How Sessions lost in ’86 confirmation battle

It was his home state senator who delivered the knockout blow.

After 23 grueling hours of hearings, Sen. Howell Heflin, an Alabama Democrat, was getting cold feet about the nomination of Jefferson Beauregard Sessions III to a judgeship on a district court.

“This is not an easy vote for me,” Heflin said softly to a packed hearing room on June 5, 1986, according to a Washington Post report. “My conscience is not clear, and I must vote no.” 

Heflin said he had “read and reread the transcript” of the hearings but couldn’t bring himself to recommend Sessions for the federal District Court for the Southern District of Alabama after witnesses testified that the then-U.S. attorney had made racially charged remarks.

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Neither could GOP Sens. Arlen Specter (Pa.) or Charles Mathias Jr. (Md.), who sided with Democrats on the Republican-led Senate Judiciary Committee to stop Sessions’s nomination by a 10-8 vote.

“A person should not be confirmed for a lifetime appointment if there are reasonable doubts about his ability to be fair and impartial,” Heflin said, according to the Post. 

More than 30 years later, Sessions is headed back to the same committee as President-elect Donald Trump’s nominee for U.S. attorney general.  

It’s a remarkable turnaround for Sessions, who picked up the pieces after the bitter confirmation defeat to win election to the Senate in 1996. That started a more than two-decade political career that has now put him in line to be the nation’s highest law enforcement officer.  

Republicans say his confirmation is practically assured, but groups on the left and right are gearing up for an explosive fight, dumping thousands of dollars into ad campaigns aimed at derailing his bid.

“Our committees and chairmen are fully capable of reviewing the incoming Cabinet nominations with the same rules and procedures as the same committees did with President Obama’s nominations,” Senate Majority Leader Mitch McConnell’s (R-Ky.) office said in a statement to The Hill. “As it relates to Senator Sessions specifically, we are confident he will be confirmed.” 

The Sessions nomination has put new focus on the ’86 testimony. Democrats are virtually certain to bring up some of the charges when they question Sessions at his confirmation hearings, starting Tuesday. 

Allies of Sessions characterize that testimony as a “smear campaign” and say the charges have been debunked over the years. 

“This continues to be a 30-year-old smear campaign regurgitated by witnesses who have since recanted or been discredited,” Sessions spokeswoman Sarah Isgur Flores said in a statement to The Hill.

“Senator Sessions’ four decade career in public service includes bipartisan victories on criminal justice issues … and bipartisan endorsements that include law enforcement, victims rights organizations, and African American leaders. As Attorney General, he will refocus the Department of Justice on upholding the rule of law and ensuring public safety.”

As is customary for Cabinet nominees, Sessions is not giving media interviews ahead of his confirmation hearings. 

But over the years, Sessions has staunchly and repeatedly rejected claims that he made racist remarks and has talked about how painful the experience was for him. 

“It was not a pleasant event, I got to tell you. It was really so heartbreaking to me,” he said in an interview with CNN in June 2009.

Sessions was the first of President Ronald Reagan’s judicial nominees to be defeated, and his confirmation process turned into a media spectacle.

Headlines relayed the drama from the hearing room: “Reagan nominee accused on Racism,” “Federal Court nominee attacks Rights Groups” and “Federal Court nominee denies racial insensitivity” stretched across the pages of The Washington Post and The New York Times.

Several members of the Judiciary Committee, including then-Sen. Joe Biden (D-Del.), pushed Reagan to withdraw Sessions’s nomination.

The year before the hearings, Sessions oversaw the indictment of three well-known black civil rights activists on charges of voter fraud. The activists were ultimately acquitted. 

During his confirmation hearings, Sessions said the Department of Justice approved the investigation and that one of the agency’s attorneys had drafted the indictment. He said subsequent investigations into that case failed to show any wrongdoing by him or his office.

“This case was a public corruption case, not a civil rights case. If it were presented to me 10 times, I would prosecute it 10 times,” he said in his testimony, according to transcripts. “Perhaps it was not good judicial politics, but I have never played politics with my office and I will never decline to prosecute a case because it may cause me disadvantage.”

The controversy over the charges spiraled into a broader examination by members of the Judiciary Committee, who spent six months questioning Sessions about the failed prosecution and his attitudes about black Americans.

