Sessions And The Previously Unprotected

Senate confirmation hearings are a staged show, as should surprise no one. The nominee is prepared and those senators on his side of the aisle lob softballs at him designed to let him hit them out of the park. If the other side opposes the nominee, it tries to throw screwballs, designed to make him swing and miss. The hope is that he will swing wildly and say something so embarrassingly foolish that it will shame other senators into turning away.

Jeff Sessions’ confirmation hearing, thus far, went according to script with the Republicans. As for the Democrats, the New York Times was terribly disappointed.

During the hearing, Republicans were ready with lavish praise and defenses of his character against charges of racism, while Democrats rarely offered more than tepid and predictable criticisms. Meanwhile, outraged protesters repeatedly interrupted the hearing with denunciations of Mr. Sessions and Mr. Trump before being dragged out by Capitol police officers.

Of those in the room, the only ones worthy of empathy were the outraged protesters. Had the nominee been someone else, they might have castigated outraged protesters for disrupting proceedings, but this was Sessions, whom the Times despises, and the Dems failed miserably to call him mean names. Someone had to make a ruckus, and, indeed, some tried to be as outrageous as possible:

Ira Madison, an MTV Culture writer, did the near-impossible, going beyond what even the most vociferous Sessions-haters could stomach. The Times didn’t mention this, though others did.

But at Sessions’ Senate confirmation hearing Tuesday, Democrats were so subdued in their attacks on Sessions that Sen. Ted Cruz (R-Texas) praised them for showing “admirable restraint.”

Dems asked a few tough questions on Tuesday. They just didn’t land many blows. There’s another hearing Wednesday. But unless something incredibly dramatic happens, there’s no reason to believe Sessions won’t cruise through the confirmation process.

There was never any serious belief that Sessions wouldn’t be confirmed. Much as this was obvious, the Times still needed to pound its point:

A large dose of outrage is certainly called for, given the damage four years of a Sessions-led Justice Department would likely inflict on the hard-won yet fragile advances made for civil rights, racial and gender equality and humane justice. The prospect is particularly stark coming after President Obama’s Justice Department, which has aggressively defended and expanded civil rights for people and groups who were previously unprotected.

Their fear, which is presented as an anticipatory fait accompli, isn’t for the work of the Department of Justice in criminal law reform, perhaps because that never actually happened, but for the one thing the DoJ did do, “expand civil rights for people and groups who were previously unprotected.”  If one doesn’t think too hard about that line, it seems comforting. It shouldn’t.

If Jeff Sessions as AG decided to send out his troops to defend the First Amendment rights of people who proudly waved the confederate battle flag from attack, prosecuting those who would seek to silence their exercise of free speech, there would be no cheers at the New York Times. Are they not a “previously unprotected” group? They most assuredly have a right to express their views with a flag, no matter how hurtful some find it, and as AG, are they not worthy of the same protection as anyone else?

But that’s not at all what the Times is talking about. The claim isn’t about principle, but about the DoJ’s “aggressive” expansion of rights to groups it favors. Such as transgender people, though again the Times neglected to identify the beneficiaries of the AG’s largesse.

All of which makes the problem the Times obscures. It is not, and never was, the role of the Attorney General to manufacture rights that do not exist in law to “aggressively” expand protections to favored people or groups. And when they do, despite there being no law, they are exposed to those “rights” being voided. The next AG has a pen and a phone, just as the last one did.

At the same time, the unprincipled devotion to unilateral executive action when it benefits a favored group allows for another AG, say Jeff Sessions, to do the same, except with a group favored by the new administration. See how unprincipled arguments work? Same sword, two edges.

Did the Senate Democrats fail miserably to be tough and offensive toward a nominee who would rip the guts out of the Obama legacy of abuse of executive power? Maybe. But then, it’s not the job of senators to play the outraged offensive idiot. Ira Madison took that role. Just as it was never the job of the Attorney General to pick which groups she favored, create rights out of rhetoric and empathy, and ram them down other people’s throats.

Recently, Walter Olson wrote an op-ed for the Providence Journal praising the judiciary for shutting down the executive branch’s expansion of power.

Lately judges have struck down several big regulations from the Obama administration, putting at risk parts of its policy legacy. Some liberal commentators have reacted by blasting the judges as meddlesome activists and calling for more judicial deference to the president’s power to set national policy with the help of what are seen as expert federal agencies.

Bad idea, guys. If you’re worried about President-elect Donald Trump, this is exactly the wrong moment to reproach judges for standing up to executive-branch power grabs.

The risk of siding with outcome over principle is that much as you love it when the executive branch “expands” rights or imposes burdens in a way that makes you feel all warm and fuzzy, it can do the same in ways that will make you so twisted and outraged that your head will explode.

Jeff Sessions will be confirmed. The Dems in the Senate know it. They didn’t commit ritual suicide because it would accomplish nothing beyond dead bodies in the chamber. But should Sessions use his office to expand rights that don’t exist, there will be judges to stop him. Ironically, the right to Free Speech does exist, and includes the insensitive display of the Confederate battle flag. Somebody at the New York Times should have thought of principle before staking its credibility on a hill it couldn’t hold.

8 comments on “Sessions And The Previously Unprotected

  1. Billy Bob

    So the Asian baby is a prop? That’s very insensitive of somebody who should have known better.
    Jeff is in like Flynn, a piece of cake. Who woulda predicted the Dems to roll over like that? And we haven’t had the inauguration yet. This is confusing: Putting the cart before the horse. Was Shumer present, Big Mouth?

    1. Wilbur

      On first reading, I thought BB was calling our blog host (The Exalted One) “Big Mouth”. Heaven forfend.

      Then I realized he must be referring to Martha Raye. No, she wasn’t present. And yes, another reference no one under 45 (65?) will get.

  2. TinMan

    Sorry for the tummy rub but I had to give you props for making me think.

    My first read of your paragraph about the confederate battle flag made me conclude you were using a straw man to support your position and I’d hope to catch you in a dishonest argument (“Ah ha!”).

    Instead you were merely setting it up for the NYT to waste their breath to take it down with the next paragraph. (“Wha wha…”)

    Thanks for that…

      1. John Barleycorn

        Did you invite Al Franken out for beers last week and brief him on the tactical deployment of the “I am not a lawyer” line or what?

        I hope he picked up the tab…


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