The Corner

Politics & Policy

Confirm Senator Sessions

The Department of Justice has law-enforcement responsibilities in all kinds of areas: antitrust, tax, environment, general criminal and civil litigation, and so forth. But just about all the opposition to President-elect Donald Trump’s nominee to head the department as attorney general, Senator Jeff Sessions, is because of one area: civil rights.

Opponents to the nomination are trying to paint Senator Sessions as a racist, and as someone who therefore will be unenthusiastic about enforcing the civil-rights laws. But the real concern here is not that Senator Sessions will not enforce the civil-rights laws as a general matter, but that he will not distort their enforcement in key areas of interest to the Left. That is, the real objection to Senator Sessions is that he does not like the use of racial preferences (a.k.a. affirmative action) or its close cousin and another kind of race-based decision-making, the “disparate impact” approach to civil-rights enforcement (which the Left uses to oppose, for example, ballot-security laws).

Consider as just one example among many an item from Inside Higher Ed today:

The American Association for Access, Equity and Diversity on Saturday released a letter urging the U.S. Senate to reject President-elect Donald Trump’s nomination of Alabama Senator Jeff Sessions as U.S. attorney general. The group includes many campus diversity and equal opportunity officers, and the letter highlighted a Sessions quote on affirmative action from 1997. At the time, he said, “I think it has, in fact, been a cause of irritation and perhaps has delayed the kind of movement to racial harmony we ought to be going forward [with] today. I think it makes people unhappy if they lost a contract or a right to go to a school or a privilege to attend a university simply because of their race.” The diversity group’s letter says that Sessions has continued to espouse such views, in particular when rejecting some of President Obama’s judicial nominees. This view, the group says, distorts affirmative action in implying that colleges are accepting or rejecting candidates based on race alone.

My posted response to this story:

Oh, come on. If race is a factor in deciding who is admitted, then in some cases it makes the difference between getting in and not getting in. Otherwise, why consider it? And when that happens, then racial discrimination has occurred. No one can seriously claim that the use of racial preferences in admissions does not result in that happening, nor for that matter that race is typically given far heavier weight than a mere tie-breaker. Senator Sessions did not say that race was the only factor, just that it was the deciding one. And I’m not sure that distinction matters anyhow, as a matter of law or policy.

Put the shoe on the other foot: Suppose that a police officer stops and searches suspects in part because of race, but that the officer considers other factors as well (like age, sex, dress, behavior, etc.). Does that mean that racial discrimination is not occurring? What’s more, if a black person is stopped because of his race when he would not have been stopped if he had been white, isn’t it fair to say he was stopped “simply” because he is black?

The letter here says that affirmative action is designed to “prevent discrimination and to promote opportunities for all who are qualified to compete regardless of their race . . . ” But in fact the use of racial preferences is “discrimination,” by definition, and it does not result in promoting opportunities “regardless” of race.

To elaborate: Conservatives like Senator Sessions (and we here at the Center for Equal Opportunity) really do think it is better for everyone — better for the country, better for black and white, brown and yellow and red — if the government doesn’t sort people by color and treat some better and some worse as a result of that sorting. We really think it is better to have colorblind policies now rather that at some vague, undetermined point in the future. And we really do think that it’s a bad idea to change standards, to lower standards, or to get rid of standards because of a belief that a disproportionate number of people of this color or that color won’t be able to meet those standards. The message implicit in doing that is divisive and only encourages racist thinking. And, let me add, the Center for Equal Opportunity really does believe that the best way to address racial disparities is to end the disparities in out-of-wedlock birthrates so that children of all races grow up in two-parent homes and will therefore be more likely to meet the standards that are set in our society.

We really believe all that. We really do. And whether other people agree or not, they should be able to understand that such a belief cannot legitimately be called “racist” or that those who hold it can be legitimately characterized as hostile to civil rights.