Barring something extraordinary, Sen. Jeff Sessions will have little trouble getting confirmed as Donald Trump’s attorney general. But some activists on the left still see a way of getting a win out of his confirmation hearing: They hope the process generates significant media scrutiny of his time at the Justice Department, and that he will take on a political toxicity that will hurt the moderate Republicans who back him.
On Tuesday, the Senate Judiciary Committee will begin two days of hearings to examine Sessions and his long record. Sessions, an avid supporter of much stricter enforcement of immigration laws—including more deportations—has drawn energetic and organized opposition from progressive activists. But none of the Senate’s Republicans have indicated they will oppose his confirmation, meaning his confirmation is basically a lock.
But that doesn’t mean Sessions has nothing to lose.
Nominees who survive their Senate grillings can still emerge damaged. Hans von Spakovsky, a Heritage Foundation legal scholar and former Justice Department official under George W. Bush, said some of Bush’s appointees held back from pursuing conservative policies because they were so jarred by their confirmation processes.
“I occasionally saw political appointees who—it did scare them off from taking what I consider to be the correct positions on issues because they were afraid of what I would almost call the mad-dog left,” he told The Daily Beast. “If you get somebody up there who’s not tough, who doesn’t understand just how nasty and mean Washington is these days, it might have an effect.”
Von Spakovsky didn’t name names, but his point was clear: Protests and push-back can give Republican appointees the jitters. He added that he highly doubts that will happen to Sessions.
“I don’t think that he’s going to get damaged,” he said.
But his perception among his would-be employees—the career staff at the Justice Department, who stay on regardless of who’s president, and who tend to support Democratic candidates over Republicans—could take a beating. And those tensions could make his start at the department rockier than he would like.
A former Justice Department official who recently left the agency told The Daily Beast that some career attorneys there have deep concerns about Sessions.
“I think a lot of attorneys are nervous about a return to a really demoralized Justice Department,” he said.
“I think what they will be listening for tomorrow from the nominee is, does he respect their mission?” the former official said. “Does he respect the non-ideological job that they do? Is he coming in with a partisan and political mission? Is he coming in more as the attorney to President-elect Trump, or is he coming in as the People’s Lawyer?”
Conservatives said they suspect progressive opposition to Sessions is intended to make life harder for him at Justice.
“They’re probably hoping that every picture of Jeff Sessions throughout the DOJ has little horns and mustaches drawn on it,” said Carrie Severino of the Judicial Crisis Network, whose group is airing TV ads supporting Sessions.
Severino and other conservatives argue Sessions will de-politicize the agency, rather than re-politicize it.
But a chilly welcome wouldn’t necessarily impact Sessions’s ability to make big changes at the department.
Mark Corallo was spokesman for John Ashcroft when he was attorney general—a position he took after a historically blistering confirmation process. Corallo said Ashcroft’s confirmation gave him perspective.
“They went after him in the most unkind and uncharitable ways that I’ve ever seen the Senate go after a nominee,” he said. “He just kind of sloughed that off and used it as, ‘I’m just going to do what I need to do. If I can live through that, then heck, this will be cake.’”
With time, Corallo added, Justice Department attorneys warmed to their Republican boss and his staff.
“I can’t tell you how many times the career employees at the Justice Department would come up to me and say, ‘I really like you, you’re a different kind of Republican,’ and think that’s not insulting,” he said.
Ashcroft faced many of the same charges that Sessions now faces: that he harbored racist sentiments, that he worked to slow down civil rights efforts, and that he was too ideological to equitably enforce federal laws he disagreed with.
In 1986, the Senate Judiciary Committee blocked Sessions from being confirmed as a federal judge—due in large part to those charges. This time around, though, Republicans control the panel, and none of them have indicated they will oppose Sessions.
Despite that, congressional hearings are always fraught. Alberto Gonzales, George W. Bush’s second attorney general, infamously argle-bargled his way through congressional hearings about the firings of U.S. attorneys.
“I have in my mind a recollection as to knowing as to some of these United States attorneys,” Gonzales said at one point. “There are two that I do not recall knowing in my mind what I understood to be the reasons for the removal.”
In his initial Senate confirmation hearing, Gonzales promised the department wouldn’t be politicized during his time there. Then the firing of U.S. attorneys in 2006 for political reasons—which “severely damaged the credibility of the department,” according to an internal watchdog report (PDF)—seemed to gut that promise.
“There’s no question that some of the pledges he made to try to keep politicization out of the DOJ were pushed on him during the hearings on the U.S. attorney crisis,” said Elliot Mincberg, who was a top Democratic staffer on the House Judiciary Committee during the scandal and is now a senior fellow at the progressive People for the American Way.
Both the House and Senate Judiciary Committees brought Gonzales in for testimony as the scandal unfolded. And he did terribly. His miserable showing undermined his employees’ confidence in him, which helped fuel a deluge of negative news stories.
“The Department started leaking and leaking and leaking,” said Matthew Miller, a Justice Department spokesman under Obama. “It started with career people and extended to political people pretty quickly.”
Gonzales ultimately resigned.
Sessions’s time as a trial lawyer and his extensive experience asking questions in congressional hearings means it’s very doubtful he’ll have a Gonzales moment.
“You can’t foreclose the possibility that he says something that switches votes,” Miller said. “But it does seem unlikely at this point.”
What’s much more likely—in fact, guaranteed—is that progressives will use Sessions’s confirmation process to go after Republicans running for re-election in 2018. At the top of their target list is Jeff Flake, an Arizona Republican with libertarian leanings who has already committed to backing Sessions’s confirmation. Unlike Sessions, Flake has backed comprehensive immigration reform. And his state has a sizable Hispanic population.
“If Jeff Flake ends up voting for Jeff Sessions in committee and on the floor, we are not going to be shy about reminding his voters that he voted for the most anti-Latino, anti-immigrant nominee to this office that we’ve seen in decades,” said Drew Courtney, communications director for People for the American Way. “Senators who vote for him are really going to own him.”
“We are in this fight to win it,” he added.
The fight will be long.