At Sessions's confirmation hearings before the Senate Judiciary Committee, four
Department of Justice lawyers who had worked with Sessions testified that he made racially offensive remarks. One of those lawyers, J. Gerald Hebert, testified that Sessions had referred to the
National Association for the Advancement of Colored People (NAACP) and the
American Civil Liberties Union (ACLU) as "
un-American" and "
Communist-inspired" (Sessions said he was referring to their support of the
Sandinistas[22]) and that they did more harm than good by trying to force civil rights "down the throats of people".
[23] Hebert, a civil rights lawyer,
[24] said that he did not consider Sessions a racist, and that Sessions "has a tendency sometimes to just say something, and I believe these comments were along that vein".
[25] Hebert also said that Sessions had called a white civil rights attorney "maybe" a "disgrace to his race". Sessions said he did not recall making that remark and he did not believe it.
[22]
Thomas Figures, a black Assistant U.S. Attorney, testified that Sessions said he thought the
Ku Klux Klan was "OK until I found out they smoked
pot". Sessions later said that the comment was not serious, but did apologize for it, saying that he considered the Klan to be "a force for hatred and bigotry".
[26] Barry Kowalski, a prosecutor in the civil rights division, also heard the remark and testified that prosecutors working such a gruesome case sometimes "resort to operating room humor and that is what I considered it to be". Another DOJ lawyer, Albert Glenn, said, "It never occurred to me that there was any seriousness to it."
[27][22][25][26] Figures testified that on one occasion, when the
U.S. Department of Justice Civil Rights Division sent the office instructions to investigate a case that Sessions had tried to close, Figures and Sessions "had a very spirited discussion regarding how the Hodge case should then be handled; in the course of that argument, Mr. Sessions threw the file on a table, and remarked, 'I wish I could decline on all of them'", by which Figures said Sessions meant civil rights cases generally. Kowalski, however, testified that he believed "[Sessions] was eager to see that justice was done in the area of criminal civil rights prosecutions."
[27]
Figures also said that Sessions had called him "boy", which Sessions denied. Figures testified that two assistant prosecutors had also heard Sessions, including current federal judge
Ginny Granade. Granade denied this.
[19][28] He also testified that "Mr. Sessions admonished me to 'be careful what you say to white folks'." Sessions denied this.
[29] In 1992, Figures was charged with attempting to bribe a witness by offering $50,000 to a convicted drug dealer who was to testify against his client. Figures claimed the charge was retaliation for his role in blocking the Sessions nomination. Sessions denied this, saying that he recused himself from the case. Figures was ultimately acquitted.
[30][31][32]
Hebert, Kowalski and Daniel Bell, deputy chief of the criminal section in the Civil Rights Division, testified that they considered Sessions to have been more welcoming to the work of the Civil Rights Division than many other Southern
US Attorneys at the time.
[22][25]Sessions has always defended his civil rights record, saying that "when I was [a U.S. Attorney], I signed 10 pleadings attacking
segregation or the remnants of segregation, where we as part of the Department of Justice, we sought
desegregation remedies".
[33] Critics later argued that Sessions had exaggerated his involvement in civil rights cases.
Michigan Law professor
Samuel Bagenstos, reviewing Sessions's claims, argued that "[a]ll this shows is that Sessions didn't completely refuse to participate in or have his name on pleadings in cases that the civil rights division brought during his tenure ... These four cases are awfully weak evidence of Sessions's supposed commitment to civil rights."
[34]
Coretta Scott King, the widow of
Martin Luther King Jr. wrote to the Senate Judiciary Committee to oppose the nomination. In her letter, she wrote that "Mr. Sessions has used the awesome powers of his office in a shabby attempt to intimidate and frighten elderly black voters."
[35]
On June 5, 1986, the Committee voted 10–8 against recommending the nomination to the Senate floor, with Republican Senators
Charles Mathias of
Maryland and
Arlen Specter of
Pennsylvania voting with the Democrats. It then split 9–9 on a vote to send Sessions's nomination to the Senate floor with no recommendation, this time with Specter in support. A majority was required for the nomination to proceed.
[36] The pivotal votes against Sessions came from his home state's Democratic Senator
Howell Heflin of Alabama. Although Heflin had previously backed Sessions, he began to oppose Sessions after hearing testimony, concluding that there were "reasonable doubts" over Sessions's ability to be "fair and impartial". The nomination was withdrawn on July 31, 1986.
[21]
Sessions became only the second nominee to the
federal judiciary in 48 years whose nomination was killed by the Senate Judiciary Committee.
[26] He was quoted then as saying that the Senate on occasion had been insensitive to the rights and reputation of nominees.
[37] A law clerk from the U.S. District Court in Mobile who had worked with Sessions later acknowledged the confirmation controversy, but stated that he observed Sessions as "a lawyer of the highest ethical and intellectual standards".
[38]
When Senator Arlen Specter of Pennsylvania left the GOP to join the Democratic Party on April 28, 2009, Sessions was selected to be the Ranking Member on the Senate Judiciary Committee. At that time, Specter said that his vote against Sessions's nomination was a mistake, because he had "since found that Sen. Sessions is egalitarian".
[39]
