In a little over a month’s time confirmation hearings will begin to confirm Jefferson Beauregard Sessions, the Republican senator from Alabama, as the nation’s 84th attorney general. Last week reports surfaced that members of President-elect Donald Trump’s team are advising that this effort should focus on the nominee’s “strong civil rights record.” This public relations strategy has become the new normal: take the most glaring weakness of your candidate and present it through the looking glass. And so Jeff Sessions, lifelong civil rights foe, becomes a civil rights advocate. This is precisely the challenge the Senate will confront in successive confirmation hearings for the new administration’s controversial cabinet picks.
Continuing the winning strategy of the campaign, the administration-in-waiting has already shown us that it will not be bound by facts. This is why, in the coming administration, the law will matter more than almost anything else if we are to hold on to fundamental democratic principles. Our nation’s civil rights laws will be especially important.
I have often referred to civil rights activism as a democracy maintenance job. Civil rights lawyers do the hard work of exposing the dangerous rot at the core of our democratic institutions and practices. This is revealed by the way in which those living at the bottom and at the margins of our society are protected or preyed upon by our nation’s laws. When we expose cracks in the foundation and successfully compel change—when we overcome discriminatory laws and press for the passage of more just laws—we strengthen American democracy. Through our decades-long battle to end legal apartheid in America, to ensure that every citizen has the right to vote and participate in the political process, and that the American workplace cannot discriminate against workers based on race or gender, we elevated this entire country in the eyes of the world and enriched the democratic ideals of equality and justice. Despite the inevitable setbacks, those legal gains have survived all manner of political, social, and economic change in our country.
When democratic norms and ethics are brushed aside, law remains. Law demands facts, not spin. That’s why, this year, courts have struck down a succession of voter ID laws that have been shown to discriminate against poor and minority voters. Because whatever you can say about the existence of widespread voter fraud on cable news or at a campaign rally, in a court you have to prove it. And in case after case, states have been predictably and embarrassingly unable to prove the existence of more than a handful of instances of in-person voter fraud. In fact, one study demonstrated that there have been only 31 cases of documented in-person voter fraud over the course of 10 years and the casting of over a billion ballots.
Law may be the most important protection against the very real threats to our democracy that could result from the worst excesses of the incoming administration. Indeed our democracy’s greatest strength is the rule of law.
And that’s why the attempt to confirm Senator Jeff Sessions as the nation’s chief law enforcement officer on the basis of his alleged “civil rights advocacy” must be resisted. To accept this bending of the truth suggests that the fundamental importance of fact to law may already be expendable to the incoming administration.
In fact, Sessions’s actual record as a law enforcement officer exemplifies the danger he represents to the rule of law. In 1984, as U.S. Attorney in the Southern District of Alabama, he prosecuted the Marion Three, African-American voting rights advocates in Perry County. In so doing, he encouraged the baseless, fact-free intimidation of black voters. Albert and Evelyn Turner, in fact, were well-known as trusted aides to Dr. Martin Luther King during the Civil Rights Movement. Ultimately it was the law that vindicated the Turners and Spencer Hogue and acquitted them of the scurrilous claim that they had engaged in—yes—voter fraud. But the consequence of that prosecution was the harassment of rural black voters, many of whom were newly exercising their right to participate fully in the political process.
The truth is that if Sessions is a civil rights advocate, he has kept it well-hidden from civil rights lawyers and activists. He agreed in the late 1980s with a colleague’s assessment that a white civil rights lawyer was “a disgrace to his race.” Claims that he filed desegregation cases can’t be substantiated. Yes, he voted in favor of the 2006 reauthorization of the Voting Rights Act, but so did every senator. And just a few years later he declared his support for the Supreme Court’s decision in Shelby County v. Alabama, which gutted the very provisions he voted in favor of less than a decade earlier. Incredibly, Sessions has said that no Alabaman has been denied the right to vote based on race. We are currently challenging Alabama’s voter ID law, which is estimated to have disenfranchised 250,000 voters—most of them African American.
Sessions voted against the Lily Ledbetter Equal Pay Act, which ensures that women cannot be denied the same pay as men in equivalent jobs. He fought against the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which expanded protections against hate crimes to include crimes based on sexual orientation and gender identity.
This record suggests that the Senate should engage in a rigorous and thorough review of Sessions’s record to determine whether he should be entrusted with the sacred duty of enforcing the nation’s civil rights laws. Whatever the outcome, the hearings cannot begin with the false premise that Sessions is, or has ever been, a civil rights advocate. Or we ourselves will be complicit in weakening the most important firewall that stands against the gathering challenge to our democracy—the rule of law.