- The Washington Times - Tuesday, May 12, 2009

Republicans’ new top man on the Senate Judiciary Committee said even without a new Supreme Court nominee having been named, Republicans will begin looking into the shortlist of names President Obama reportedly is considering and even could warn the White House confidentially if they think a nominee is unacceptable.

It’s a courtesy that Sen. Jeff Sessions, Alabama Republican, who took over as the ranking Republican on the committee last week, might have appreciated himself in 1986.

That’s when, as a 39-year-old U.S. attorney whom President Reagan had nominated to a federal district court in Alabama, he was one of the first to be “Borked” — a later term referring to Judge Robert Bork, whose 1987 nomination was derailed by an assault from liberal interest groups and lawmakers such as Sen. Edward M. Kennedy. Mr. Sessions had heard it all before — Mr. Kennedy’s “Robert Bork’s America” floor speech in 1987 sounded like an expanded version of the statement the senator had made in the Judiciary Committee a year earlier, in which he had said Mr. Sessions was “a throwback to a shameful era.”

“The same tactics were used on Bork, on Clarence Thomas, on William Rehnquist, but I was the first,” Mr. Sessions told The Washington Times in an extensive interview last week that recounted the accusations of racism that were leveled against him and the lessons he learned that have led him to vow Republicans won’t engage in those tactics under his watch.

“The charges were so hurtful, and they would stick, and then the refutations never got as much play. So I made up my mind that I was not going to let that bother me, but one thing I’ve said over the years, to the extent I’m able, I’m going to make sure the next poor slob that’s down at that table gets a decent shake,” Mr. Sessions said.

That next person at the witness table in the Judiciary Committee hearing room could be the replacement Mr. Obama names for retiring Supreme Court Justice David Souter. That nomination will be the first big challenge for Mr. Sessions, who finds himself having to organize committee Republicans and their staff in the middle of a session of Congress. He took over last week after Sen. Arlen Specter, who had been the top Republican on the committee, switched parties.

Mr. Sessions said he won’t prejudge any potential nominee but said his staff will begin scouting the names being floated so they aren’t caught off-guard when Mr. Obama announces his pick.

“We need to begin to do some of that now. And it’s possible that we could warn the White House at some point confidentially about this or that nominee — before they make a nomination,” he said.

However, with Democrats bordering on the 60 votes needed to stop filibusters, Mr. Sessions said he knows Republicans don’t have many tools to stop a nominee — and he said he has “opposed, [and] I have grave doubts about, the use of filibusters.”

Still, he says that despite his own experience, questions about a nominee’s record, past writings, conflicts of interest and judicial philosophy are all fair game — and he said with Democrats likely reflexively to back Mr. Obama’s nominee, Republicans will have to ask those questions. However, he said if a nominee is stopped this time, it will be because Republicans raise objections with which Democrats are forced to concur.

Mr. Sessions said he’s organizing his own kitchen cabinet to figure out how to approach nominees — he mentioned former Attorney General William Barr and former Assistant Attorney General Viet D. Dinh as well as former Senate chiefs of staff — and said he hopes to put forward some principles to which both Republicans and Democrats can agree about “what we should look for in a nominee.”

“What I believe about the process, and the people I’m talking to, I think most Republicans would agree and maybe most Democrats would agree with what the principles we ought to apply in the process, so we just need to slow down a bit,” he said.

Mr. Sessions subscribes to the umpire analogy Chief Justice John G. Roberts Jr. used during his confirmation hearing, in which he said judges, like umpires, call balls and strikes according to the law. Mr. Sessions said that should take precedence over other considerations, such as Mr. Obama’s desire for a judge who shows “empathy,” among other characteristics.

“It’s not empathy, it’s who has a meritorious claim. And if we give that up, then we’ve given up the magnificence of the American legal system,” he said. “This is what it comes down to. You don’t want the judge saying, ‘Well I’ve got more empathy for the Yankees than the Red Sox [so] that’s a ball.’”

Mr. Obama has promised to consult with senators and already has made calls to some of them, including former chairmen Sen. Orrin G. Hatch, Utah Republican, and Sen. Arlen Specter, the Republican-turned-Democrat from Pennsylvania. Mr. Obama also called Mr. Sessions after Republicans selected him to lead the committee last week, but Mr. Sessions said that was not consultation.

