The fight over Jeff Sessions’s attorney general nomination, explained

Trumpism isn’t getting a confirmation hearing in the US Senate. But the confirmation hearing of Jeff Sessions, nominated to be attorney general in the Trump administration, is the next best thing.

Sessions has been one of Trump’s closest policy advisers since before he won the Republican presidential nomination, and many Sessions advisers now staff the presidential transition team or have been named to Trump’s White House. The combination of populist immigration hawkery and “tough-on-crime” rhetoric that defined much of Trump’s successful presidential campaign was Sessions’s hallmark back when Trump was still a Democrat.

Now Sessions could be responsible for implementing many of the Trump policies that his opponents find most problematic — from stepping up prosecutions and speeding up deportations of unauthorized immigrants to peeling back federal oversight of local police departments and state voting laws.

That’s what makes his nomination a fight that Democrats — going against the grain of Senate norms, which typically encourage senators to treat their colleagues gently — want to pick. Sessions will be the first senator in recorded history to see one of his own colleagues testify against him: Sen. Cory Booker (D-NJ) will be part of a panel (along with Georgia Democrat Rep. John Lewis) raising concerns about Sessions’s record toward the end of the committee hearing.

But for those exact same reasons, Sessions is a nominee Senate Republicans, who are trying to find their way in the age of Trump — and for whom Sessions isn’t just a colleague but a leader in the party they turn out to have in 2017 — are enthusiastic about defending.

The result is that Sessions’s confirmation battle is likely to feature fireworks. But he’s unlikely to face a serious threat.

Bill Clark/CQ Roll Call

Senators usually treat their colleagues well — but at least some Democrats have decided this is an unusual case

Jeff Sessions has many qualifications to lead the Department of Justice. He’s been a federal prosecutor and state attorney general; he’s been in the Senate for 20 years, and spent much of it on the Senate Judiciary Committee (including a stint as the committee’s ranking Republican).

He does not appear to face any ethics challenges. And (while he’s been criticized for leaving some relevant information out of documents submitted to the Judiciary Committee and the Office of Government Ethics) he has gone through the necessary steps of the confirmation process, including tax returns and ethics disclosures.

In short, by the basic qualification standards, he’s in the upper tier of Trump administration nominees — hardly an obvious target for Senate Democrats to focus their limited energy on as they prepare for eight confirmation hearings in three days.

If the Senate were still guided by the norm that it ought to “advise and consent” the president on nominations (that senators ought not to oppose nominees simply because they disagree politically), Sessions would have sailed through.

It hasn’t been, of course, for a matter of decades. But it is — or at least until recently was presumed to be — guided by another norm: that a sitting senator, nominated to an executive branch position, deserved the courtesy of gentle treatment from his colleagues. After all, they knew him to be an upstanding man.

Scott J. Ferrell/CQ via Getty

But in 2017, Democrats are setting aside those norms because many of them see President-elect Trump as an existential threat to liberal democracy, as much because of his policy proposals — from special scrutiny of immigrants from Muslim-majority countries to restrictions on voting — as his leadership style.

And on those issues, there is little if any daylight between Trump and Sessions.

Sessions has long been the most outspoken opponent of immigration — both legal and unauthorized — in the United States Senate. He has shown ambivalence about preserving voting access. And he’s in many ways the most conservative member of the Senate on criminal justice issues, from believing the federal government should crack down on state marijuana legalization to warning that the drop in the federal prison population was causing a spike in crime.

There was also an added wrinkle in Sessions’s history that made it, perhaps, a little more palatable to take a stand against a longtime senator: He’d been rejected by the Senate Judiciary Committee before.

In 1986, Sessions (then an assistant US attorney) was nominated to the federal bench by Ronald Reagan. But after a contentious confirmation hearing scrutinized both Sessions’s civil rights record in court and his personal behavior toward black colleagues, the Republican-led committee did something that violated the norms of the time: It voted against his confirmation. (Sessions was the second nominee to be denied a judgeship in 50 years.)

Sessions weathered the setback; it hasn’t stopped him from serving, for decades, on the very committee that rejected him. But it presented an awkward parallel when he was nominated for attorney general: Was Jeff Sessions “too racist” for the GOP of Ronald Reagan but not the GOP of Donald Trump?

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For a while, it wasn’t clear that Senate Democrats were interested in taking a stand against a longtime colleague. Instead, outside advocacy groups led the way. The NAACP Legal Defense Fund released a thorough dossier on Sessions’s record; immigration advocacy groups paid more attention to him than they did DHS nominee Gen. John Kelly. The American Civil Liberties Union, which doesn’t usually take a stand on executive branch appointments, is sending its legal director to testify against Sessions in committee.

Many Democrats are taking their lead. At least one senator (Sherrod Brown, who’s not on the Judiciary Committee) has already said he’ll vote against Sessions once his nomination comes to the full Senate floor. Sen. Pat Leahy, the former chair of the Senate Judiciary Committee, published a biting op-ed in the Boston Globe over the weekend labeling his colleague an “extremist.”

