Sessions Has Chosen the Wrong Side of History in the Struggle for Justice

By Ed Kilgore, New York Magazine

09 January 17

ost liberals look at the prospect of Jeff Sessions serving as attorney general and see a waking nightmare. He’s an extremist in a Republican Senate conference that already skews far right. He has been a leader in a backlash against Republican moderation on issues ranging from immigration to crime and drugs to civil liberties. And on voting rights, he embodies the latter-day conservative belief that the only threat to the franchise is its extension to include people previously excluded. That he was for quite a few months the only member of the Senate supporting Donald Trump’s presidential candidacy doesn’t help his reputation outside the GOP, either.

And then there’s what happened when Ronald Reagan tried to make Sessions, a former federal prosecutor in Alabama, a federal district-court judge in 1986. Four former colleagues testified in the Senate that Sessions had made racially insensitive remarks in their presence, and that he generally felt disdain for the Justice Department’s role in protecting civil rights and voting rights. It was enough to make Sessions only the second proposed federal judge since the 1930s to be denied Senate confirmation, as two Republicans plus conservative Alabama Democrat Howell Heflin voted against him on the Judiciary Committee.

Sessions made his alleged persecution by Senate liberals the foundation of a very successful political career in Alabama. And when he won a Senate seat in 1996, empowering him to join his former tormenters in the Upper Chamber, it represented either vindication or vengeance, depending on how you looked at it.

All this background has unsurprisingly come back up as Sessions prepares to face the Judiciary Committee again, on January 10, this time as the proposed chief law-enforcement officer of the United States. But Republicans and conservative opinion leaders have made liberal horror over Sessions their main talking point in his defense. He’s a nice, kind man, they say, much respected in the Senate these days. And most of all, he’s not a racist.

When the Senate takes up President-elect Donald Trump’s choice to be the nation’s next top law enforcement official in January, allegations of racism that have dogged Sessions for three decades running are certain to be his biggest liability. So he and his allies have mounted an aggressive public relations campaign to refashion Sessions’ image.

The core message: The charges that sank Sessions’ bid to become a federal judge in 1986 don’t represent who Sessions is now, or even who he was at the time. Delivering it is a lineup of prominent black leaders and others with personal ties to Sessions enlisted by Trump’s transition team.

Sessions supporters think it will be enough to count on Senate deference to a colleague and supply evidence of racial evenhandedness sufficient to clear the very low bar of establishing that the man doesn’t have white robes in his closet. They may be right.

But not satisfied with this relatively safe strategy, some conservatives have appropriated the Sessions confirmation cause into their broader effort to delegitimize anti-racism as an acceptable tactic in American politics. Characteristically, conservative firebrand (and African-American) Ken Blackwell has taken this tack to grotesque lengths in a Washington Times op-ed that compares Sessions to lynching victims.

Jeff Sessions will be the next attorney general despite the national media’s anti-white, anti-southern racism, and the country will be better for it.

What can liberals do to counter this bizarre whitewashing campaign and give opponents of Sessions’s confirmation a clearer and more compelling case? Deval Patrick may have provided a smart path.

Patrick, who was an NAACP attorney before he became assistant attorney general for civil rights under Bill Clinton (and later a two-term governor of Massachusetts), has penned a letter to the Judiciary Committee that cuts through all the she-said-he-said about Sessions’s subjective racial views and focuses on one objective aspect of the Alabaman’s record that ought to be disqualifying: his 1985 “voter fraud” prosecution of the “Perry County Three,” volunteer activists trying to help old and frail African-Americans vote in a jurisdiction near the voting-rights mecca of Selma.

Sessions lost that case on trial, but as Patrick puts it, it should not have been tried at all, and illustrates a prosecutor’s use of his discretion in a bad cause brought maliciously.

Pursuing that case was an act of extraordinary quasi-judicial activism. Voting is a civic and even sacred right in our country. Extending it to black voters in the Alabama Black Belt was a significant national challenge. Making access real—through the Voting Rights Act and countless acts of civil disobedience—was an equally significant national triumph … To use prosecutorial discretion to attempt to criminalize voter assistance is wrong and should be disqualifying for any aspirant to the Nation’s highest law enforcement post …

For 30 years I have viewed the prosecution of the Perry County Three as a cautionary tale. I believe it demonstrates what can happen when prosecutorial discretion is unchecked, when regard for facts is secondary to political objectives. What can happen is that the rule of law is imperiled. In a republic based on law, this is not the kind of risk any of us should accept in an attorney general.

The basic point is that whatever Jeff Sessions’s private feelings about race, he stood at the very epicenter of the voting-rights struggle, whose history he had every reason to understand intimately since it was all but in his back yard, and he placed the considerable resources of the federal government on the wrong (historically and morally, as well as legally) side. Perhaps you need to be a former prosecutor like Patrick to fully understand the incredible power to do good and evil that an attorney general has entirely within her or his control. But the fact remains that we have every reason to suspect Sessions will change the deployment of that power from a posture of protecting powerless victims of discrimination to pursuing them with the hounds of justice because he’s done it before. Aside from civil rights and voting-rights causes, others traditionally within the protective arms of the Justice Department could suddenly find themselves staring down the barrel of prosecutorial hostility. These will include women seeking to assert their reproductive rights, LGBTQ folk fighting discrimination, nonviolent drug offenders seeking relief from long prison sentences, and undocumented immigrants who have otherwise played by the rules.

I don’t know that it would derail Sessions’s confirmation if all his critics pounded away on this crucial point, but there is no question it would lift the discussions from murky and ultimately impossible-to-resolve questions about what Sessions believes in his heart of hearts.

Beyond the focus of the case against Sessions, his opponents would be wise to counter the claim that they are bigoted against Southern white men by enlisting some well-known Southern white men who chose differently in the struggle for civil and voting rights. Indeed, if Bill Clinton is looking for a service to his country amidst the ashes of his wife’s presidential candidacy, testimony before the Judiciary Committee about the situation in the South in the 1980s, when he was governor of Arkansas and Sessions was prosecuting voting-rights activists, might raise the visibility of the issue significantly.