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Remember When Trump's Attorney General Pick Was Too Racist to Be a Judge?

Callie Beusman and Gabby Bess

Documents from Jeff Sessions' failed federal judge confirmation hearing in 1986 illuminate a deluge of racially-charged accusations against him, including claims that he referred to his black colleague as "boy" and told him to "be careful what you say...

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This morning, the New York Times reported that President-elect Donald Trump has selected Republican Senator Jefferson B. Sessions for attorney general of the United States. Sessions, a Senator from Alabama, has come under intense scrutiny from civil rights groups in the past few hours, many of whom have noted that he was deemed too racist to serve as a federal judge the 80s.

In 1986, President Reagan nominated Sessions—who was then the district attorney for the Southern District of Alabama—to the federal bench. The resulting Senate judiciary hearing, which ultimately voted to reject the nomination, focused on several particularly egregious incidents throughout Sessions' career: According to testimony, Sessions made disturbingly racist comments, was openly hostile to civil rights groups and organizations, and falsely accused civil rights activists of voting fraud for trying to register black voters.

At the hearing, according to a publicly available transcript, Thomas Figures—a black former assistant US attorney who worked with Sessions—testified that Sessions referred to him as "boy" and that he had once told him to "be careful what you say to white folks" after Figures criticized a white secretary for making a comment that he thought to be "in extremely poor taste." Figures also said that Sessions had openly disparaged civil rights groups and organizations in front of him, stating on one occasion "that he believed the NAACP, the Southern Christian Leadership Conference, Operation Push, and the National Council of Churches were all un-American organizations teaching anti-American values."

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The Chairman of the hearing, Strom Thurmond, also brought up a complaint against Session regarding a statement he made about the Ku Klux Klan. "I thought those guys were OK," Session allegedly said of the Klan, "until I learned they smoked pot."

Session defended his words, dismissing them as a "silly" comment. He explained that he made the statement while he was investigating the killing of a young black man named Michael Donald. Donald was walking home from 7-11 when two Klansmen stopped him, abducted him, and then brutally murdered him by cutting his throat. The Klan members then hung his body on a tree in Mobile, Alabama.

In a report about the incident, Session said, it was noted that the Klan members had left a meeting before committing the murder, where they had smoked pot. He was reviewing the report with Figures, who is black, when he made the comment. "I thought it was really kind of, I don't know, bizarre," Sessions said in the hearing. "Maybe the joke—I was trying to think of how to analogize it. Maybe I was saying I do not like Pol Pot because he wears alligator shoes."

Do you not think it was insensitive to say that in front of a black man, after a black man had just been brutally beaten and hung?

In other words, by his own explanation, he was able to look through the evidence of a brutal, racist killing of a black man and find it appropriate to make a lighthearted joke about one of the most dangerous and active hate groups at the time. "All of us understood that the Klan is a force for hatred and bigotry and [the comment] just could not have meant anything else than that under those circumstances," he said.

It apparently wasn't clear to Sessions that a joke, "under those circumstances," by a man who is supposed to be protecting the civil rights of all people in Alabama, seriously undermines the seriousness with which violent racism must be treated. Indeed, at one point in the hearing, Joe Biden, a Senator at the time, told Sessions, "You are before this committee for the single most sacred job that could be entrusted to anyone in this Republic, and that is to be a US Federal Judge. And so not only whether you meant something, but the appearance and the propriety, your judgment, your maturity, and your temperament, all are at work here. That is why these comments are of consequence."

Biden also mentioned the sheer ignorance of making a joke like that in the presence of a black colleague. "Do you not think it was insensitive to say that in front of a black man, after a black man had just been brutally beaten and hung?" (Sessions said he thought it was "ludicrous" that his colleague would be offended by it.)

There was certainly no shortage of allegations against Sessions regarding inappropriate comments—each of which was made by a Justice Department employee, under oath. At one point in the hearing, Thurmond read them out one by one: One employee claimed that Sessions once said, "Black people are the children of white people." (Sessions said he has "not said anything like that.") Thurmond also noted that an official had alleged that Sessions said, "You know the NAACP hates white people; they are out to get them. That is why they bring these lawsuits, and they are a commie group and a pink organization as well." Sessions responded that he did "not recall saying anything like that," though he admitted that he can be "loose with my tongue on occasion, and I may have said something similar to that or could be interpreted to that."

Despite all that, however, when Sessions was asked directly if he had ever "made any slurring remarks about black people," he replied, "I do not tell racial jokes."

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There were also allegations that Sessions "took voting cases away, as well as civil rights cases, from Mr. Thomas Figures... because he was black." Sessions denied this. Further, there were allegations that Sessions ignored cases that involved black victims. One of these cases involved a black man who was shown a house in a white neighborhood in Alabama. The white residents, apparently, did not like this. They fired shots into the house and threatened the real estate agent who brought the black man by the house. Sessions admitted that he declined to pursue the case, "but expressed his concerns about it."