And on Monday night — after a fight between Republicans and Democrats on the judiciary committee about whether and when a group of black members of Congress would be allowed to testify to voice their concerns — a lineup was announced that included Booker.

It’s probable that for many Democrats, this is a matter of politics as much as principle: Booker, for example, is generally expected to have presidential ambitions. But Leahy — not to mention John Lewis — isn’t thinking about his own career at this point. To the extent that Democrats are motivated by politics, it’s because they think this is a fight the Democratic Party needs to pick right now.

The agenda for Sessions’s confirmation fight is almost as broad as the agenda for Trump’s presidency — without an obvious Achilles’ heel

It’s probably fortunate for the opponents of Sessions’s nomination that so many of them will get the chance to testify on Tuesday and Wednesday. Because there are almost as many messages for them to focus on as there are messengers — without a single obvious focal point.

There would be questions for Sen. Sessions, given his record, no matter which president he would serve. There would be questions for any attorney general nominee under President-elect Trump. Combine the two, and you can expect all of these issues to get at least a little attention — and some of them to get a lot.

• Voting rights: Donald Trump will be the first president to take office after the Supreme Court’s 2013 decision in Shelby County v. Holder, which severely curtailed the federal government’s ability to block state and local laws on the grounds that they violated voting rights. Sessions was an outspoken opponent of the Voting Rights Act section struck down by the Court’s decision, and has generally dismissed the possibility that racial discrimination is still a threat to voting rights. His critics are concerned that his DOJ would be uninterested in challenging state and local practices — from gerrymandering to voter ID laws to restrictions on early voting — that have the effect, and sometimes the explicit intent, of reducing minority voting rates.
• Civil rights: For progressives, the go-to example of what can happen to a government agency when a president doesn’t believe in its mission is the DOJ’s Civil Rights Division under George W. Bush. Bush’s DOJ showed less interest than its predecessors in investigating discrimination against nonwhites, while showing what some considered undue concern in protecting the rights of white and Christian Americans — aided by a politicized hiring process and an office environment so intolerable that several longtime employees left. Under Obama, the Civil Rights Division was relatively strong, but Democrats are concerned they’ll see a repeat of the Bush years — or worse.
• Immigration prosecutions… The frontline agencies in immigration (Customs and Border Protection, and Immigration and Customs Enforcement) belong to the Department of Homeland Security, but the DOJ runs the immigration court system responsible for ordering immigrants deported. Furthermore, for the past several years, immigration charges have accounted for more federal court cases than any other kind of crime. That gives the DOJ a huge role in shaping federal immigration enforcement strategy. Given Sessions’s longstanding interest in restricting immigration, it’s reasonable to assume he’s going to wield his influence.
• …including the Muslim ban: Whatever Trump’s plan for “extreme vetting” of immigrants looks like will probably be determined by the Departments of State and Homeland Security more than the DOJ. But Trump’s proposal to ban Muslim immigration to the United States was such a memorable campaign promise that it’s persisted even though Trump himself has changed what he’s proposing — so it’s something most Trump nominees are likely to be asked about. And when Leahy proposed an amendment last year expressing that discrimination on the basis of religion had no place in immigration policy, Sessions vociferously opposed the amendment (something Leahy, if his Boston Globe op-ed is any indication, has not forgiven).
• Marijuana: Jeff Sessions is far from the only marijuana legalization opponent in Congress — Sen. Dianne Feinstein (D-CA), the highest-ranking Democrat on the Judiciary Committee, is one too. But Sessions might be the only one still willing to say declaratively that people who smoke pot are not good people. (And then there’s the famous allegation — which Sessions himself denies — that he once said he only turned against the Ku Klux Klan when he found out they smoked pot.

The relationship between the federal government (under which marijuana is still a wholly illegal drug) and states that have legalized or decriminalized pot is still fuzzy. Obama’s DOJ, after some high-profile raids and prosecutions of state-legal dispensaries, wrote a series of memos urging federal prosecutors toward a detente. But nothing is stopping a Trump administration and Sessions DOJ from starting a new fight — unless, perhaps, they’re persuaded that it’s not worth the opposition of not just Democrats but Republicans like Sen. Cory Gardner (R-CO).

• Mass incarceration and federal sentencing reform: In recent years, members of the Senate from both parties have led a push to reduce federal sentences (primarily for drug crimes, which account for about half of federal prisoners). Sessions has pointedly not been among them. While his defenders have pointed to his support for the 2010 Fair Sentencing Law, which reduced crack cocaine sentences to a mere 18 times the severity of equivalent powder cocaine offenses (down from a 100-1 ratio), Sessions has opposed each subsequent push for broader sentencing reform. Some skeptics, like Senate Judiciary Chair Chuck Grassley (R-IA), have worked with reformers toward potential compromise bills. Sessions has been vocally opposed to sentence reductions, and has written commentaries blaming prison releases for a rise in crime.

