By Richard Fording, Special To The Washington Post
Sen. Jeff Sessions, R-Ala., has been the subject of intense debate ever since Donald Trump nominated him to be attorney general. His critics argue that he could lead a radical rollback of civil rights policies, while supporters defend his record as more moderate. Sorting the truth about Sessions from the hyperbole isn’t easy.
Myth No. 1: Sessions has an unusually poor record on civil rights.
Sessions has been called a “threat to civil rights” and “unfit ” for his post, largely because of what critics see as his “alarming history of opposing civil rights” and support of policies that reinforce discrimination and produce “racist outcomes.”
In reality, he isn’t an outlier among Senate Republicans. Yes, Sessions’s voting record shows that he is a consistent opponent of expansive civil rights legislation. So are many of his colleagues. During the 114th Congress in 2015 and 2016, for instance, the advocacy group Leadership Conference on Civil and Human Rights tracked 21 key Senate votes; Sessions opposed the group’s position every time, and he did the same in the previous Congress. However, this is not unusual within the Republican Party. In the 114th Congress, Sessions was one of 16 senators, all Republicans, to receive a score of zero, and one of 18 GOP senators in the 113th Congress.
And Sessions is no less popular among African American voters than most other Republican lawmakers are. According to the 2014 Cooperative Congressional Election Study conducted by researchers at Harvard University, the average approval rating for all Republican senators among their African American constituents was 27 percent. Sessions’s approval rating was 25 percent, the same as for Sen. Richard Shelby, R-Ala. That’s certainly low, but it doesn’t make Sessions an outlier.
Myth No. 2: Sessions has been a champion of civil rights.
The Trump transition team and its allies have tried to argue, on the other hand, that Sessions is a civil rights champion, citing several cases he handled as a U.S. attorney and as Alabama’s attorney general. As a New York Post editorial put it, “Sessions desegregated schools and successfully prosecuted the head of the state Ku Klux Klan for murder – then, as the state’s attorney general, saw the killer executed.” On his radio show, Sean Hannity even went so far as to proclaim that Sessions’s civil rights record is “second to none.”
These claims are exaggerated. Sessions was involved as a U.S. attorney in the investigation of Henry Hays, a Klan member suspected of lynching Michael Donald in Mobile, Alabama, in 1981. But as the Atlantic noted, the principal players in the case say that Sessions merely played a “supervisory role.” The case was not prosecuted by Sessions; it was prosecuted in state court, which is where Hays received the death penalty. Sessions had become Alabama’s attorney general by the time Hays appealed his sentence. He opposed the appeal, and Hays was executed in 1997.
Perhaps the most significant exaggeration involves Sessions’s role in desegregating Alabama’s schools. There is no record that he ever filed such a case, and he certainly did not participate in “20 to 30” such cases, as he once claimed in 2009.
Sessions was involved in a handful of voting rights cases while he was a U.S. attorney. But his role was relatively minor.
Myth No. 3: Sessions plans a crackdown on illegal immigration.
Much of the opposition to Sessions’s nomination revolves around his record on immigration policy. Reports have predicted that he would lead a crackdown on illegal immigration, perhaps involving mass deportations. Sessions has a long record as a crusader against both legal and illegal immigration, constantly pushing Congress to pursue harsher border security and immigration measures.
If he is confirmed, though, his ability to do what his critics fear will be constrained by the federal bureaucracy, local law enforcement officials and even Republicans in Congress.
Most federal immigration enforcement falls to another Cabinet agency, the Department of Homeland Security, which contains both U.S. Customs and Border Protection and Immigration and Customs Enforcement. The attorney general does have important relevant powers: The immigration court system is part of the Justice Department, for example, and Sessions would be able to appoint immigration law judges. In recent years, though, only 25 percent of deportations have been processed through immigration courts. The vast majority have come via DHS and don’t require a court appearance. Only about half of the cases that do go through immigration courts result in a removal. Meanwhile, “sanctuary cities” around the country, which don’t enforce federal immigration laws, have promised to resist any attempted crackdown, even if Sessions threatened to cut federal grants to their police departments.
