C-SPAN/NEWSMAKERS

Host: Susan Swain

Guest: Jeff Sessions, Ranking Member, Senate Judiciary Committee

Reporters: David Lightman, David Ingram

SUSAN SWAIN, HOST, NEWSMAKERS, C-SPAN: Newsmakers is very pleased to welcome to our program this week Senator Jeff Sessions of Alabama. He is the ranking member of the Senate Judiciary Committee. That’s Washington parlance for lead Republican – new lead Republican on the committee.

Senator, thanks for being here. As we hear, the President is going to be reviewing names on the list for Supreme Court candidacy this weekend. We have two journalists joining us for the program; David Lightman, National Reporter for McClatchy Newspapers, and David Ingram of the National Law Journal where he is a Congressional reporter.

Senator, this week you went to the White House and on the morning you went the Washington Post published an op-ed you’d written. I’m very curious about your very last line. You write, “Just as we will demand that the nominee be worthy of the office,” and I know we’re going to talk about that. It’s the second part; “We in the Senate must also be worthy of the occasion.” What were you thinking about when you wrote that line?

SENATOR JEFF SESSIONS, REPUBLICAN-ALABAMA, JUDICIARY COMMITTEE RANKING MEMBER: Well I think they need to be fairly treated and also I believe that the Supreme Court is moving in – forward and I think it should be done according to the classical rule of American law, in which words have meaning and that they are – judges are faithful to that.

So we have a philosophy out there that suggests judges should be free to redefine the meaning of words to have it say what they think would be good policy today. So that’s a national discussion that we need to have and I think to be worthy of the confirmation process we need to talk about that.

SWAIN: But what were you saying about the Senate?

SESSIONS: Well I think the Senate, if we – if we don’t rise to that occasion; if we deal with petty issues and partisan politics and deal with it that way, we will not have fulfilled our responsibility.

SWAIN: David Lightman.

DAVID LIGHTMAN, NATIONAL REPORTER, MCCLATCHY NEWSPAPERS: I’d like to follow that for a minute. Two questions; number one, what would you regard as a petty issue. And number two, and this – abortion. Could you support a candidate who supports abortion rights?

SESSIONS: Well I think a petty issue is a thing that – are taken out of context, that make may make a nominee look bad, but are really not fair to a nominee, maybe some minor issue blown out of context. And could I support a pro-abortion nominee? The answer is yes. I think it’s a great country. I don’t expect nominees to come to the bench who do not have views on issues. And I don’t expect them to not have been engaged in the great issues of the day. But when they put on that robe and two people come before them and there’s a pro-life and a pro-choice nominee – party, that judge should give them a fair shake. They shouldn’t allow their personal view on abortion to shape how they define the law.

LIGHTMAN: If I could just follow that; could you define or recollect a minor issue blown out of proportion? Are you thinking of your own experience, perhaps, in the 1980s?

SESSIONS: Well, some of the things I felt were distorted in record dramatically and unfairly, I thought was Alito, that they found some news article that he didn’t write, back in college when he was on a student newspaper and they tried to blame him for that. I thought that was very unfair and destructive to the high standards of the Senate.

DAVID INGRAM, CONGRESSIONAL REPORTER, NATIONAL LAW JOURNAL: Senator, one of the names that’s been talked about for the Court is Elena Kagan. You voted against her nomination to be Solicitor General and I’m wondering whether you would be open to voting for her for the Supreme Court if she were nominated.

SESSIONS: I think she should be able to come forward again and have a fair – a clean slate. She’ll have to deal with some of the same issues that caused quite a number of senators to vote against her, but I think she should be given a full opportunity to respond and we should not prejudge her, so we’ll see how that would go if she were to be the nominee.

INGRAM: What would she have to say differently or do differently to persuade you and other Republicans who voted against her to support here?

SESSIONS: Well there are a number of things that people raised, to me, who had been deeply involved in the question of the military coming on the campus of the universities, I offered legislation to overcome that and she challenged that constitutionally as Dean at Harvard and signed the brief and was rejected by the Supreme Court eight to nothing. And so I think she made an error in that. We had hundreds of American soldiers losing their lives in Iraq while she was denying the United States military the right to come on the campus. Now she may be able to explain that better than I understand it now, but that was a big deal with me.

LIGHTMAN: Has the White House run names by you, do you expect them to and have you suggested names to them?

SESSIONS: I have not suggested names. The President did not run names by us. And I guess you know I could voluntarily write and make comments about nominees, but I think that’s probably unfair and premature. I think the President’s responsible and they have a big staff. They’ve got the Department of Justice and the FBI, and so they’re going – they should – they are better able to really know in depth about the nominee right now than I am.

