by Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law
Jeff Sessions should be denied confirmation as Attorney General of the United States. Sessions is at the far right of the political spectrum and should not be put in charge of federal civil rights and federal environmental enforcement. Although it would take political courage to stand up to the newly elected President, pressure should be placed on moderate Republicans to join Democratic Senators in denying confirmation to Sessions.
The Civil Rights Division of the United States Department of Justice is responsible for enforcing laws prohibiting race discrimination in voting, employment, housing and policing. Nothing in Sessions’ career offers hope that he would be other than a disaster in doing so.
In 1986, Sessions was nominated to be a federal district court judge. He was denied confirmation by the Senate, with even a Senator from his home state of Alabama, Howell Heflin, voting against Sessions. An Assistant U.S. attorney who worked for Sessions, Thomas Figures, testified that he was repeatedly called “boy” by Sessions and was instructed by the Sessions to “be careful what you say to white folks” after Figures spoke assertively to a co-worker. Sessions has said that the NAACP and the ACLU are “un-American” and “communist-inspired” for “trying to force civil rights down the throats of people.”
As a United States Attorney in Alabama, Sessions did nothing to enforce federal civil rights law, but he did prosecute three black activists for voter fraud, including a former aide to Martin Luther King Jr., Albert Turner. Turner had led marchers across the Edmund Pettus Bridge during the famous “Bloody Sunday” march in Selma, Alabama, on March 7, 1965. Turner and the other defendants were acquitted, but prosecutions like this one likely had a chilling effect on efforts to facilitate voting by racial minorities.
As a Senator, Sessions has had an abysmal record on civil rights. He was one of nine Senators who voted against the bipartisan Detainee Treatment Act of 2005, which prohibits "cruel, inhuman, or degrading treatment or punishment" of any prisoner of the United States. How could we entrust upholding the rule of law, the core responsibility of the Attorney General, to someone who sees no problem with subjecting prisoners to “cruel, inhuman, or degrading treatment”? Sessions voted “yes” for a constitutional amendment to prohibit same-sex marriage, no on adding sexual orientation to definition of hate crimes and no against reauthorizing the Violence Against Women Act.
The Justice Department, through its Environment and Natural Resources Division, plays a key role in enforcing federal environmental laws. Here, too, Sessions has a terrible record. He repeatedly has called into question the relationship between fossil fuels and climate change. In a speech on the floor of the Senate in 2014, he said, “I don’t know we know enough now to answer this question conclusively either way, but there’s been a lot of exaggeration, there’s been a lot of hype, and people are feeling the crunch already in their electric bills ... in our effort to stop storms that don’t seem to be going down, or to stop temperatures that don’t seem to be rising.” Sessions voted to amend the Clean Air Act to eliminate EPA’s authority to regulate greenhouse gases, but the bill failed in the Senate.
Senators can and should block his confirmation. This has happened previously. For example, in 1989, the Senate rejected the nomination of John Tower to Secretary of Defense. In 1987, Ronald Reagan withdrew Robert Gates’s nomination to be CIA director amid bipartisan opposition because of Gates’ role in the Iran-Contra affair. In 2009, President Obama withdrew the nomination of former Senate majority leader Tom Daschle to be Health and Human Services Secretary after issues were raised about his unpaid taxes.
Unfortunately, Democrats on their own cannot block Sessions’ confirmation. The Senate will be 52-48 Republican and the filibuster no longer exists for Cabinet appointments or lower federal court judgeships. To succeed in blocking Sessions, three Republicans will have to join the Democrats. Admittedly, it will be difficult to convince Republican Senators to stand up to the newly elected President, especially to reject a member of the Senate. But the effort to deny confirmation to Sessions, even if it fails, is important. It can send a powerful message to the Trump administration that we will fight against his nominations and policies that are extremely conservative and hopefully begin to mobilize an opposition that will be vital in the months and years to come.
President Trump deserves some deference in selecting his Cabinet. But there are limits. The Senate should exercise its power to advise and consent and reject Jeff Sessions for Attorney General.