The U.S. Senate this week will almost certainly vote to confirm Jeff Sessions of Alabama as the next attorney general. One can hope that the vote would create more unity within Congress, and across the nation, but it will not heal the deep wounds that the legal academy has inflicted on itself over the past two weeks.Just as the legal academy came out in near uniformity against Donald Trump, they have now repeated the performance with the Sessions nomination, as nearly 1,500 law professors from around the country joined a letter opposing the junior U.S. Senator’s appointment to lead the Justice Department. It also led some prominent libertarian law professors who did not join the letter to write separately to declare that Sessions should “trouble libertarians, conservatives and others who care about protecting liberty, constitutional federalism and property rights.”
Rushing to Sessions’ defense were three law professors—Stephen Presser, Scott Gerber, and Michael Krauss—who took the position that the legal academy’s attack on Sessions was “transparently partisan,” even accusing the law professors against Sessions of making a “scandalous statement” betraying “extraordinary arrogance and presumption.” In this academic Battle of Thermopylae, the vastly outnumbered Spartans actually prevailed.
Last week’s hearings focused on Sessions’ record on anti-discrimination law and voting rights, the two principal areas that law professors alleged disqualified him from serving as attorney general. Yet the questioning on these points only underscored Sessions’ fitness for the job—and the frivolity of the claims against him.
The heart of the first issue is that in 2013 Sessions voted against expanding the Violence Against Women Act to include, among other things, federal protection against private discrimination on the basis of sexual orientation. Overlooked here, however, is that in 2000 and 2005 Sessions had voted for the VAWA, even after the Supreme Court had invalidated part of the 1994 law in U.S. v. Morrison (2000) as an improper use of federal power.
While one may reasonably disagree with Sessions on the 2013 amendment and believe that the LGBTQ community is entitled to the same federal protection as women, that does not mean that Sessions is ill-equipped to be attorney general. That’s simply a disagreement on the role of the federal government, not evidence of Sessions’ unfitness to serve. All that should matter is whether Sessions is able and willing to enforce the laws of the United States, to the fullest extent and for all Americans. That is the standard by which previous attorneys general have been examined and that is an obligation Sessions appears firmly committed to honoring.
The core of the second argument against Sessions is that he expressed agreement with the Supreme Court’s decision in Shelby County v. Holder (2013). That decision invalidated the use of a 50-year-old formula, originally established under the Voting Rights Act of 1965, to require only Southern states to obtain federal approval if they wanted to change their voting procedures. Even though Southern states had long since corrected their discriminatory voting regulations so there were no longer disparities in access to the polls, Congress continued to reauthorize the outdated formula based on 1960s voting data, keeping the South under federal oversight in a way no other part of the country was. Sessions, that “deplorable” man now compared to a Klan member, is apparently so racist that in 2006 he was among those who voted for placing these more onerous burdens on the South.
Nevertheless, various Senate Democrats jumped on Sessions because, after the Supreme Court held that it was arbitrary for Congress to impose such geographically discriminatory restrictions, Sessions acknowledged it was a reasonable decision. That’s right—his moral shortcoming was that he simply observed that the Shelby County decision “was good news . . . for the South, in that [there was] not sufficient evidence to justify treating them disproportionately than say Philadelphia or Boston or Los Angeles or Chicago.”
If voting for the Violence Against Women Act twice, and for the very Voting Rights Act formula that the Supreme Court tossed in Shelby County, makes Sessions a bigot, then what does it say about Justice Anthony Kennedy, that frequent darling of the Left who voted to invalidate both statutes?
Some of the allegations against Sessions have highlighted the inconsistencies wrought by the identity politics that have come to dominate the progressive Left. For example, Civil Rights Era icon Rep. John Lewis (D-Ga.), who doesn’t see president-elect Trump “as a legitimate president,” lectured Sessions on his legal provincialism, proclaiming, “We need someone as attorney general who’s going to look out for all of us, and not just some of us.” That is surely true, but nothing in Sessions’ record should draw that commitment into question—including his strict prosecution of a Klan member when he was a U.S. Attorney in Alabama.
Sadly, some recent U.S. attorneys general have not satisfied this minimal requirement, even refusing to enforce voting rights law based on whether the alleged violators were members of “[his] people.” Some attorneys general have even refused to enforce national security law based on whether the alleged violators were elite members of their party.
Such provincialism, however, did not arouse concerns from the legal academy. To the contrary, that very approach led President Obama to consider nominating Eric Holder for the Supreme Court and California to hire Holder as a “legal bulwark against Donald Trump.” In fact, Holder’s partisanship even inspired Above the Law, a leading law blog, to nominate Holder “to lead the resistance,” a movement that apparently involves acquitting all black people accused of committing crimes, including rape and murder, against white people. Oddly enough, people are terrified that Sessions is the one who will look out for just some of us.
Sen. Dianne Feinstein (D-Calif.) likewise reminded Sessions of his special obligation to protect African-Americans. “There is so much fear in this country,” she said—a fear Feinstein sees and hears “particularly in the African-American community.” This is particularly relevant, given the escalating crime rate in many cities, not to mention the recent Chicago kidnapping and torture of a mentally disabled young man, but it is hard to see how an attorney general who declares that “[i]t is a fundamental civil right to be safe in your home and your community” would choose to exacerbate rather than alleviate this fear.
In his dramatic and unprecedented testimony against his Senate colleague, Sen. Cory Booker (D-N.J.) harped on Sessions’ insufficient empathy on illegal immigration and insufficient vigor in seeking to expand civil rights. As Booker eloquently put it, appropriating a Martin Luther King quote that originally came from transcendentalist Theodore Parker, “[t]he arc of the universe does not just naturally curve toward justice.” To resist this natural curve, Booker proclaimed, “America needs an attorney general who is resolute and determined to bend the arc.”
What this boils down to is that Booker believes that the law must be used, and even bent, as a means to achieve progressive ends—particularly, to empathize with law-breakers and to expand civil rights protections beyond their textual commands. That may be an admirable position for a political activist to take, but it is definitively not the attorney general’s obligation in upholding the rule of law.
Law professors, of course, should be concerned about any political official they believe may be insufficiently committed to equal protection under the law. But how can anyone take the professors seriously when they are so nakedly partisan? More than anything, the legal academy’s attack on Sessions appears to be animated by an irrational hostility toward the sound of Sessions’ Southern twang. This coastal chauvinism is dressed up in legally objective reasoning, but that is only a veneer. That they would use this particular veneer is ironic, given the decades of effort these very same progressive law profs have put into deconstructing law, objectivity, and reason—insisting that legal interpretation is inescapably political and thus cannot be based on shared national values or objective rationality.
This irony is particularly sharp when, in order to condemn someone like Sessions, these same law professors distance themselves from their own legal nihilism and invoke the prestige from the halcyon days of the legal academy, harking back to a time when law schools were, at least in spirit, insulated from political agendas. The problem with their making law schools political, however, is that law professors can no longer trade in the intellectual currency that impartiality carries.
But the fact that 1,500 law professors in 2017 have signed a statement against Sessions simply means that 1,500 people employed by the nation’s 200 law schools don’t like Jeff Sessions. That shouldn’t surprise anyone who knows anything about American legal education. What is surprising is that anyone would think this says anything about Jeff Sessions.
Law Professors Not “Above the Fray” in their Opposition to Sessions