“It was a courtesy call, it was really gracious; we had a nice conversation, but we didn’t go into qualities or names, and precisely what his thinking is,” he said. “So it may be as time goes by he would want to talk about people by names; that would be received very well.”

For his part, Mr. Sessions vows he has no interest in re-fighting his 1986 nomination battle and says he gets along with his opponents from that time, including Mr. Kennedy; Mr. Specter; Vice President Joseph R. Biden Jr., who was then the ranking Democrat on the committee; and Sen. Patrick J. Leahy, the Vermont Democrat who is the committee’s chairman.

Even though Republicans controlled the Senate and the committee, Mr. Sessions’ nomination died in committee on two votes: first, a 10-8 vote against approval, in which Mr. Specter and another Republican voted against Mr. Sessions, and second a 9-9 vote on sending the nomination to the floor without approval. Mr. Specter voted in favor of the second motion, but another Republican joined all eight Democrats in voting Mr. Sessions down. Mr. Leahy voted by proxy, as did Sen. Robert C. Byrd, West Virginia Democrat, who also remains in the Senate.

Mr. Specter recently said he regretted having cast that vote against Mr. Sessions.

But one of those who testified against Mr. Sessions, Gerald Hebert, then a trial lawyer in the Civil Rights Division of the Justice Department, said there’s no reason Mr. Specter should question his old vote.

“I know there’s a club [atmosphere] in the Senate, but the fact of the matter remains: It’s not that his vote at that point was a mistake, it’s that now he’s had the opportunity with the passage of 23 years to see a different Jeff Sessions,” Mr. Hebert said in a telephone interview.

Mr. Hebert testified to the committee in 1986 that Mr. Sessions had “made some comments that show racial insensitivity,” including agreeing with a statement that a certain civil rights lawyer was “either a traitor to his race or a disgrace to his race.” At the hearing, Mr. Sessions also found himself explaining his decision to prosecute a voter-fraud case brought against three civil rights workers in Perry County, Ala.

Mr. Hebert was one of dozens of witnesses who testified over four days of hearings lasting a total of 19 hours. Mr. Sessions testified twice, getting called back on the final day to rebut charges he had failed to answer well on his first day.

Mr. Hebert said he was not part of any coordinated campaign to derail Mr. Sessions, as some Republicans, including Mr. Sessions, say they believe. Mr. Hebert said one proof of that is that he was called as a witness by the Republicans on the committee.

“I think in his case, his own statements doomed his nomination. And while he tried to shrug them off back then as either being something taken out of context or said in a joking manner, none of us who had conversations with him or heard the things he said felt he was joking,” said Mr. Hebert, who is now executive director of the Campaign Legal Center, which works on campaign-finance and elections issues.

Mr. Sessions to this day says the prosecution in the Perry case was correct and says the other objections to him were fabrications.

“I had never been supportive of any kind of racial bias. I reject that whole mentality. I really became a Republican in opposition to [Alabama] Gov. [George C.] Wallace and his racial demagoguery and campaigned against him as a young college student,” Mr. Sessions said.

He stands by his belief that there was a coordinated campaign to deny Mr. Reagan’s nominees a seat on the bench and that he was a victim of that.

“This was a planned thing,” he said flatly.

More than two decades later, those involved in Mr. Sessions’ nomination say they have moved on, but the record compiled then will not be forgotten. And just as Democrats may mine the testimony for ammunition to paint Mr. Sessions in a bad light during a future confirmation battle, Democrats may have to be worried about the standards laid out by then-Sen. Biden for judicial nominees to have to prove themselves worthy of confirmation.

“This is not a court of law. It is the burden upon any nominee who wishes to be a federal, district or circuit judge or Supreme Court justice — it is their burden to demonstrate that they, in fact, meet all the criteria required to be on that court, not the burden of this committee,” he said, adding, “Number two, we also have fallen into the notion here that any recantation should be accepted on its face. Again, whether it is this nominee or any other nominee in the future, such recantations and assertions that they will support the Constitution are not in and of themselves reason, in this senator’s view, for us to support a nominee.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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