Policing: For decades, the Department of Justice has taken the lead in oversight of local police — both through basic training and grant programs, and through investigations and lawsuits against police departments accused of showing a “pattern and practice” of depriving residents of their civil rights. Over the past few years, as the relationship between policing and racial discrimination (especially when it comes to use of lethal force) has become one of the key issues in American life, the Obama administration became the most important (if often reluctant) institutional ally of the Black Lives Matter movement.

Sen. Sessions once participated in a Senate hearing on the “war on police”; he’s criticized both the agenda of the Obama Justice Department on police reform and the tools by which they try to ensure police compliance. There’s also the attorney general’s role as head of the FBI, which, during the war on terror, has been accused of aggressively using confidential informants to surveil (and even entrap) Muslim Americans in terrorism prosecutions.

• The war on terror: President Obama wanted to close the detention center at Guantanamo Bay and try terrorism defendants in federal court. President-elect Trump, and Sen. Sessions, wants to do neither of these things.
• White House independence: This isn’t a key issue for Sessions per se, but it’s a question that would face any human nominated for attorney general under a President Trump: How committed are you to preserving the independence of the Department of Justice and preventing the White House from meddling in federal investigations and prosecutions? Trump has generally not shown a lot of deference to norms that restrict him from doing what he wants, and has shown a lot of interest in punishing his enemies with whatever power is at his disposal; an attorney general who was willing to let the White House call the shots would be opening up his department to massive abuse of power.

The Sessions fight shows that in the age of Trump, race is a mobilizing issue for both parties — which means it’s nearly impossible for the minority to shame the majority

The breadth of the questions facing Sessions is, in a way, deceptive. Many of them are different policy angles on a single question: Does Jeff Sessions believe racial discrimination in America is a serious problem in 2017, and is he prepared to use the federal government to fight it?

This question is not, however, the same as: Is Jeff Sessions too racist to be the nation’s top law enforcement official? And that is, for Democrats, exactly the problem.

Democrats can’t defeat the Sessions appointment on their own. Since 2013, only 50 votes are needed to approve executive branch appointees, and Republicans have more than that. So Democrats would have to persuade a few Republicans to abandon their colleague. And just as Democrats have been motivated to fight Sessions, Republicans have every reason to back him.

Jeff Sessions is remembered as having lost a federal judgeship because he might have called a black co-worker “boy” and made that joke about the KKK. It’s the tacit consensus in 2017 of what it means to be racist: to harbor personal animosity toward people of different races, and to treat them badly in your everyday life.

Those comments have already come to public attention. Sessions has already apologized for them. And no more recent, equally egregious comment has come up.

Mark Wilson/Getty Images

Over the past several years, though, many progressives — including some Democrats — have begun to embrace a more inclusive idea of racism. They’ve come to believe that regardless of what is in a man’s heart, if he supports laws that have the inevitable consequence of disenfranchising black voters, overpolicing black, Latino, and Muslim communities, and turning a blind eye to private discrimination, his effect is racist even if his intent is not.

The 2016 presidential campaign sold many Democrats on that expansive view. But it sold even more Republicans on the opposite opinion: that liberals’ incessant cries of “racism” threatened to undermine the impartial rule of law.

Many of Trump’s closest political allies have a tendency toward the kind of egregious racism Sessions got in trouble for as a judicial nominee. But Jeff Sessions isn’t Carl Paladino, Michael Flynn, or Steve King. He doesn’t usually defend his beliefs as an attempt to preserve Western (or Judeo-Christian) civilization. He defends them rationally and coolly. Even when, say, defending the right of the US government to discriminate against immigrants on the basis of religion, he portrays his position as support for the facially neutral rule of law.

His agenda wasn’t always in line with his Senate Republican colleagues. As recently as 2013, Sessions was on the short side of a lot of lopsided votes when the Senate Judiciary Committee marked up a bill for comprehensive immigration reform. But his rhetoric and principles were always something they could own.

And now, with the election of Donald Trump, Sessions has been revealed to have had his finger on the pulse of the American people (or at least an important segment thereof) the whole time. His Republican colleagues have every reason, right now, not only to respect him as a colleague but to defend his agenda for America — to make it their own.

There are Trump nominees who trigger points of soreness for the party, like its reputation for being the party of billionaires or its failure to come up with the “replace” part of the plan to “repeal and replace” Obamacare. There are some who represent genuine points of policy contention, like what the US’s attitude ought to be toward Putin’s Russia.

But when Sessions goes up before the Senate Judiciary Committee Tuesday morning, he’ll be introduced not only by his fellow senator from Alabama but by Sen. Susan Collins of Maine — one of the Republican caucus’s few remaining moderates. Collins is not committed to voting for Obamacare repeal, especially if it defunds Planned Parenthood, but she’s going to bat for Donald Trump’s attorney general nominee.

Sessions represents a battle the party, in the age of Trump, is willing to pick.

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