LIGHTMAN: And one other quick question on the Supreme Court; only once I believe has a filibuster been successful against a nominee, 1968, Abe Fortas. Would you rule out a filibuster against a nominee?

SESSIONS: I’ve not favored a filibuster. I opposed two nominees that – in the Clinton years aggressively. Trent Lott said it’s time they bring it up for a vote. I voted for cloture to give them a final vote because I did not favor the filibuster technique and am very uneasy about that. But you remember the Gang of 14 and the Democrats were filibustering Bush nominees. And they said, well, in extraordinary circumstances, but only in those circumstances should you justify a filibuster. Maybe that’s the new standard. That’s not in concrete, but that may be the standard that would be used in the future.

LIGHTMAN: So you won’t rule it out?

SESSIONS: I don’t – I’m not going to rule it out.

INGRAM: OK, actually I want to follow up on two Clinton nominees; Justices Ginsberg and Breyer. Looking back at the decisions that they have joined on the Court and that they’ve written, do you think that Republicans were aggressive enough in opposing their nominations?

SESSIONS: I don’t think they were aggressive enough probably in inquiring into their history and how they are likely, based on their judicial philosophy, to have ruled in the future. I think a lot of Republicans that voted for Ginsberg now believe that was probably a mistake.

The President voted against Roberts and Alito and joined in a filibuster against Alito; President Obama did. We could be moving to a circumstance in which there’s not as much deference, this automatic, powerful deference to the President’s nominee now that used to be given in the past.

SWAIN: Was there any reference to that in your meeting with the President at the White House this week?

SESSIONS: I did make a comment about it as we discussed it and he was very nice in responding. He said you know you may disagree with me on the vote and that’s all right; I understand that. So I think he has a – feels that senators have a right to cast their vote pretty freely on how they feel a nominee will do on the bench.

LIGHTMAN: Can I follow that? Why is this deference eroding? Is it personal against President Obama or is it just an accumulation of things over the last 20 years?

SESSIONS: That’s a good question, David. I’m not real sure, but it just seems to clearly be happening and you come to the Senate at a given time in history and the President nominates somebody and he voted against two of the best nominees ever, I think, in Alito and Roberts, because for some reason he didn’t feel good about them. They didn’t have ethical problems or professional problems. They didn’t have really in any way, I think, an extreme ideology, but he felt that’s not the kind of judge he would put on there, so that constitutionally there’s no doubt a Senator can vote, for whatever reason, for or against the nominee.

LIGHTMAN: But just to clarify, cause I think you’re suggesting by that comment that this is almost personal with President Obama. I’m not sure that’s what you’re meaning to say.

SESSIONS: No, I don’t.

LIGHTMAN: Yes.

SESSIONS: I don’t think he gets to set the standard and I don’t think his vote necessarily sets the standard. I think a President’s nominee does get some deference. You know he gets to go through that process and I think the nominee will get deference. I think they’ll have a high possibility of being confirmed, particularly with a very large Democratic majority.

INGRAM: There was an op-ed by Stephen Carter recently, a professor at Yale Law, suggesting that maybe nominees shouldn’t even appear at their confirmation hearings. What do you think of that idea or are the – are there any other possible changes in the process that you think would make the process better?

SESSIONS: I don’t – I don’t agree with that. I think a nominee should be given a fair chance to talk and explain their reasoning and their philosophy, but the American people have one opportunity for – to at least see the nomination and at least judge the nominee and then judge the President who appointed them about whether that was a good decision or not and that’s at confirmation. And they are given a lifetime appointment. The salary cannot be reduced. They are given judicial independence. They cannot be held to account. There’s no other court for a litigant to appeal to. So if you don’t have a judge on the U.S. Supreme Court who is committed to fairness and justice and trying to do the right thing then I think you’ve got a problem.

INGRAM: But are there any other ways to improve the process so maybe it’s not as – quite as divisive as it is now?

SESSIONS: I’m hopeful it’ll be less divisive. I think it should be less divisive. Some of the Roberts’ nomination went pretty well I thought. I thought some of the Alito did also, because they were both very, very skilled and knowledgeable and did a – I thought a superb job in testifying. But I think people – I can’t object for a senator asking a nominee about something, even if it’s maybe unfair, if you give the nominee a chance to respond to it. And so you should ask questions. If people are out there asking questions about this or that about a nominee, give them a chance to explain it. And that’s the way the process should work.

LIGHTMAN: Should there be cameras in the Supreme Court? Should there be cameras in any courtroom?

