Fighting the wrong battle on Sessions

Democrats in and out of the Senate are well aware that their effort to derail the nomination of Sen. Jeff Sessions (R-Ala.) may fail. In a dozen or more conversations we have had with think-tank liberals, Hill staffers, outside activists and strategists, they concede two points. First, the deference shown to fellow senators is remarkably strong. One wag told me that every one of them would like to be in the same position — up for a top Cabinet position. Second, on principle and politics they have to try to dislodge him. Center for American Progress President and Chief Executive Neera Tanden in a written statement summed up the left’s bill of particulars:

Sen. Sessions has a controversial history, dating back to 1986 when a bipartisan Senate panel rejected his appointment for federal judgeship as the hearings uncovered reports that he called the NAACP “Communist-inspired” and “un-American” and accused the organization’s white civil rights attorney a “traitor to his race.” Sessions has called the Voting Rights Act of 1965 — a landmark law aimed to prohibit racial discrimination in voting — a “piece of intrusive legislation” and has a long history of opposition to civil rights. Session is also one of the leading voices of the anti-immigrant movement, opposing both the 2006 and 2013 bipartisan immigration reform bills and calling for an end to birthright citizenship.

Sen. Jeff Sessions’ voting record includes: opposition to the renewal of the Violence Against Women Act in 2013, repeal of “Don’t Ask, Don’t Tell”, and the removal of the Confederate flag from state property.

For many Democrats, the comments that derailed his 1986 confirmation for a federal judgeship remain at the core of their opposition. But is this their best line of attack?

Confirmation hearings have two audiences — the Senate (which must confirm) and members of the base (who want to see that their team is fighting for core beliefs). Highlighting past statements on race may satisfy the latter, but the vast majority of senators will not hold comments from 30 years ago against Sessions. Given how readily the country discounted Donald Trump’s comments from the campaign, there is reason to believe words have limited effect in the confirmation setting. There are, however, a few issues that Democrats might raise that will not only appeal to their base but also rattle Republicans.

First, while it might sound esoteric, his position on civil asset forfeiture is a big deal with many conservatives and libertarians. In the right-leaning Washington Examiner, Johnny Kampis writes that abuse has “fueled calls for reform of civil asset forfeiture, a practice that allows law enforcement officers to take property when there is simply a suspected link to criminal activity.” Kampis notes:

An estimated $5 billion in cash and property was seized in 2014. Some reforms have been made: A handful of states, including Nebraska, now require a criminal conviction to seize property, while former Attorney General Eric Holder put some restrictions in place to try to curb state and local police’s use of the practice.

Now President-elect Trump has selected Sen. Jeff Sessions, R-Ala., to be his attorney general. Sessions defended civil asset forfeiture during a Senate Judiciary Committee hearing on the topic in 2015. Democrats and Republicans on the committee generally spoke against the practice, including Chairman Chuck Grassley, R-Iowa, who went toe-to-toe with the Fraternal Order of Police on the issue.

Civil libertarians object because the practice “turns the justice system on its head, assuming guilt and forcing people to fight arduous court battles to have their stuff returned.” Liberals should be concerned that the forfeiture disproportionately harms African Americans, who already are coping with bias in policing.

Second, claiming that Sessions hates Hispanics is of limited utility. (This was tried with Trump, and he probably wound up with a higher percentage of support from Hispanics than did Mitt Romney.) There are a number of issues on which right, left and libertarians should have legitimate and grave concerns about his views. A series of questions aimed at his extreme stance on deportation would be eye-opening:

How are you proposing to pay for a massive increase in deportations?

Does the threat of loss of federal funds to cities that choose not to prioritize imprisonment of nonviolent drug offenders raise 10th Amendment questions? Wasn’t coercion of the states one of your key objections to Obamacare?

What do you tell the National Fraternal Order of Police (FOP) (a major supporter of Trump) that objects to “a substantial loss of federal funding if Trump makes good on his campaign promise to punish cities who refuse to deploy their law enforcement agencies for the purpose of rounding up and detaining undocumented immigrants for the purpose of deportation”?

To pay for the wall along the southern border, Trump has supported a plan to “impound” remittance payments. How is this constitutional? What would be the economic effect in Mexico and other countries if that was somehow accomplished? Wouldn’t that increase the flow of illegal immigration?

Does he intend to try repealing birthright citizenship by statute? Would you then be criminalizing millions of children born in this country?

Do you intend to deport illegal immigrants who in good faith stepped forward to identify themselves under DACA? Do you oppose legislation that would bar this based on fairness and humanitarian concerns?

In sum, Sessions’s current positions and intentions to enact extreme anti-immigrant measures that trample on civil liberties are much better targets for those seeking to defeat him. Moreover, it might be educational for Americans to learn just how extreme the new administration’s positions may be.