“Mr. Sessions role in that case alone should bar him from serving on the federal bench. But there is more, much more,” then-Sen. Ted Kennedy (D-Mass.) said in his opening remarks on March 13, 1986, the first of what would be four confirmation hearings. 

Kennedy recounted a sworn statement from J. Gerald Hebert, a senior trail attorney in the Justice Department’s Civil Rights Division at the time, who claimed Sessions had called the NAACP and the American Civil Liberties Union un-American, communist-inspired organizations. Hebert alleged that Sessions had agreed with a judge’s remark that a white civil rights lawyer was “a disgrace to his race” for representing black plaintiffs. 

“As I recall, he said, ‘well, he probably is,’ ” Hebert said when the committee questioned him at length. In an interview with a committee investigator, Hebert recalled Sessions saying, “well, maybe he is.” 

Sessions at first testified that it’s possible he expressed agreement with the statement about the white civil rights attorney.

“And I made some comment like — actually, well, I guess I would have said that or he would not have, you know, said it,” Sessions said when Heflin questioned him about Hebert’s testimony on March 13.

“I guess I will not disagree with him, and I do not know why — I cannot imagine why I would make that comment.”

Sessions retracted that statement during his final confirmation hearing on May 6, saying he couldn’t remember everything from the conversation with Hebert, but knows he never called the civil rights attorney a disgrace to his race or acknowledged such a statement in any form. 

Sessions also denied ever saying that the “NAACP hates white people” or calling it a “commie group and pinko organization.” 

“I do not recall saying anything like that. I will admit that I am pretty — in my office, in talking to people that I am associated with, I am loose with my tongue on occasion and I may have said something similar to that or could be interpreted to that,” he said on March 13.  

Several people testified on Sessions’s behalf in 1986, including civil rights lawyers Albert Glenn and Barry Kowalski.

Glenn and Kowalski pushed back on testimony from a black assistant U.S. attorney, Thomas Figures, who recalled hearing Sessions say he used to think the Ku Klux Klan was “OK” until he found out they smoked marijuana. The remark, he said, was made while Sessions’s office was investigating the hanging death of a young black man.

Though he couldn’t remember whether he was present for the remark or Kowalski had relayed it to him, Glenn said he took the remark “wholly as a joke and humor.”  

“It never occurred to me that there was any seriousness to it,” he told committee Chairman Strom Thurmond (R-S.C.). 

Kowalski said investigators often “resort to operating room humor” when working on a brutal murder case. 

Figures, who was black, also claimed that Sessions, his supervisor at the time, called him “boy” and that another assistant U.S. attorney, Ginny Granade, had witnessed it.

Granade testified that she had never heard Sessions call Figures by anything other than his given name. Figures died in 2015.

Though he was one of the key votes against Sessions, Specter said little during the confirmation hearings and actually voted in favor of the nominee during a second vote that ended in a 9-9 tie.

Two decades later, the Specter said his vote against Sessions was one he deeply regretted. 

“My vote against candidate Sessions for the federal court was a mistake,” Specter said, according to Politico. When asked why, he said he had “since found that Sessions is egalitarian.”

While Specter, who died in 2012, may have had a change of heart, others have stood their ground. 

In an interview with The Hill last week, Hebert said he “testified truthfully in 1986.”

“If I had been accused of being a racist or making racially insensitive remarks, I would spend the next part of my career coming up with as many examples as I could to show I was a not a racist, that I was pro-civil rights,” he said.

Critics of Hebert note that he and another Justice Department attorney, Paul Hancock, were forced to recant testimony accusing Sessions of blocking a voting rights case in the southern district of Alabama. Department documents proved Sessions was not Alabama’s attorney general at the time.

In written testimony on March 16, 1986, Hebert told the committee that the retraction did not “in any way” affect the testimony he made on March 13. 

In the end, Sessions was the one to ask for his nomination to be withdrawn. 

On July 9, 1986, he sent letters to Reagan and Sen. Jeremiah Denton (R-Ala.), who had recommended him for the bench. 

“Despite the unpleasantness of the process, I am grateful for the honor of having had your support and with the privilege of being able to continue to serve as U.S. attorney,” Sessions wrote to Denton, according to an Associated Press report from the time. 

This time around, he’s hoping for a very different outcome.