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January 8, 2017

Why I think at the hearings for AG, Senators should try to kill... question with conservative kindness

Sessions_Attorney_General_59616.jpg-7a740-3355This new Washington Post article, headlined "Jeff Sessions should have been a tough sell in the Senate, but he’s too nice," details some reasons behind my thinking that it is unwise for advocates of criminal justice reform to adopt an overly aggressive opposition posture to Prez-Elect Donald Trump's nominee for Attorney General, Senator Jeff Sessions.  Here are excerpts from the piece, with a few lines emphasized for commentary to follow:

He is one of the more well-liked members of the Senate, a place that still retains elements of one of the world’s most exclusive clubs.  He is genial, respectful and patient toward colleagues and staff.  And that has given fellow Republicans and even some Democrats reason not to scrutinize the more unsavory allegations of his political history.

Take Sen. Susan Collins, a moderate Republican from Maine who, under other circumstances, might be a target for Democrats to peel off in hopes of defeating Sessions’s nomination. Instead, she’s his lead spokeswoman....  “He’s a decent individual with a strong commitment to the rule of law.  He’s a leader of integrity,” Collins said in an interview, dismissing attacks from liberal activists about his conservative views and his actions as a young prosecutor. “I think the attacks against him are not well-founded and are unfair.”...

“I genuinely like him,” said Sen. Christopher A. Coons (D-Del.), a member of the Judiciary Committee.  Coons still might vote against Sessions because of the “stark differences” between the two on policy, but they are friends....

[M]ost senators tend to see Sessions in the same way Collins does — as a friendly man who never broke his word to them.  Many have prayed with him and traveled with him on official overseas trips.  Almost no one wants to review the original allegations against him during his 1986 nomination; for the most part, they don’t think that he is the racist that some have painted — at least not anymore.  “I don’t know the dynamics of what happened then, but I can speak to Jeff’s character in the 20 years that I’ve known him,” Collins said....

One senator who has wanted to focus more on Sessions’s past on race is Sen. Tim Scott (R-S.C.), the chamber’s only black Republican. “I think judging a person on 30-year-old history is questionable. Eliminating or exempting 30-year-old history is probably not wise as well,” Scott said. “So, making sure that you understand what it actually was and who he is, has been an important part of what I’ve tried to do.”

Scott hosted Sessions in mid-December in North Charleston with activists who peppered him with questions about federal prosecution of a police officer who fatally shot a black man in the back. “The attorney general’s position has more impact on communities of color than perhaps any other nominee,” Scott said, adding that he was still considering the nomination.

By and large, senators want to focus on other topics. And there’s plenty there to discuss, from how Sessions would handle the deportation of illegal immigrants to allegations that in 1995, while serving as state attorney general, he supported the use of chain gangs for prisoner work.

Coons suggested that Sessions had so many staunchly conservative positions in “the recent past” that there was little need to relitigate the 1980s. He spent an hour with Sessions on Thursday talking about legal philosophy. Coons and Sessions have spent the past six years talking at the Senate’s weekly Bible study and working out together in the gym.

The lines I have stressed here highlights my belief that everyone interested in criminal justice reform ought to be looking toward the Sessions' hearing as a high-profile opportunity to make in a high-profile and high-impact way the strong conservative case for criminal justice reform (and especially federal sentencing reform).  Particularly because it seems all but certain that Sessions will be confirmed as Attorney General, I hope that some folks inclined to oppose Sessions appreciate that it could be much more productive at this week's hearings to try to co-opt Sessions from the right rather than attack him from the left.

For the record, and as highlighted by this recent helpful Brennan Center analysis, I fully understand how Senator Sessions' record in the criminal justice arena makes so many advocates so concerned and so eager to fight.  But these advocates should remember that, in just the past few years, a number of tough-on-crime GOP stalwarts like Senator Charles Grassley and Representative Jim Sensenbrenner have become vocal advocates for federal sentencing reform.  Indeed, a large number of prominent GOP Senators on and off the Judiciary Committee have been vocal supporters of federal sentencing reform in some form — I am thinking here of Senator Cornyn, Cruz, Lee, Paul and Tillis among others — and these folks seem to view (rightly, in my opinion) sentencing reform as conservative cause.

Of particular importance in this context, especially given the passages stressed above, are what I might call the "equal justice" and "religious redemption" arguments for federal reforms. As noted in this prior post, Senator Sessions was an early and prominent voice calling for a reduction in the crack/powder 100-1 federal sentencing disparity. This suggests Sessions might in a hearing voice support for sentencing reforms intended to reduce unequal application of the harshest mandatory minimum sentencing terms. And all the references to prayer above leads me to think Sessions also could and would be moved by religious leaders talking about the importance of second chances (which, I surmise, help moved Senator Grassley and also fits with the huge and too-often-overlooked corrections part of the SRCA).

Even more fundamentally, though Senator Sessions has roots and a history supporting a big and tough federal criminal justice apparatus, lots of his GOP colleagues are very skeptical of federal prosecutorial powers, and for good reason.  Notably, Senator Sessions has himself expressed concerns on the Senate floor about federal prosecutors "encroach[ing] upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction."  Especially in the arena of marijuana reform and perhaps business crimes more generally, I also think Sessions could and should be questioned about the conservative case for keeping the federal Justice Department out of what are generally local matters.

In the end, this all may be wishful thinking on my part, a desire to turn a glass more than half-empty upside-down so that it looks close to half full. But given all the remarkable and important criminal justice reform work done and supported robustly in recent years by self-described conservatives, I am strongly disinclined to view Senator Sessions as a Darth-Vader-like character until he actually starts ordering the Justice Department to begin work on a Death Star.

A few prior related posts on the AG-nominee Sessions:

January 8, 2017 at 02:08 PM | Permalink

Comments

"a desire to turn a glass more than half-empty"

seems to be a trend of various posts while others go the other direction ... maybe the average is okay though

Posted by: Joe | Jan 8, 2017 3:08:30 PM

Look at Hugo Black's early "history" when he was a klan member. But in later life on the U.S. Supreme Court he was one of the best civil rights advocates we have yet seen.

Posted by: Liberty1st | Jan 8, 2017 5:23:58 PM

Black was a Klan member because you basically had to be one to be a mainstream pol those days like being a member of the communist party in Russia. He wasn't an active member or something. Sessions did more to earn his opprobrium.

Posted by: Joe | Jan 8, 2017 5:31:51 PM

Joe. Feminism is to 2016 what the KKK was to 1916, PC, assumed to be correct, a white supremacy ideology, a lawyer founded, run, and promoted enterprise, serving the agenda of and enriching the lawyer profession.

As there should be zero tolerance in any government funded or affiliated activity for a member of the KKK, so there should be zero tolerance for feminism. All institutions or agencies receiving government funding or subsidy should be purged of feminists and male feminist supporters.

Posted by: David Behar | Jan 8, 2017 7:49:24 PM

Democrats have zero leg to stand on. Eric "Marc Rich" Holder--need I say more?

Posted by: federalist | Jan 9, 2017 9:10:12 AM

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