Bench Memos

Who is J. Gerald Hebert?

At the hearing on Jeff Sessions’ nomination to the federal bench in 1986, a government attorney named J. Gerald Hebert played a particularly prominent role in then-Senator Joe Biden’s opposition strategy. Now, as then, he will likely be the star witness as the Democrats try to scuttle Sessions’ nomination to be Attorney General. Hebert has already grabbed the spotlight, penning an op-ed for the Washington Post that contradicted his sworn testimony 30 years ago before the Senate Judiciary Committee.

Who is Mr. Hebert and why did his testimony play such a large role in Sessions’ confirmation battle?

In 1981, Sessions became U.S. Attorney for the Southern District of Alabama, the official overseeing federal law enforcement in that judicial district. Hebert, who had been working for the Department of Justice since 1973, was working in the Civil Rights Division that year. As an attorney in that division, Hebert had been involved with hundreds of civil rights cases throughout the country and had worked with a wide range of U.S. Attorneys. As he and Sessions worked cases together in the Southern District of Alabama, they ultimately developed what Hebert called at the time a “very good personal relationship.” He had come to know Sessions as a friend, he told the committee, as “more than just a U.S. attorney,” and described Sessions as a “man of his word” who as a judge would “follow the law faithfully.”

Why was Hebert called to testify against Sessions? As Hebert explained at the time, he had made some remarks about Sessions in confidence to representatives of the American Bar Association, which was researching the qualifications of Reagan’s judicial nominees. Because his comments were made in confidence, Hebert expected “that they would go no further than that.” But the Democrats on the Judiciary Committee had other plans, strong-arming Hebert into testifying at a deposition and then before the full committee.

Several of the senators grilled Hebert on his views about Sessions. One asked him directly: “Do you think Mr. Sessions is a racist?” Mr. Hebert was unequivocal: “No; I do not.” Sessions was, he said, in agreement with the idea that racially discriminatory gerrymanders harm black voters. Hebert also said that Sessions did not look serious – i.e., was joking – when he made a comment about another lawyer being a “traitor . . . or a disgrace to his race.” Hebert further distanced himself from those on the committee who believed he might have been suggesting that Sessions was a racist: “I am troubled by the fact that there is an image based on statements that I have made that Mr. Sessions is a racist.”

Indeed, Hebert went on to repudiate an allegation by a different witness suggesting that Sessions had blocked a voting rights investigation in his district, when it had in fact been Sessions’ predecessor. Hebert was so concerned about the other witness’s misrepresentation (and his own testimony that erroneously corroborated it) that he later filed a sworn declaration to correct the error.

In fact, Hebert said that he had found Jeff Sessions to be much more helpful than some other U.S. Attorneys. Whereas some had been less receptive to Civil Rights Division cases, Sessions was very cooperative, even on “unpopular” and “highly sensitive and very controversial” cases brought in his district. He also noted that Sessions had been happy to lend administrative help, including one time during the previous two months when he had been able to call Sessions directly and obtain permission to dictate an urgent court filing to his secretary.

Hebert found common ground with Sessions on voter fraud, too. During the deposition, Hebert was asked by one of the Judiciary Committee staffers about Sessions’ views on the matter, and Hebert’s answer was straightforward: “He thought that the time had come when we needed to make sure that if anybody violated the law that we were going to prosecute them whether they were black or white. It really didn’t matter to him. It didn’t matter, really, how it had happened in the past either. He said under his administration, he was going to prosecute people for voter fraud.”  The staffer then asked whether there was anything that Hebert disagreed with. Hebert’s response was direct: “Not on that, no.” Hebert indicated that he disagreed with Sessions’ views on voter dilution, but said that these views were consistent with the views of many federal judges.

At the time, Hebert was concerned that the “fairly balanced” account he had given in the deposition was not coming out in the hearing, since he believed that Sessions was “a man of his word” who would “follow the law faithfully.” He ultimately regretted his role in the hearing, telling the committee that he “felt bad” about how it all worked out, and he wanted Sessions to know that he “simply did not really intend for all this to get to the point where we are today.” 

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

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