The Democrats’ opening salvo against the nomination of Jefferson Beauregard Sessions III isn’t all that impressive. It comes down to a complaint that Sessions swamped them with so many documents that they can’t adequately review them between now and the scheduled confirmation hearings on January 10th and 11th. Maybe so, but the public couldn’t possibly care less.
Their more salient (politically) attack is that Sessions pretended that the elephant in the room simply isn’t there.
Sessions, 69, returned his questionnaire to the committee amid little fanfare late last Friday evening. The former U.S. attorney and attorney general for the state of Alabama dutifully listed his employment record. But under a section asking for “any unsuccessful candidacies you have had for elective office or unsuccessful nominations for appointed offices,” Sessions didn’t mention his failed bid for a federal judge post.
I’ve written about this several times, but one of the most noteworthy things about Sessions’ career is that he was nominated for a federal judgeship by Ronald Reagan and rejected by the Senate Judiciary Committee because he was too obviously a racist.
On June 5, 1986, the Committee voted 10–8 against recommending the nomination to the Senate floor, with Republican Senators Charles Mathias of Maryland and Arlen Specter of Pennsylvania voting with the Democrats. It then split 9–9 on a vote to send Sessions’ nomination to the Senate floor with no recommendation, this time with Specter in support. A majority was required for the nomination to proceed. The pivotal votes against Sessions came from his home state’s Democratic Senator Howell Heflin of Alabama. Although Heflin had previously backed Sessions, he began to oppose Sessions after hearing testimony, concluding that there were “reasonable doubts” over Sessions’ ability to be “fair and impartial.” The nomination was withdrawn on July 31, 1986.
I’m going to make a little diversion here and talk about Senate procedure. In particular, I want to talk about the Senate Judiciary Committee’s use of “blue slips.”
One way in which senatorial courtesy has manifested itself is something called the “blue slip.” This is a device used by the Senate Judiciary Committee to communicate with the home-state Senators about a nomination to the U.S. courts of appeal or district courts, or to be a U.S. marshal or U.S. attorney. When a nominee is referred to the committee, the committee sends a letter (typically on light blue paper) asking the two home-state Senators to take a position on the nomination. The Senators check off the appropriate box on the sheet — either approve or disapprove — and return the paper to the Judiciary Committee.
Now, Sen. Howell Heflin obviously signed that blue slip with the “approve” check box marked. If he hadn’t, it’s unlikely that there would have been any Sessions hearings at all. While a blue slip rejection isn’t a hard veto, it has traditionally been as close to that as you can get. For this reason, presidents do not ordinarily nominate someone for the district or Appeals courts unless they’ve already lined up the support of both home state senators.
Yet, after hearing the testimony in the hearings, Sen. Heflin changed his mind and voted against Sessions. One might understand Arlen Specter being appalled, but Alabama Democrats in the mid-1980’s weren’t unfamiliar with a little history of racial insensitivity, and they had a pretty high bar before they thought someone was beyond hope. As for political self-interest, it’s not clear to me that Heflin didn’t put himself at more risk by opposing Sessions than he would have by voting to confirm him.
So, Sessions didn’t even get a vote on the Senate floor. He was humiliated.
But he got his revenge in several ways, and is still doing so.
First, ten years later, he got elected to the body that had rejected him in 1986. Then we won a position on the committee that had rejected him. Then he became the ranking member (senior Republican) on the committee that rejected him. And now he is positioned to take over the entire justice system of the United States.
How’s that for progress in racial relations in the Republican Party and in this country as a whole?
In any case, Sessions somewhat less than deftly forgot to mention that any of this had ever happened when he was filling out his paperwork in preparation for his upcoming confirmation hearings.
But it remains the case that Sessions was too racist for his own home state Alabama senator in 1986 and so was summarily rejected for a position on the U.S. District Court for the Southern District of Alabama.
Thirty years later, the same committee is supposed to determine that he’s not too racist to run our Justice Department.
There was never a chance that the Democrats would fail to mention this mind-bending situation.