Bench Memos

Ten Takeaways from the Sessions Hearings

Today’s hearings were a home run for Senator Sessions, as Byron York has notedThe rest of the confirmation process should be smooth sailing. Here are some of the main themes and moments to remember from his testimony:

1. Respect for Rule of Law

Sessions returned repeatedly to his main theme of respect for the rule of law. On several occasions other senators asked him about his position on various issues, from enforcement of the Voting Rights Act, to the FACE Act, to drug laws, to immigration. Across the board, whether it was a law he loved or hated, he pledged to enforce the law as passed by our elected representatives. That’s a big contrast with the Obama administration’s penchant for failing to enforce drug and immigration laws they disagreed with and attacking laws like DOMA in the courts.

2. A Constitutional Check on the Executive

A complementary focus was the Attorney General’s role in ensuring that the executive is abiding by the Constitution, including resigning rather than taking unlawful or unconstitutional actions.

“I think an Attorney General should first work with the president, hopefully that Attorney General would have the confidence of the President, and avoid situations that would be unacceptable. I do believe that if an Attorney General is asked to do something that is plainly unlawful, he cannot participate in that, he or she, and that person would have to resign ultimately before agreeing to execute a policy that the Attorney General believes would be unlawful or unconstitutional.”

3. Refuting “​Damnably False Charges”​

In his opening statement Sessions gave a blanket disavowal of the slurs against him arising out of his 1986 hearings as “damnably false charges.” It’s possible that this early refutation of those allegations defused the issue and helped keep the hearings mostly focused on the issues rather than mud slinging.  

4. Raising the Ethical Standards

Sessions volunteered that he would recuse himself from investigations into Hillary Clinton’s email and Clinton Foundation scandals because he had commented on those charges on the campaign trail when stumping for Trump. That was a smart move that was not only ethically sound but defused likely Democrat complaints and provided a sharp contrast with AG Loretta Lynch’s own impropriety in having private conversations with former President Clinton while his wife was under investigation.

5. Straightforward Answers

On numerous occasions Sessions took the wind out of Democrats’ sails by giving very straightforward answers rather than trying to finesse his answers. Take this exchange with Senator Feinstein: 

Sen. Feinstein: “You have referred to Roe v. Wade as ‘One of the worst, colossally erroneous Supreme Court decisions of all time.’ Is that still your view?”

Sen. Sessions: “It is. I believe it violated the constitution and really attempted to set policy and not follow law.”

Or this I-can’t-believe-Leahy-just-went-there moment:

Sen. Leahy: “Is grabbing a woman by her genitals without consent, is that sexual assault?”

Sen. Sessions: “Yes.”

The simplest answer is often also the right one.

6. Batting Down Straw Men

Senator Sessions handily dispatched several straw men that had been deployed against him.  For example, he said he didn’t support a flat ban on Muslim immigration. He also pledged to respect the Roe v. Wade and Obergefell decisions – and that after noting that he disagreed with them legally.

7. A Southern Gentleman

Senator Sessions was unflappably calm and gentlemanly throughout. He was patient with longwinded questioners as well as the periodic protesters being evicted. I was impressed with an exchange about the holding of the Lily Ledbetter case in which he gallantly conceded to Sen. Hirono that his recollection of the facts of the case could be incorrect and she could be right. (As it happens she had the facts of the case exactly wrong.)

8. Racism from the Peanut Gallery

The most racially-charged statement of the day didn’t come from the witness or any of the senators, but from a twitter-happy MTV reporter who quickly learned that it doesn’t pay to make racist comments in service of your argument that someone is a racist.  The reporter snidely tweeted that Sessions should “kindly return this Asian baby to the Toys ‘R’ Us you stole her from.”  (His four adorable granddaughters – who were shockingly well behaved sitting through the long opening statements – are part Asian.) Jake Tapper pretty well summed it up: “Disgusting tweet. The little girl is his granddaughter. Delete your account and find some humanity.”

9. Senator Franken is not a Lawyer

Senator Franken won the understatement of the year award when he prefaced a question with “I’m not a lawyer but…” He went on to question Sessions’s involvement in several cases listed on his Senate questionnaire. Sessions attempted to explain that his name was first on the briefs and his signature in the docket and that he was therefore very much responsible for those cases, but Franken continued to protest. “I don’t know some of the parlance, might have a special meaning in legal parlance, but to me, as a layman, it sounds to me like filed means I led the case, or I supervised the case. It doesn’t mean that my name was on it.” Actually, “I filed a case” does mean that it was filed with your name on it, as Sessions was well aware. I guess that’s why he, and not Franken, is the one who’s up for the AG spot.

10. The Reduce Superfluous Awards Act of 2017

You knew it was over when… This happened for me when Senator Blumenthal pressed Sessions to disavow basically any group who has ever given him an award lest he be deemed to agree with all their positions.  First, you started to see the veteran prosecutor come out in him when he responded to insinuations that he may have received an award at some point from the KKK with: “Well, I wouldn’t receive it from Henry Hayes, I’ll tell you that. He no longer exists.” (Hayes was the Klansman and murderer for whom Sessions helped secure the death penalty.) In case you were wondering, Sessions also stated that he wouldn’t receive an award from the Klan.

 

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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