The Racial Controversy That Cost Sen. Sessions a Judgeship in 1986

“You can’t dwell on those things,” Sen. Jeff Sessions, R-Ala., recently told the Examiner’s Byron York . “If I had been confirmed as a judge (in 1986), I’d be reading briefs today. How can you complain about that?”

Sessions, the just-named ranking Republican on the Senate Judiciary Committee, has in recent days voiced concerns about President Obama’s Supreme Court nominee, Judge Sonia Sotomayor.

As part of this, some in the media have been recalling his own ill-fated nomination to be named to a federal judgeship.

And not without reason. Much of the conservative criticism about Sotomayor deals with that 2001 speech in which she suggested as a Latina woman judge she would reach better conclusions than a white man, a comment the White House has said she would phrase differently today.

Also assured some debate: Sotomayor’s ruling against a group of white (and one Latino) firefighters who sued the city of New Haven, Conn. The firemen allege racial discrimination, saying the city’s decision to scrub the results of an exam because it would have resulted in no African-Americans being promoted. Though the White House insists all Sotomayor (and her two colleagues on the Appellate Court) were doing was upholding 2nd Circuit precedent, the Supreme Court could possibly overrule Sotomayor.

Conservatives have said the case indicates she engages in ethnic identity politics in her jurisprudence. A review of almost 100 race-related cases by Tom Goldstein at SCOTUSblog suggests that her record on the appellate court clears of her of such charges.

Either way, it will indubitably be a major part of the debate.

Thus, since Sessions will assume a prominent role in her confirmation hearings, he will be front and center in a debate over the role of race and ethnicity in the law, which makes the controversy surrounding his failed attempt to be appointed to a federal judgeship nearly 23 years ago all the more interesting.

Liberal activists are in particular emailing around this 2002 story by Sarah Wildman in the New Republic which depicts Sessions as a racist.

Having served as U.S. attorney for the Southern District of Alabama since 1981, Jefferson Beauregard Sessions III was nominated for a seat on the United States District Court in Alabama in the Fall of 1985. Months later, amidst accusations of racial insensitivity, his nomination was defeated.

At the time, Sessions had recently prosecuted three civil rights workers for voter fraud, alleging that 14 ballots had been tampered with. Known as the Marion Three, the civil rights workers were acquitted and cited by civil rights groups opposing Sessions’ nomination as evidence of his alleged racial animus.

The most headline-grabbing charges against Sessions, however, were made by Thomas Figures, an assistant United States Attorney for seven years and an African-American. Figures had been appointed to the US Attorney’s office in the Southern District of Alabama during the presidency of President Carter.

During Sessions’ confirmation hearings in 1986, Figures alleged that Sessions repeatedly displayed racial insensitivity around him.

‘I was regularly called 'boy,’” Figures said. When asked by Sen. Ted Kennedy, D-Mass., who called him “boy,” Figures said, ''Mr. Sessions did, one or two of the other assistants.'' One of those Assistant U.S. Attorney, Edward Vulevich, said Figures’ charge wasn’t true and called Sessions "a man of utmost integrity."

Reached in Mobile, Alabama, this week, Mr. Figures told ABC News, “I stand by my testimony and I don’t know if anyone has questioned the veracity or the truth of it. And I don’t really care.”

Once after he’d been in a dispute with a white secretary in the US Attorney’s office, Figures said in his testimony, Sessions “called me into his office and indicated he felt I had been unduly harsh with the secretary. Mr. Sessions admonished me to 'be careful what you say to white folks.'…Had Mr. Sessions merely urged me to be careful about what I said to 'folks,' that admonition would have been quite reasonable. But that was not the language that he used.''

''There was a period in our own lifetimes when blacks were regularly admonished to be particularly polite or deferential, and a remark of that sort may just have slipped out inadvertently,” Figures said at the time.

In another incident, recently reported by Brian Beutler and Eric Kleefeld Figures recalls the Justice Department's Civil Rights Division sending their office instructions to investigate a civil rights case that Sessions had tried to close:

"We 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,’” Figures said, suggesting that Sessions wanted to close all civil rights cases, saying ‘the statement, the manner in which it was delivered, the impression on his face, the manner in which his face blushed, I believe it represented a hostility to investigating and pursuing those types of matters."

