In a Senate Judiciary Committee hearing three days after Trump’s remarks, Leahy urged his colleagues to reject the Republican candidate’s proposal, asserting it would run “contrary to the fundamental principles on which this nation was founded.”
“I know many on this committee, on both sides of the aisle, have rightfully expressed their outrage about the call earlier this week to shut our borders to Muslims,” Leahy said then. “Now, let’s just go on record as formally rejecting this reprehensible proposition.”
And while Leahy’s resolution was voted out of the committee with strong bipartisan support, 16 to 4, there was one staunch opponent: Republican U.S. Sen. Jefferson Beauregard “Jeff” Sessions III.
Sessions, of Alabama, is now President-elect Trump’s nominee for attorney general, and confirmation hearings set to kick off Tuesday will be contentious, given his anti-immigration stance, inflammatory racial remarks and history of opposition to the Voting Rights Act.
Leahy has sparred with Sessions for years over civil rights issues, and that animus will likely surface again this week.
In the last major dustup between the two senators more than a year ago, Sessions filibustered for more than a half-hour on Leahy’s resolution to allow Muslims into the United States. He called it a “reckless resolution” that “could have pernicious impacts for decades.”
“Is the national interest to admit the ISIS member equally with the Buddhist?” Sessions asked. “Is it wrong to say that immigration must serve the legitimate interests of America and that others are more likely than those committed to violent ideologies? After all, we can’t admit everybody. Is it better to admit those that admire America, affirm its constitutional order, than those who would be unhappy, unfulfilled, until their vision for the country more closely parallels their religious vision?”
Leahy curtly returned fire.
“It’s wrong,” he said, clearly upset. “It’s wrong.”
On Friday, Leahy said he was “shocked” by Sessions’ objections to his 2015 resolution. The senior senator recalled the struggles of his own grandfather, who as an immigrant faced discrimination while searching for stonecutting work in Barre.
“The signs on some of the buildings said, ‘No Irish need apply,’ while some were more to the point: ‘No Catholics need apply,’” Leahy said. “Those stories have always stuck in my mind. I’d like to think that this country wouldn’t be like that again.”
Leahy fears that Sessions will set policies that discriminate against immigrants and Muslims.
A long-running duel
The two senators have been at odds since 1986.
As a junior member on the Judiciary Committee, Leahy came into contact with the 39-year-old Sessions, a U.S. attorney from Alabama who had been nominated for a federal judgeship by Republican President Ronald Reagan.
Sessions was plagued by accusations of racism during those confirmation hearings. The most devastating material came from Thomas Figures, a black assistant U.S. attorney who worked with Sessions. Figures said Sessions had, among other things, spoken positively about the Ku Klux Klan and labeled the National Association for the Advancement of Colored People as “’un-American.”
Sessions’ judgeship was blocked by the Senate Judiciary Committee. It was the second time a candidate for the federal courts had failed to get through that committee in 49 years. Leahy is the sole remaining senator who voted against Sessions’ 1986 nomination.
Sessions later served as Alabama’s attorney general before being elected to the U.S. Senate in 1996.
Asked Friday if he would vote to confirm Sessions, Leahy raised strong concerns but said he wouldn’t make a final decision until after he had grilled the Alabama senator.
“Sessions may be a friend of mine, but I worry about the votes that he has taken, and I worry whether he has a commitment to the rights of all Americans,” Leahy said. “If you don’t have that commitment, you don’t have the qualifications to be attorney general.”
Sessions’ Senate office did not respond to requests by VTDigger for comment.
There are just a few areas where the two are in accord, and in nearly two decades, Leahy has signed on as a co-sponsor to just seven bills introduced by Sessions.
A VTDigger analysis of bills on which the two have closely collaborated shows agreement on copyright and patent law, as well as the Law Enforcement Officers Safety Act and the Crime Victims Fund Preservation Act.
A vast gulf in political ideology divides the two men. They have opposite points of view on civil liberties issues, ranging from sanctuary cities to federal surveillance powers.
If confirmed as attorney general, Sessions can be expected to reshape federal criminal justice and immigration policies, many of which would have a direct impact on Vermont.
Civil rights
Sessions is proud of his Southern heritage and has spoken about his grandfather’s death as a Confederate soldier at the bloody Battle of Antietam. Sessions is named after Jefferson Davis, the first and only president of the Confederate States of America, and his family history has informed his political ideology. He believes, for example, that the Confederate battle flag should be flown on public buildings.
During a 2009 judiciary hearing, Leahy gave Sessions a backhanded compliment for quoting passages from northern Civil War heroes.
“I’m delighted to hear someone from Alabama quote, approvingly, Ulysses S. Grant and Abraham Lincoln,” Leahy told Sessions, smiling. “The world has come full circle.”
Civil rights groups, including the NAACP and the American Civil Liberties Union, and 1,300 law professors, oppose Sessions as attorney general because of his record on civil rights.