It may be impossible to increase deportations dramatically, anyway, no matter what Sessions might prefer. The Obama administration already deported record numbers of people, earning President Barack Obama the sardonic title of “deporter in chief” among immigration advocates. The undocumented population has decreased. And House Speaker Paul Ryan indicated recently that Congress won’t go along with mass deportations of undocumented immigrants who don’t have criminal records.
Myth No. 4: Sessions would revive an ’80s-style war on drugs.
“The war on drugs is coming back” under Sessions, Slate predicted in November. Similar warnings have appeared in Politico and Newsweek. As a U.S. attorney, Sessions had a reputation for aggressive prosecution of drug offenses. And in the Senate, he has pushed for tougher enforcement of drug laws.
Federal drug enforcement may become a higher priority under Sessions than it was under Obama’s attorney generals. But bringing back a full-scale war on drugs – a la Nancy Reagan’s “Just Say No” campaign – isn’t likely.
Critics fear that Sessions would go after the marijuana industry in the states that permit medical marijuana (28 states and the District of Columbia) or recreational uses (eight states and D.C.). Under the Obama administration, the Justice Department chose not to pursue most individual recreational users in states that had legalized marijuana, instead focusing on preventing distribution to minors or across state lines. During his confirmation hearing, Sessions described the current solution for dealing with inconsistency between state and federal laws, crafted by former attorney general Eric Holder, as “truly valuable.” He added that more comprehensive enforcement of federal marijuana laws in these states is “a problem of resources for the federal government” – suggesting that it’s not worth the cost.
Read related stories: Sessions suggests Feds may return to tough line on marijuana if he’s AG
Sessions could influence other federal drug policies: He would have broad discretion to redirect resources and shape prosecution and sentencing practices in ways that could lead to a significant increase in federal prison sentences for drug offenders. But as USA Today points out, Sessions has “reversed course on harsh drug sentence policy” in recent years, working with Democrats to co-sponsor legislation to reduce disparities between punishments for crack and powder cocaine, which led to significantly longer sentences for black drug offenders than for white ones.
Myth No. 5: On gay rights, Sessions just wants to enforce the law.
Sessions’s allies say his record doesn’t show any particular antipathy toward lesbian, gay, bisexual and transgender rights. He is “a respecter of the law,” a Washington Examiner column argued. A post on the conservative blog Power Line said Sessions shouldn’t be criticized for attempting to block an LGBT conference at the University of Alabama in 1996, because as the state’s attorney general, he was just enforcing a law against using state funds or facilities for activity that promoted “actions prohibited by sodomy and sexual misconduct laws.”
The senator’s record of opposing gay rights, however, is clear. Unlike on the question of racial inequality, where there are some examples of Sessions moderating his positions, there is no evidence that he has softened his opposition to rights for gays and lesbians. He has a long history of opposing every important piece of legislation aimed at expanding such rights. He was one of the most vocal opponents of the Hate Crimes Prevention Act of 2009, which expanded the definition of hate crimes to include attacks on people because of their sexual orientation or gender identity.
LGBT people are the most likely to be targets of hate crimes, and as attorney general, Sessions would be in charge of enforcing this law. While he told the Senate that he now sees same-sex marriage as settled law that he will uphold, he co-sponsored the State Marriage Defense Act of 2014, which would have allowed a state’s definitions of “spouse” and “marriage” to supercede the federal definitions.
He is currently a co-sponsor of the First Amendment Defense Act, which groups like the ACLU say would “open the door to unprecedented taxpayer-funded discrimination against LGBT people” by prohibiting the federal government from taking action against groups that refuse to serve gays and lesbians.
Fording is the Marilyn Williams Elmore and John Durr Elmore endowed professor of political science at the University of Alabama.