Kennedy asked Figures: "Did you ever say anything to them? Did you ever say, knock it off, or quit it?"

Responded Figures: "Senator, I felt that if I had said anything or reacted in a manner in which I thought appropriate, I would be fired. I always felt that my position was very tentative around Mr. Sessions."

But in testimony, Sessions pushed back against the charges and denied any racial animus.

Figures also alleged that had suggested that he thought members of the Ku Klux Klan "were okay until I learned they smoked pot."

Sessions insisted that he considered the Klan ''a force for hatred and bigotry,” and had been joking. Justice Department attorney Barry Kowalski, who heard the remark, testified that Sessions had made the remark as a joke, but Figures said he “certainly took it as a serious statement.''

In addition, Figures said that Sessions ''stated that he believed the N.A.A.C.P., the Southern Christian Leadership Conference Operation PUSH, and the National Council of Churches were all un-American organizations teaching Anti-American values.”

Justice Department employee J. Gerald Hebert also testified that Sessions had referred to the NAACP and the ACLU "un-American" and "Communist-inspired,” groups that "forced civil rights down the throats of people."

Sessions allowed that he “may have said something about the N.A.A.C.P. being un-American or Communist, but I meant no harm by it.'' Sessions claimed he meant that the groups "lose their moral authority" and Americans consider them "un-American" when they “involve themselves in promoting un-American positions" in foreign policy.

Sessions denied “as strongly as I can express it that I am insensitive to the concerns of blacks.”

Former US Attorney for the Northern District of Georgia Larry D. Thompson, who is African-American, testified on Sessions’ behalf, saying Sessions is 'a good man and an honest man, untainted by prejudice.''

''I have experienced racism all my life. Yet I know Jeff Sessions - not as a symbol, not just as a colleague - but as a man and a friend,'' Thompson said. ''He will serve our nation well as a United States District Court judge.''

Nonetheless, Sen. Paul Simon, D-Ill.., said Sessions’ nomination was "in deep trouble." Judiciary Committee chairman Sen. Joe Biden, D-Del., called for President Reagan to pull the nomination.

''Mr. Sessions is a throwback to a shameful era which I know both black and white Americans thought was in our past,” Kennedy said at the time.“It is inconceivable to me that a person of this attitude is qualified to be a U.S. Attorney, let alone a U.S. federal judge. He is, I believe, a disgrace to the Justice Department and he should withdraw his nomination and resign his position.''

Sessions recently told York that Kennedy’s speech about him “was the most unkind thing that has ever been said about me. It was exceedingly painful to hear someone of that prominence make that statement, and it was hurtful because it wasn’t true.”

Sessions was defeated in the Senate Judiciary Committee, which refused to report out his nomination for a full vote in the US Senate. Sen. Howell Heflin, D-Ala., who had supported Sessions’ nomination, voted against him. Two Republicans – then-Republican Sen. Arlen Specter of Pennsylvania and Sen. Charles Mathias, R-Maryland – jointed the Democratic majority on the committee to reject his nomination. Specter recently said that he regretted his vote against Sessions, whom he had come to view as “egalitarian.”

So are there any lessons for Sessions or anyone else from this episode?

''I really didn't feel like that was a fair process and that I had the kind of opportunity to get my message out effectively,” Sessions recently told the Birmingham News . “And sometimes it's a gotcha thing. It has been for others, not just me, in which the explanation is sort of buried. We shouldn't do that.''

Asked what he thinks about Sessions’ serving as ranking Republican on a confirmation battle in which race and ethnicity will feature prominently, Figures told ABC News, “I don’t have any thoughts on it.”

Figures said he wasn’t familiar with Sotomayor’s record nor with any of Sessions’ comments about her.

“I don’t want to speculate as to what he may or may not do with respect to that issue and so I’ll just leave it at that,” Figures said, polite but eager to get off the phone.

- jpt

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