Attorney General nominee Jeff Sessions is a greater threat to limited government than former Attorney General Eric Holder ever was, so why are Republicans and “liberty” groups not opposing him? Earlier this week Sessions was approved by the Senate Judiciary Committee in a striking party line vote (every Republican voted for him, every Democrat voted against him). The full Senate votes on his nomination next week; he will be confirmed unless principled conservatives stand up.
Sessions is at odds with many conservatives and libertarians on privacy, criminal justice reform, and other issues. Throughout his confirmation hearing he stood by his support for waterboarding, indefinite detention, and mass surveillance. He doubled down on his extreme opposition to immigration. He refused to condemn Alabama’s use of hitching posts (whereby prisoners are tied to a post and left to roast in the hot sun for hours).
On many issues he was massively evasive. In written responses to questions from senators he effectively dodged answering questions about bail reform, legal representation for indigent suspects, and community / law enforcement partnerships. He evaded several questions on whether he believes the 14th Amendment guarantees citizenship to all children born on America soil.
On the drug war, the issue my organization focuses on, Sessions is stuck in the 1980s. In both his hearing and written responses, he defended his opposition to even modest sentencing reform. Last year he was the single biggest obstacle to legislation reforming mandatory minimums, reform that was supported a wide array of organizations on both the right and left.
In a response to a written question about civil asset forfeiture (the process by which law enforcement can seize your property without charging you with a crime), Sessions said “The seizure of the proceeds of illegal activity, especially drugs, is an effective way to deter drug dealing, but must be done according to law.” This vague response is not reassuring given his past opposition to any forfeiture reform.
Senator Sessions was somewhat coy in responding to questions from senators on whether he will respect federalism when it comes to states that have legalized marijuana for medical use, saying things like, “I won’t commit to never enforcing federal law.” He also would not commit to maintaining the “Cole memo”, DOJ guidance that essentially allows states to set their own marijuana policies as long as they adhere to certain federal standards. He has a long record of advocating vigorous enforcement of marijuana laws at the expense of federalism, and even in the face of the recent political shift in Congress.
In recent years Congress has passed an annual bi-partisan spending amendment prohibiting DOJ from undermining state medical marijuana laws (commonly referred to as the Rohrabacher amendment). In August, the 9th Circuit Court of Appeals ruled the amendment protects people following their state’s marijuana law from federal prosecution. When asked about this decision, Sessions only said he is not familiar with how other courts have interpreted the amendment, which suggests he might interfere in states outside the 9th Circuit.
28 states have enacted a medical marijuana law (and Louisiana has enacted a partially effective medical marijuana law). 16 states have legalized CBD oils, a non-psychotropic component of marijuana that has shown effectiveness in managing epileptic seizures that afflict children. Eight states have voted to legalize, tax, and regulate marijuana like alcohol. Senators should not confirm an Attorney General nominee who will not provide straight-forward questions on how he will handle these states and whether he will abide by congressional spending restrictions.
The power of the Attorney General is vast, and largely unchecked. The Attorney General sets the Justice Department’s priorities, influences the type of cases U.S. Attorneys bring (and do not bring), controls the flow of grants and forfeiture revenue to local law enforcement, and puts pressure on policymakers. The Attorney General also provides legal guidance to the president.
Sessions campaigned hard for President Trump; he was an early endorser and a top surrogate. There is no reason to believe he will act independently of the president or be a check on executive power. Just before the committee vote on Sessions, several committee Republicans noted they disagree with Sessions on sentencing reform and other issues. None had the courage vote against him.
It is up to other conservatives to stand up for core principles and vote against him on the floor.
Bill Piper is senior director of national affairs at the Drug Policy Alliance. You can follow him on Twitter @billjpiper.