Independence is key.

Photographer: Andrew Harrer/Bloomberg

Judge Jeff Sessions by What He Does Next

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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President-elect Donald Trump’s selection of Alabama Senator Jeff Sessions to be the next U.S. attorney general has raised an understandable furor. To be sure, Sessions isn’t likely to be the last among Trump’s nominees for the 1,000 positions requiring Senate confirmation to arrive dragging unhappy baggage, and there’s no point in everyone getting outraged at all of them. A bit of history, however, might help the doubters decide how to think about Sessions -- and, perhaps more important, help Sessions understand what he owes to the doubters.

First, a bit of background on the nominee. In 1986, Sessions became the first of President Ronald Reagan’s nominees for a federal judgeship to be defeated. The reason, we are now told, was that he had made “racially insensitive” statements. He had indeed. His comments included the opinion that the American Civil Liberties Union and the NAACP were “un-American” (a remark he said under oath that he did not recall making) and a stupid joke about how he thought members of the Ku Klux Klan “were O.K. until I found out they smoked pot” (a remark for which he apologized).

That was lot to swallow in 1986, and it’s a lot to swallow today. Abraham Lincoln famously said that in politics the statute of limitations should be short. But how short should it be? In the case of Sessions, as it turns out, history affords us a useful analogue.

In 1959, the state of Georgia elected as its governor Samuel Ernest Vandiver, who during his campaign had pledged that under his administration “neither my three children, nor any of yours, will ever attend a racially mixed school or college in this state.” He promised that no black students -- “no, not one” -- would ever be admitted to a white public school. Among his advisers at the time was a young Atlanta lawyer named Griffin B. Bell.

In 1961, President John Kennedy appointed Bell to the federal appellate bench. When Jimmy Carter was elected president in 1976, he chose Bell to be his attorney general. These and other details of Bell’s past came out. He belonged to lily-white clubs. His civil-rights jurisprudence was said to “give clear signals and hope to those in this country who would want to do less than provide equal educational opportunity.” The NAACP fought his confirmation fiercely.

I was a first-year law student at the time, and as details of Bell’s past emerged, I was every bit as furious as everyone else I knew. When in early January he was confirmed overwhelmingly by the Democratic-led Senate,  a lot of us saw evidence that Dixie had indeed risen again and was now in charge.

But Bell seemed to understand that he had to repair his image in the public eye. He was wise enough to see that something more than words would be required to quiet the fears aroused by his background. Part of Bell’s immediate response was to select for senior posts in the Justice Department two black men and one white woman, a move many of his critics met with praise. His years as attorney general included any number of racially charged disputes: cases about school busing for integration, the decision whether to file charges in the police killing of a young Hispanic man, and a very public argument over which position the administration should take in the Supreme Court’s first encounter with affirmative action in college admissions. Through it all, he developed a reputation for moderation. If his positions were not always my positions, neither were they dangerously radical.

And Bell took another step, one that all too few recent attorneys general have attempted. Many observers were worried because he and Carter were so close. They had grown up together in Sumter County, Georgia; the press called them “cronies.” Bell responded by building “a giant barrier” to preserve the independence of the Justice Department from White House meddling.  He even internalized most judicial selection, keeping the choices away from the president’s political operatives.

All of these steps helped to quiet the fears of those who looked at Bell’s early career and worried. Probably the worries never really went away. And certainly he did not always live up to his own standards. But it was obvious to everyone that he was trying, and that simple fact made a difference. If Bell is not on the list of the truly great attorneys general, neither does he land on the list of failures. He did reasonably well, then slipped into history.

There are lessons aplenty in this history, both for Sessions and for his critics. For the critics, perhaps it is best to accept that he will be a conservative, but on the issue of the now-ancient racial comments, give him, warily, a chance to prove himself. For Sessions himself, the lessons require action more concrete. He should do what Bell did, both by reaching outside the expected circle to find aides who, if not precisely of the left, at least show his critics that he is willing to meet them halfway. (And, yes, racial diversity will help.) Much more important is that he try, as Bell tried, to prove that he isn’t simply there as the president’s crony. This will require that he rebuild the wall, to let the White House know not to call anyone in the building but him -- and then to inform whoever is on the line that he is leaving the issue, whatever it may be, to his assistants, and would not insult them by passing on the administration’s views.

Donald Trump isn’t Jimmy Carter, and people are tired of being told to hope for the best. But that doesn’t change my recommendation about what Sessions should do. Would taking these steps make him a perfect attorney general? Of course not. But that sets the bar too high. His job will be to do his job -- and to do it in ways that assure most of his fellow citizens that he is both independent of the White House and no longer the man who once made bad jokes about the Klan.

  1. The vote was 75-21. Those voting “nay” constituted an unusual coalition, running from the very liberal (for instance, George McGovern, Charles Percy and John Culver) to the very conservative (for instance, Strom Thurmond, Barry Goldwater and Jesse Helms).

  2. The wall, alas, was more permeable than it should have been. In 1978, Bell was criticized, and properly so, for firing David W. Marston, a Republican then serving as U.S. attorney in Philadelphia, who was investigating at least two Democratic members of the House of Representatives. At least one of those under investigation had apparently called President Carter to complain, and Carter had called Bell. Bell insisted that he had asked Marston to remain at his post until the administration found a replacement who was his equal “in ability character and integrity,” but Marston refused to do so.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Stephen L. Carter at scarter01@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net