In confirmation hearings for Jeff Sessions, the past is never past

It’s not unusual for a time decades previous to shadow a nominee, historians say. But charges of racism, like those leveled by opponents of attorney general nominee Sen. Jeff Sessions, are a unique category.

It was a telling moment in Tuesday’s hearing of Sen. Jeff Sessions to be America’s top law enforcement officer:

Just after his fellow southerner, Lindsey Graham (R) of South Carolina, asked him what it felt like to be labeled as “a racist or a bigot,” a cry erupted from the back of the cavernous, marbled hearing room.

“Sessions is a racist! This whole fascist regime needs to be stopped before they start!” Capitol police hustled the protesters to the doors as they shouted a slogan that several times interrupted the hearings, “No Trump, no KKK, no fascist USA.”

When quiet returned, the nominee answered his friend from the Palmetto State: To some people, nothing sounds worse than having a southern name (Jefferson Beauregard Sessions) and coming from south Alabama. Referring back to his 1986 Senate hearing when he was denied a federal judgeship because of racist allegations, he said he arrived at that hearing unprepared to deal with an allegation that wasn’t true.

“I hope my tenure in this body has shown you that the caricature that was created of me is not accurate. It wasn’t accurate then, it’s not accurate now,” said Sessions, who has served in the Senate for 20 years – including on this very committee.

On the first day of his two-day hearing, the past came roaring up to the present, raising a question from more than 30 years ago: Is the Republican from Alabama a racist?

It’s a question of character – and actions – at a time when many minorities and others are anxious about a Trump administration. They fear that Attorney General Sessions would not enforce civil rights laws such as the Voting Rights Act or that he would deport 800,000 children of unauthorized immigrants known as “Dreamers.” They were granted deferred deportation because of an executive action by President Obama that both Senator Sessions and President-elect Donald Trump believe is unconstitutional.

For critics who attended the hearing, Sessions could do little to assuage their concerns. But in that way, the hearing presented a portrait of two different takes on racism in America today – supporters who vouched for the goodness of the man, and detractors who said alleged comments from the past and voting records from the present suggest he is out of touch with minority communities.

“No matter what Sessions is saying about ‘it is not true who we think he is,’ we think we know who he is. And we think that he cannot escape his history. And he certainly cannot escape some of these bad votes he has taken as a senator,” said Rep. Maxine Waters, an African-American Democrat from California, who was accompanying black ministers from around the country to the hearing.

Shadows of the past

It’s not unusual for decades-old controversies to shadow a nominee, says Calvin Mackenzie, an expert on presidential nominations. He points to Elliot Richardson. The four-time cabinet secretary was made famous as the attorney general who refused President Nixon’s order to fire the special prosecutor in the Watergate scandal.

At multiple confirmation hearings, Richardson was asked about drunken driving incidents when a young man in his college years. He fully admitted to them, chalking them up to “immaturity.” He also thoroughly denounced the inference that he was an alcoholic.

“No matter how old he was, no matter how distinctively he had served the country, every time he was at a hearing, those things popped back up,” says Mr. Mackenzie, of Colby College in Waterville, Maine.

But charges of racism are in another category. They are a “serious and troublesome reflection on a nominee’s character and on his fitness for public service,” writes Mackenzie in his book, “The Politics of Presidential Appointments.” They require a high burden of proof, he writes, adding that “the notion that a man or woman is a racist is subjective at best.”

And so it proved at Tuesday’s hearing.

Sessions deviated from his prepared remarks to meet the charge at the very beginning of the hearing.

He went back to a voter fraud case he prosecuted as a United States attorney in Alabama and for which he has been criticized. “The voter fraud case my office prosecuted was in response to pleas from African-Americans, incumbent elected officials,” he explained.

He also pointed out that he prosecuted a member of the Ku Klux Klan who had murdered a black teenager. Part of the 1986 accusations that sunk him was a comment he made about the KKK, which he had characterized as a joke. “I abhor the Klan and what it represents,” he said on Tuesday.

He also reached out to women and the lesbian, gay, bisexual, and transgender community. 

“I understand the demands for justice and fairness made by the LGBT community. I understand the lifelong scars born by women who are victims of assault and abuse,” he continued.

In introducing him, Sen. Susan Collins (R) of Maine – arguably the most moderate Republican in the Senate – pointed out his bipartisan work in the Senate to reduce racial disparity in crack cocaine sentencing, prison rape, and child abuse.

In 1980, she pointed out, he appointed the first African-American member of the Mobile Lions Club. As the top Republican on the Senate Judiciary Committee, he appointed the first African-American chief counsel to advise Republicans.

“These are not the actions of an individual who is motivated by racial animus,” she said.

Senator Collins added that the late Sen. Arlen Specter of Pennsylvania, who voted against Sessions in 1986, once said that was the one vote he regretted, because he had since found through serving with Sessions that he is an “egalitarian.”

Questions about the present 

But Sessions’s critics did not buy these arguments. Democratic senators went through his votes and his most controversial positions.

Sen. Patrick Leahy (D) of Vermont, the former chairman of the Judiciary Committee, asked him why he voted against the Violence Against Women Act that is now the law of the land.

Sessions answered that he had voted for previous bills but that he didn’t like the set-up for Native American tribal courts in the final version.

Senator Leahy asked him why he opposed extending hate crime protections to the LGBT community.

The nominee answered that the states were effectively prosecuting those crimes.

Leahy asked whether he agreed with President-elect Trump’s proposed ban on Muslims coming to the United States.

He replied that Trump’s proposal would be to ban people from terrorist countries. Sessions does not support the idea that Muslims should be denied admission to the US, he said.

Similarly, the nominee addressed pointed questions by the committee’s ranking member, Sen. Dianne Feinstein (D) of California. While he does not believe the Supreme Court decision establishing legalized abortion is constitutional, he acknowledged it is “settled” law. “It deserves respect and I would respect it and follow it.”

He would also “follow” the court’s decision upholding same-sex marriage.

In questioning by Senator Graham, Sessions reaffirmed his view that the Dreamers executive order is constitutionally “questionable,” and that Congress needed to fix the law. Later, he said the attorney general needs to enforce the law, but then admitted that the federal government does not have the resources to seek out and remove all those in the country illegally.

Senator Feinstein, in her opening remarks, highlighted his “very conservative agenda” throughout his Senate career, including a voting against efforts to prohibit waterboarding as torture. He later described the technique as “absolutely improper and illegal.”

Racism, or just conservatism?

Feinstein’s description of his agenda raises a question: Is critics’ problem with Sessions racism, or is it his staunch conservatism?

Congresswoman Waters sees no such distinction.

“When you look at public policy that has been supported, initiated, by really right-wing conservatives, it always harms people of color and minorities. Always,” she said.

“You can’t just separate it and say, ‘Well, this is just conservatism, this is not racism, this is not harming other people.’ It is not true. It really does.”

It was a viewpoint strongly shared by the African-American ministers who came to the hearing, and it is hardly a settled matter.

But Sessions sought to gain their trust by vowing to uphold the law for all.  

“I deeply understand the history of civil rights and the horrendous impact that relentless and systemic discrimination and the denial of voting rights has had on our African-American brothers and sisters. I have witnessed it.”