not want to participate in the wedding of a same-sex couple.
However, Douglas Laycock, an authority of religious-freedom issues at the University of Virginia Law School, noted that legal challenges to laws penalizing florists and photographers who oppose “marriage equality” are at the state level, thus limiting Sesssions'power to defend Christian florists and photographers who have sought a reprieve in the courts.
"The cases against wedding vendors are all brought under state law," Laycock told the Register.
In contrast, the resolution of legal challenges to the Health and Human Services contraception mandate could come quickly, thus rewarding the patience and unity of U.S. bishops, who refused to back down from their 4-year confrontation with the Obama White House over its refusal to provide a broad religious exemption to the federal rule.
Meanwhile church leaders have stepped up their defense of undocumented immigrants, who fear that Trump will fulfill his campaign pledge to deport millions of those who entered the country illegally. While Collett could not confirm Trump's plans, she expects he will adopt a more nuanced position, at least initially.
“People who entered the country illegally and have a history of engaging in violent crimes will be the priority. I don’t know many Americans of goodwill who disagree with that agenda,” said Collett, who acknowledged that the larger debate over immigration reform has yet to be resolved.
Will He Be Confirmed?
Collett was willing to make modest predictions about the Justice Department's direction under Sessions, while some legal scholars contacted by the Register were more circumspect, in part, because Trump's own goals in this sphere have not been fully spelled out. Still, given the broad impact of Sessions' role, his confirmation hearing will draw national attention and heated commentary from his most vociferous critics.
Carrie Severino, chief counsel and policy director of the Judicial Crisis Network and a veteran of Senate confirmation battles for the Supreme Court, said she expects Sessions will not fail to be confirmed this time.
The prime reason is that Senate Democrats won’t be able to filibuster Trump’s nominations to executive branch positions, having removed that option back in 2013. The only exception is a Supreme Court nominee, and Republican senators could act to pull the filibuster for that battle, as well, if Senate Democrats refuse to confirm Trump’s nominee to the high court.
“Thanks to Sen. Harry Reid, there is no filibuster on presidential appointments,” Severino told the Register.
“I am confident that Sessions will be confirmed.”
Joan Frawley Desmond is the Register’s senior editor.