Sessions also reportedly tried to discourage Figures from pursuing the Michael Donald murder case. In his testimony, Figures said that, while Sessions didn't actively obstruct the investigation, he "did attempt to persuade me to discontinue pursuit of the case," remarking on several occasions that "the case was a waste of time, that it wasn't going anywhere, that I should spend more time on other things."

It was also alleged that Sessions had called a white civil rights attorney a "disgrace to his race." Sessions admitted to being involved in a conversation where this was said but asserted that he "did not initiate it." He added, "I made some comment like... 'maybe he is.' And I do not know why I would say that." He added, as if someone had overtaken his body during the exchange, "That is disturbing to me."

In response, Senator Biden said to Sessions, "I hope you understand why some of the assertions that have been made under oath by Justice Department employees are also disturbing to us, at least disturbing to this Senator."

A letter signed by 17 black state legislators.

During the hearing, Senator Ted Kennedy also brought up the witch hunt that Sessions led against black civil rights activists in Perry County, Alabama: Sessions infamously had led the prosecution of "three well-known and highly respected black civil rights activists on charges of voter fraud in assisting elderly black voters to vote by absentee ballot" in 1985, according to Kennedy. The activists were Albert Turner, his wife Evelyn, and Spencer Hogue.

Reports at the time, according to the hearing documents, suggest that the Perry County case was a political ploy to suppress black voter turnout in Alabama's 1986 election. Reports indicate that FBI probes or grand jury investigations launched by Sessions were taking place in four other predominantly black Alabama counties at the time. Critics said at the time that this was a coordinated attack by the Reagan Administration to "[try] to stem the rising tide of black voter registration in the South by targeting for investigation five Alabama counties where blacks control local government."

Speaking to the Birmingham Post Herald at the time of the case, according to the documents, District of Columbia Representative Walter Fauntroy said, "We have probably entered a period of government lawlessness in stifling black participation in key counties across the South."

The alleged tactics that Sessions used to gather and coerce witnesses to take the stand were appalling. Sessions and the FBI illegally staked out the post office where the activists were dropping off the absentee ballots that they had helped black elderly voters—some who were blind, had arthritis, and generally could not vote on their own—fill out. After combing through the ballots, Sessions said he identified 200 ballots that may have been tampered with by the activists. The FBI then interrogated the people to whom those ballots belonged and assembled a group of witnesses. Sessions and the FBI maintained that each witness was the victim of voter fraud, and that the activists had unlawfully changed their ballots. But in reality, many of the witnesses were simply old, confused, disabled, or illiterate.

Mr. Sessions is a throwback to a shameful era which I know both black and white Americans thought was in our past.

After the initial FBI interrogations took place, the witnesses were bussed to Selma, Alabama to testify before a grand jury, with Sessions leading the prosecution. The bus trip proved traumatizing, disorienting, and exhausting for many of them. "It was one of the most unusual and confusing scenes I have ever witnessed," Reverend O.C. Dobynes, a pastor from West Alabama who was a witness in the case, said in a statement presented at the hearing. "Approximately 25 people—many of them old and enfeebled and most of them frightened to the core—were loaded onto a bus under the watchful eye of more than 20 armed police officers."

He added, "The long hours, the difficult travel, and the intense pressure the witnesses were placed under took a toll on the elderly witnesses. [One elderly witness] had a stroke and another elderly woman suffered a heart attack."

For this reason, according to one account of the trial, the government witnesses did not end up supporting the prosecutor's case in court. "Some witnesses gave contradictory testimony," Lani Guinier writes in Lift Every Voice: Turning a Civil Rights Setback Into a New Vision of Social Justice. "Others revealed, on cross-examination, that they couldn't read or write, and therefore could not identify the ballots being waved in their faces by the government attorneys. Others could barely see. Some had no long-term memory of voting at all, but admitted that the problem was their memory, not the voting. Each in their own way actively undermined the government case that they had been coerced or intimidated into voting against their will. Most of the government witnesses went even further, giving endorsements for Albert and Spencer."

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All three defendants were eventually cleared. At the hearing, Senator Kennedy harshly criticized the proceedings, noting that "some of the elderly blacks have responded to their experiences during the prosecution by vowing never to vote again" and arguing that "Mr. Sessions' role in that case alone should bar him from serving on the Federal bench."

He added, "Mr. Sessions is a throwback to a shameful era which I know both black and white Americans thought was in our past. It is inconceivable to me that a person of this attitude is qualified to be a US attorney, let alone a US Federal judge. He is, I believe, a disgrace to the Justice Department and he should withdraw his nomination and resign his position."

In 1986, Sessions was called a disgrace to the Justice Department; in Trump's vision for America, he runs it. "As a matter of organizational policy, the American Civil Liberties Union does not take a position supporting or opposing presidential or judicial nominations. We do, however, educate the American people and the Congress about nominees' records and past positions," ACLU executive director Anthony D. Romero said in a statement. "As the nation's highest-ranking law enforcement official, the attorney general is charged with protecting the rights of all Americans. In his confirmation hearings, senators, the media, and the American public should closely examine his stances on these key issues to ensure we can have confidence in his ability to uphold the Constitution and our laws on behalf of all Americans."