New York City Bar Association Urges ‘Searching Inquiry’ on Nomination of Senator Sessions for Attorney General

The New York City Bar Association today sent a letter to the United States Senate Judiciary Committee, urging its members to engage in a “searching inquiry” into the nomination of Jefferson B. Sessions III for Attorney General.

“In light of the characteristics of Sen. Sessions’ candidacy set forth in this letter, the City Bar believes it is appropriate to urge the Judiciary Committee to pursue such searching inquiry regarding Sen. Sessions’ record and views as is necessary to confirm his commitment to preserving and advancing the rule of law, enforcing the law (including legislation or judicial decisions with which he disagrees), and protecting the rights of individuals who lack the power to protect themselves,” reads the letter signed by City Bar President John S. Kiernan. “These inquiries should be predicated on the position – which the City Bar believes the Judiciary Committee shares – that whole-hearted commitment to these values is an essential component of a candidate’s qualification to serve as Attorney General of the United States.”

Based on an extensive review of materials provided in Sen. Sessions’ responses to the nominee questionnaires for his current candidacy and his 1986 candidacy for a federal district court judgeship, as well as other materials in connection with his record as a public servant, the City Bar respectfully urges inquiry into four areas:

I. The Apparent Incompleteness of Sen. Sessions’ Questionnaire Responses

“Questions have been raised as to the completeness of Senator Sessions’ questionnaire responses, submitted on December 9, 2016 and supplemented on December 23, with respect to potentially important information concerning his public remarks and writings,” the letter states, adding that the hearings should not conclude and a vote should not occur until all information that appears obtainable has been supplied. “Rigor in collecting a complete record appears particularly warranted because Sen. Sessions’ actions and statements in connection with his 1986 candidacy for a federal judgeship led the Judiciary Committee to the extremely rare step of a vote disapproving the presentation of his candidacy to the full Senate, and because certain statements and actions reflected in the incomplete currently available record present reasons for inquiry into the firmness of Sen. Sessions’ commitment to enforcing certain areas of the law.” The letter notes that there have been instances in which “Senator Sessions himself has asserted strong positions about the importance of completeness in questionnaire responses and the strength of the adverse inferences that should follow from incompleteness.”

II. Questions Presented by One of Sen. Sessions’ Questionnaire Responses

The letter suggests that the Judiciary Committee examine the role Senator Sessions played in four civil rights cases he listed in response to the question asking him to describe the ten most significant matters he “significantly handled.” The senator did not list those cases when asked the same question in his 1986 questionnaire.

III. Statements and Actions by Sen. Sessions Warranting Inquiry

While the City Bar believes that statements advocating change in the law – even highly politicized ones – should not be disqualifying, some statements by Sen. Sessions indicating his disagreement with existing law, as he has framed them, “justify rigorous inquiry into Sen. Sessions’ commitment to enforcing the law and energetically advancing all the protections that existing law affords even if he disagrees with the law,” according to the letter. These statements include his criticism of the Voting Rights Act as “an intrusive piece of legislation.”

IV. Follow-Up Questions from Sen. Sessions 1986 Judicial Nomination

While the public record does not specify all the reasons the Senate Judiciary Committee took the rare step of disapproving Sen. Sessions’ candidacy for a district court judgeship in 1986, reports suggest that factors in the decision included “the presence of accusations that Sen. Sessions had made racially offensive remarks on several occasions and had acted improperly in prosecuting unsuccessful claims of voter fraud against African-American civil rights workers,” the letter states. “While the City Bar believes that Sen. Sessions’ denials of having made the asserted statements and the passage of 30 years since those confirmation hearings should prevent that 1986 record from determining the outcome of the current confirmation process, the seriousness of the issues presented at the time – sufficient to provide an extremely rare rejection by this Committee – appears to warrant inquiry into whether Sen. Sessions categorically repudiates today, as improper and intolerable, the remarks and actions ascribed to him in the 1986 confirmation hearings.”

While the City Bar regularly reviews and publishes assessments of the qualification of candidates to become judges in New York City federal, state and local courts, the New York Court of Appeals and the United States Supreme Court, it has never developed and communicated a public evaluation of whether a nominee for a Cabinet position is qualified for that position. “We acknowledge that the Senate should afford the President substantial deference in the selection of Cabinet members when exercising its Constitutional function of advice and consent,” the letter states. “At the same time, the Attorney General occupies a special position as the nation’s top law enforcement officer, and the City Bar’s mission centrally embraces advancement of the rule of law and the fair administration of justice, especially by those who are entrusted with important public responsibilities.”

The letter is available here: http://bit.ly/2ilulHg

About the Association
The New York City Bar Association, since its founding in 1870, has been dedicated to maintaining the high ethical standards of the legal profession, promoting reform of the law and access to justice, and providing service to the profession and the public. The Association, through its 24,000 members, continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities. www.nycbar.org