By Les Francis
Special to Calbuzz
In all likelihood, sometime later this month U.S. Solicitor General Elena Kagan will be confirmed as an Associate Justice of the United States Supreme Court. Her confirmation hearings showed Ms Kagan to be smart, intellectually nimble, charming, infinitely reasonable and tolerant.
The same cannot be said about her chief antagonist on the Senate Judiciary Committee: Jefferson Beauregard Sessions III, Republican of Alabama.
Sessions led the charge against Kagan from the day President Obama announced her nomination to the nation’s highest court. His opposition was immediate, shrill and to many, offensive.
Sessions’ arguments were offensive, not because they were made in opposition to a judicial nominee of whom he disapproved. That’s his right, after all. But rather because of what one can easily surmise lay behind his position.
Let’s start with the premise that Sen. Sessions’ own biography is just as important to the confirmation process as is a nominee’s.
Appointed U.S. Attorney for the Southern District of Alabama by President Ronald Reagan in 1981, Sessions went on to be nominated by Reagan to be a U.S. District Court judge in 1986. And it was that confirmation process that is relevant to today’s conversation. Sessions failed to be confirmed, not because the political opposition was out to “get” him, but rather because his life story was not quite as sterile and mainstream as Ms Kagan’s has turned out to be.
Although the Republicans held the majority in the Senate in 1986, and therefore dominated the Senate Judiciary Committee, Sessions’ nomination to the Federal bench was derailed, on a bi-partisan vote, after it was revealed that the nominee had harbored, or at least had expressed, racist sentiments during his time as U.S. Attorney.
During those 1986 hearings, a number of Justice Department officials, including J. Gerald Hebert (a man of impeccable professional credentials and high personal integrity), testified under oath that Sessions had made racist statements in their presence. Moreover, Gerry Hebert said that the nominee had referred to the NAACP and ACLU as “un-American and “Communist-inspired.”
And what was Sessions’ rationale for such a serious charge? Those organizations, among others, had—in Sessions’ view—“forced civil rights down the throats of people.” Hebert went on to recount how Jeff Sessions had once referred to a white civil rights lawyer who dealt with voting rights cases a “disgrace to his race.”
Another Justice Department lawyer, an African American Assistant U.S. Attorney, testified that Sessions once said he thought the Ku Klux Klan was “OK until I found out they smoked pot.” The same witness also alleged, under oath, that Sessions had once referred to him as “boy”, and that “Mr. Sessions admonished me to ‘be careful what you say to white folks.’”
Sessions defended himself by claiming that his remarks were taken out of context, or that they were innocent “jokes”, and comments meant in jest. Sessions’ notion of what is funny must be examined in the context of the past week’s hearings wherein he and other Republicans attempted to discredit Ms Kagan by trashing the noble and historic role played by her mentor, the late Supreme Court Justice Thurgood Marshall, the first African American ever appointed to the Supreme Court.
Sessions’ own temperament and character became evident during the course of a particularly disturbing exchange with then-Democratic Sen. Joe Biden in those 1986 hearings. Biden asked Sessions whether or not he had referred to the NAACP and other civil rights groups as “un-American.” Astonishingly, both at the time but particularly in retrospect, Sessions’ defense was, “I’m often loose with my tongue. I may have said something about the NAACP being un-American or Communist, but I meant no harm by it.”
No harm? Indeed!
Whether or not Sen. Sessions has a right to be bitter still over that experience and outcome in 1986, when he became only the second person in a half century to be denied confirmation to a federal judgeship is arguable. What is not okay, however, is to argue that Sessions’ own record and rhetoric aren’t fair game as he goes about trying to defeat Ms Kagan or any future judicial nominees put forward by President Obama.
Moreover, if someone of Sessions’ caliber is going to go after the likes of Elena Kagan and Thurgood Marshall through the use of innuendo and code words, then he should expect to be subjected to critical cross-examination and vigorous challenge by his colleagues, the media, and American citizens of all types and persuasions.
It’s way past time to put a stop to cheap shots and demagoguery, especially when employed by politicians whose own records are suspect, or worse.
Les Francis is a Washington-based public affairs and political consultant. He is former chief of staff to then U.S. Rep. Norman Y. Mineta (D-San Jose) and Deputy White House Chief of Staff to President Jimmy Carter. He also served as Executive Director of the Democratic National Committee and the Democratic Congressional Campaign Committee.