The Alabama senator, however, dismisses any suggestion that he holds discriminatory beliefs.
His record is mixed.
In 2006, Sessions voted in favor of renewing the Voting Rights Act. He also introduced a bill last year to award Congressional Gold Medals to civil rights activists who marched in Bloody Sunday and the Selma march for voting rights — one of the few Sessions bills Leahy co-sponsored.
But during the 2006 debate to reauthorize the Voting Rights Act, Sessions argued for the repeal of Section 5 — which required federal approval of any election-related changes in nine Southern states with a history of voting discrimination. (One of those nine states was Sessions’ Alabama.)
During his 1986 hearing, Sessions called the Voting Rights Act a “piece of intrusive legislation.” And while his words weren’t as charged during the 2006 debate, he said the authorization did “little to acknowledge the tremendous progress made over the past 40 years.”
The reauthorization became law with Section 5 intact, though the 2013 Shelby County v. Heller Supreme Court decision stripped out Section 5.
In 2014, Leahy introduced legislation that would have reinstated a similar enforcement mechanism to Section 5, though he tweaked the formula so states with a clean record of 15 years would not be subject to federal oversight.
Sessions did not support the bill, and when Leahy held a judiciary hearing on the current state of voting rights in America, the Alabama senator was a no-show.
Sessions has also expressed hard-right beliefs that marginalize other groups, including women and the LGBTQ community.
He voted for a constitutional ban on same-sex marriage, frequently calls for the government to defund Planned Parenthood, and has been an oppositional force to legislation broadening hate crime protections.
Leahy’s 2013 reauthorization of the Violence Against Women Act was also opposed by Sessions, who, along with other Republicans, suggested it improperly expanded protections for illegal immigrants.
Leahy would not say that Sessions harbors racist beliefs, but he openly questioned whether, as attorney general, he would protect the rights of African-Americans. Leahy concluded that, in the era of Trump, marginalized groups now “face a dangerous world.”
Criminal justice reform
In a town hall-style meeting in March, Trump said: “I do think we can do a lot of privatizations and private prisons. It seems to work a lot better.”
According to Politico, the GEO Group — which currently holds a private prison contract with Vermont — hired two of Sessions’ former aides in October.
Vermont has reduced its prison population over the last few years, but the state still uses out-of-state private prisons to house some inmates.
In recent years, both Republicans and Democrats have acknowledged the need to lower the prison population, and Congress has come close to passing the Sentencing Reform and Corrections Act, of which Leahy is a lead sponsor.
The sweeping bill would, among other things, reduce mandatory minimum sentences for nonviolent offenders and give greater sentencing discretion to judges. The bill has amassed a whopping 37 co-sponsors, including conservative Republican senators like Mike Lee of Utah and Joni Ernst of Iowa.
Sessions has been one of the chief opponents of the criminal justice reform bill.
“I think we’ve gone far enough, and we’re moving too fast,” Sessions said in May. “My best judgment, of my many years in law enforcement, is that the bottom of crime rates have been reached, and the rise we’re beginning to see is a long-term trend. The last thing we need to do is a major reduction in penalties.”
However, he has occasionally worked with Democrats on criminal justice reform.
In 2010, the Alabama senator worked with Leahy and other Democrats on the Fair Sentencing Act, which reduced sentencing disparities for those caught with powder cocaine versus crack cocaine.
Surveillance
On the Feb. 5, 2006, edition of CBS News’ “Face the Nation,” Leahy and Sessions grappled over the recent revelation that then-President George W. Bush had secretly authorized monitoring of email and phone calls of Americans suspected of terrorist activity without gaining warrants through the courts.
Leahy pushed back on Sessions’ assertion, saying that “the Republican-led House and Senate, with due respect to my present colleague here, they don’t do real oversight. And I think that any, any president, Democratic or Republican, if nobody’s going to question them about it, of course they’re going to make mistakes. It’s only when mistakes are found out that you correct them.”
Sessions has consistently pushed back on any attempts to reform the USA Patriot Act, which granted broad new investigatory powers to the intelligence community after the Sept. 11 attacks. Leahy voted for the Patriot Act but has since expressed misgivings and worked to rein in the powers granted in the law.
In 2015, Leahy led the charge in the Senate to pass the USA Freedom Act, the first law that scaled back various surveillance powers allowed under the Patriot Act. Among the reforms was a ban on the bulk collection of Americans’ phone data, as well as greater oversight on the Foreign Intelligence Surveillance Court, the main body that approves search warrants to investigate potential terrorists.
The bill won the support of many Republicans, but Sessions campaigned against the legislation in floor speeches and op-eds.
In a piece for National Review, Sessions wrote that the bill “would make it vastly more difficult for the (National Security Agency) to stop a terrorist than it is to stop a tax cheat.”
“Why make it much harder to investigate terrorists than common criminals?” Sessions concluded.
Supreme Court
Throughout President Barack Obama’s tenure, Sessions and Leahy frequently appeared together on the Sunday morning political talk shows to joust over the president’s Supreme Court nominees.
