The Court Is in Sessions

by Mark Hemingway

Alabama's Sen. Jeff Sessions is a conservative voice on judicial nominations.

Conservatives looking for a silver lining in Arlen Specter’s defection to the Democrats need to look no further than Alabama’s Sen. Jeff Sessions.

Given that Specter was known for his relatively liberal stances and willingness to make concessions to Democrats, his position as the ranking Republican on the Judiciary Committee was a cause for concern with two probable Supreme Court vacancies in the near future. Sessions’s approach and legal philosophy seem more likely to please those hoping to get justices on the highest court who are amenable to giving conservative ideas a fair hearing.

“I think it’s critically important at this time in our history that we preserve the classical American legal philosophy, which says that judges should follow the law, not make law,” Sessions tells National Review Online. “The idea, all too common on the Left, that everything is politics — and law is just a tool to oppress the non-powerful — is absolutely false; only in a system that has a good, objective legal system can people prosper and be safe in their liberty.”

Despite a commitment to conservative ideals and reservations about those who advocate an activist judicial philosophy, Sessions doesn’t have a reputation as a firebrand obstructionist. In a recent Politico story, Judiciary Committee chairman Pat Leahy noted that Sessions was one of a few Republicans to support Eric Holder’s nomination as attorney general.

Sessions is clear about what he expects from a judicial nominee. “There are people who believe that judges have the right to set policy, that they ought to be policymakers. I submit that, if they want to do that, they ought to run for office,” he says. But he’s determined not to prejudge any judicial candidates. Asked about one potential Supreme Court nominee, federal judge Sonia Sotomayor, and about her comment that the courts are where “policy is made,” Sessions quickly notes, “I haven’t looked at the quote or studied her record.”

Sessions argues that one reason why Democrats can expect him to be fair is that in 1986, when he was nominated for a federal judgeship in the Reagan administration, he himself went through a bruising nomination process — and was rejected by the Judiciary Committee.

“What I learned in that process is that we’re not going to misrepresent any nominee’s record, and we’re not going to lie about it,” he says. “They’ll be entitled to explain the charges against them. That doesn’t mean I’ll accept their explanation or agree with it.”

In fact, information that came out of that experience is now being used by Democrats against Sessions — the aforementioned Politico story characterized him as a “a Southern, white conservative man who has drawn fire for racially insensitive comments in the past.”

Sessions stands accused of making an insensitive joke about the Ku Klux Klan, as well as calling the NAACP and ACLU “communist-inspired” and “un-American” organizations.

Sessions insists that the comments attributed to him were “filled with distortions and inaccuracies — it was an attempt to create a caricature of me,” he says. “When I got to Washington, there had been an orchestrated campaign to smear my record, and it was executed with great care. And I, frankly, was a babe in the woods and wasn’t sufficiently prepared for it.”

As a U.S. attorney, Sessions unsuccessfully prosecuted a group of civil-rights activists — including a former Martin Luther King Jr. aide — on charges of voter fraud. Sessions says he remains convinced that he did the right thing, but admits he “failed to make the case,” and that the prosecution provoked a good deal of animus against him. Perry County in Alabama, where the alleged voter fraud took place, has been dogged by similar accusations for decades; just last year, it was the site of a voter-fraud investigation by state and federal authorities who were looking into corruption by both black and white authorities.

Despite the smear campaign against him, Sessions’s actual record tells a different story.


“I filed 20 or 30 civil-rights cases to desegregate schools and political organizations and county commissions when I was a United States attorney,” he says. “I prosecuted the head of the Klan for murdering somebody, and I insisted the klansman be given the death penalty. When I became attorney general years later, I handled that appeal and ensured that he was, in fact, executed.”

The klansman in question, Henry Francis Hays, was executed for abducting and killing Michael Donald, a black teenager selected at random. The prosecution of Hays led to a $7 million civil judgment that bankrupted the Klan. Sessions notes that two of the lawyers from the Justice Department’s civil-rights division who worked the Hays case with him testified on his behalf.

Despite having to mount a defense against charges he says are unwarranted, Sessions says he’s looking forward to doing his duty on the committee. In particular, he notes that there’s a bundle of pressing national-security issues to be dealt with.

“We’ve got a host of issues, and it seems like the committee is constantly moving a host of legislation. There’s one that we’re starting on today — the State Secrets Act, that attempts by statute to reverse the historical court analysis of the right of the government to maintain secrecy,” Sessions says. “This would lower the standards significantly and create litigation. I think this is a dangerous policy.”

And at least one of the members of the 1986 Judiciary Committee has had second thoughts about the committee’s rejection of Sessions.

“I was pleased the day before yesterday that Senator Specter volunteered that, in of all time he’s been here, one vote he’s regretted is a vote he cast against me,” Sessions says. “That was gratifying.”