When Obama nominated Sonia Sotomayor to the bench in 2009, Sessions and other Republicans seized upon a line from a 2001 speech she made in which she said, “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Many Republicans, including former House Speaker Newt Gingrich, accused Sotomayor of harboring racist beliefs. Sessions in a 2009 appearance on “Face the Nation” questioned her impartiality.
“Every judge must be committed every day to not let their personal politics, their ethnic background, their biases, sympathies, influence the nature of their decision-making process,” Sessions said. “It’s the core of the American system.”
Leahy shot back, saying Sessions was “grasping at straws” and “nitpicking.”
“We’ve had a lot of judicial nominees of both Republicans and Democrats talk about the background, how that has influenced them,” Leahy said to Sessions. “Former President (George W.) Bush talked about empathy when he nominated a Republican to the Supreme Court.”
When Obama nominated Elena Kagan to the highest court in the land in 2010, Sessions and Leahy again squared off on “Face the Nation.”
“She has the least experience of any nominee, at least in the last 50 years,” Sessions asserted. “And so, I think that raises questions, and I’ve been using the phrase, you know, this is the confirmation not a coronation.”
“It’s funny we’re talking about not being a judge,” Leahy shot back, pointing out that Kagan was the first woman to become dean of Harvard Law School. “Of course, up until recent years, almost half the nominees, members of the Supreme Court, have not been judges. Bill Rehnquist who became chief justice — Chief Justice William Rehnquist was not a judge.”
Vermont implications
If confirmed as attorney general, Sessions’ policy work could lead to major changes in Vermont.
In 2015, Sessions supported legislation that would cut off federal funds to municipalities that have policies making them “sanctuary cities” when it comes to immigration enforcement, like Burlington. As attorney general, he could prosecute cities that do not share immigration status data with the federal government.
Both Trump and Sessions have also endorsed massive deportation efforts of millions of illegal immigrants. If that proposal becomes reality, Vermont farmers who rely on unauthorized immigrant laborers would lose valued workers.
Sessions has also vowed to push back on state marijuana legalization efforts. Vermont lawmakers will again consider allowing the retail sale of pot this legislative session.
TJ Donovan, Vermont’s new attorney general, said he will be watching Sessions’ confirmation hearings closely. Donovan predicts the Republican majority in the Senate will approve Sessions, and he promised to closely follow future federal policy changes. Once in office, Trump could nominate a new U.S. attorney for Vermont to replace Eric Miller, who was recently appointed by President Obama — a potential move Donovan said he’s also looking out for.
“For all the progress we’ve made in this state — and in this country — I hope we don’t go backwards,” Donovan said.
Donovan said he is most concerned about Sessions’ record on civil rights.
“What we have to do is be prepared to work with the federal government when we can and also be prepared to oppose the federal government on issues if their positions are contrary to ours,” Donovan said.
Scrambling ahead of hearings
With Sessions’ confirmation hearings set to begin Tuesday, Leahy and his aides are poring over decades of Sessions’ statements and proposals.
Leahy and his staffers contend that preparations have been complicated by the unwillingness of Sessions’ office to provide documents in a timely manner. His FBI file, for instance, wasn’t submitted until Thursday.
“It is especially and increasingly troubling that less than one week before hearings are set to begin, Sen. Sessions still has not been fully responsive to the Senate Judiciary Committee regarding his nomination,” Leahy said last week. “As a former ranking member of this committee, Sen. Sessions is well aware of the seriousness with which this committee takes the confirmation process.”
In an early December document dump, Sessions’ office failed to submit information from his term as attorney general and U.S. attorney in Alabama, according to a Leahy staffer. He left out any mention of his failed 1986 nomination, for example.
In 2010, Sessions accused an Obama judicial nominee of potentially committing a felony for not submitting all of the required disclosure documents to the Judiciary Committee.
Some supplemental information Leahy sought was provided at the end of last week, not as itemized statements, but as part of the congressional record.
A Leahy staffer said the office is now “buried under documents,” suggesting that workers wouldn’t be able to review all pertinent information before hearings begin Tuesday.
“We would argue today, even, that the hearing should be postponed,” the staffer said Thursday.
In a November letter to Republican Judiciary Chairman Chuck Grassley, Leahy asked for a four-day hearing for Sessions, pointing to John Ashcroft’s four-day hearing for attorney general in 2001.
But Grassley, who as chairman dictates hearing details, scheduled only two days for Sessions. Grassley also sent out a judiciary questionnaire to Sessions without consulting top Democrats on the committee, a move Leahy’s office said goes against Senate tradition.
Leahy said he had been consulting with the freshman class senators ahead of Sessions’ hearing and will be offering advice to other senators before a chamberwide vote on his confirmation.
“We are the conscience of the nation,” Leahy said. “Out of a nation of 300 million people there are only 100 who get to vote on this. Are we going to show responsibility or crass irresponsibility?”