SESSIONS: I’m not supporting that. I was a federal prosecutor for 15 years, Attorney General. Most judges don’t favor that. The Supreme Court does not favor that. I believe, constitutionally, we could – we have the power to say it should be open, although it’s fairly close. But I think we should respect the court’s view and the courts, their branch of government, they don’t want it. They strongly do not favor it and so I’ve been supportive of that.

SWAIN: Well actually the person that has been most vocal in not supporting is leaving the court, and that’s Justice Suter who famously said, “Cameras over my dead body.”

SESSIONS: Yes. I’d forgotten that.

SWAIN: So might – the actual view could change with the new nominee. Will you ask about it?

SESSIONS: I’d bet you that will be asked about. A number of the senators strongly favor cameras in the courtroom. So we’re talking about legislation that may well move forward that’d provide some more potential for cameras in appellate courts; less in the trial courts where the witnesses you know they come in and tell the truth, maybe about something that’s embarrassing or personally difficult for them and to have it all over the television; they just don’t like that and most judges I think feel that’s not healthy. And I would agree.

INGRAM: There was a hearing a few days ago with the Senate Judiciary Subcommittee on water-boarding and other interrogation methods. Senator Leahy, the Chairman of the full committee, has invited Jay Bybee, a former Justice Department official, to testify in front of that committee. Do you think that he and other former Justice Department officials who wrote memos authorizing these methods should appear in public and talk about their reasoning?

SESSIONS: I’d let them decide whether they want to do that. They’ve written their memo. It speaks for itself. The people can agree with it or disagree with it. That – those memos were very early on in the process, very early. They – when – not long after 9/11 there were a lot of pressure to, out of concern that there might be other cells that would be attacking us in other ways and I believe those lawyers tried to do the right thing; tried to do what President Bush said. This is what President Bush said and I think the American people cheered him for it. I’m going to use every power I have to protect this country.

The question is what power did he have? Those lawyers said you can do these things and you can’t do these things and people have disagreed with it and it’s caused quite a bit of controversy. I think it has unfairly embarrassed the United States. There were three instances of water-boarding, none by the United States military. I bet if you ask the American people they would say, from all they’ve heard and the complaints and they politics, they would believe many more instances occurred and that the military did it. And so I think we’ve created a perception of abuse that’s greater than it is. But I will admit those were some very close calls and people could disagree with …

INGRAM: Well the Senate Armed Services Committee report said that there were far more than three instances. Do you think that that report was incorrect or?

SESSIONS: Of water-boarding?

INGRAM: Yes.

SESSIONS: I’m not familiar with any proof that shows that, but I could be in error.

INGRAM: Maybe …

SESSIONS: That’s my recollection.

SWAIN: Senator, as the debate over this seems to get hotter and hotter as the days go by, are – what are your thoughts on having a commission that would look into this question?

SESSIONS: Everybody knows what happened. There’s no mystery here. The – certain techniques were used. They’ve been criticized. The administration and President Bush withdrew authorization from many of those procedures long ago. The Obama administration is not going to approve those because he’s criticized them and his lawyers have to, so I don’t know that we need some big commission on this. I really don’t think so. I think we need to go forward, deal with the challenges we face today, and we do need to remember that this is a dangerous world and there’s some people out there that would like to destroy this country.

SWAIN: Ten minutes left, gentlemen.

LIGHTMAN: Let me just push this one more step and that is you’ve been around politics a long, long time and you know you saw what happened last week in Washington with Speaker Pelosi, with Vice President Cheney seeking the release of two memos and the CIA said no. In other words, this has begun to dominate the dialog, both politically and substantively, in Washington. As a result, is a truth commission needed simply to clear the air, to get to the bottom of this?

SESSIONS: No, I don’t think so.

LIGHTMAN: OK.

SESSIONS: I mean the only question is Speaker Pelosi said she wasn’t fully informed and people said she was. But apparently they were informed that these techniques were on the table and could be used. And Congress didn’t object then and now they’re talking about filing charges against the patriotic Americans who approved them.

LIGHTMAN: Let me move on then. You’re taking over for Senator Specter as Ranking Member. How will we – what will we see different at Judiciary? What’s going to be on your agenda that may not have been on his and so on?

SESSIONS: Well I don’t know. I don’t know what difference there will be. I’ve got a great staff that’s coming together and I’m excited about that. We’ll serve all the members of the committee and there’s – be more coherence in the Republican view because Senator Specter was really an independent person. He really was and is. And so he marched to his own drummer, and I respected that and we all did. But we’ll be working I think to promote the classical Republican view of the rule of law; fairness to all parties, rich and poor alike and that kind of thing.

LIGHTMAN: I mean I realize your clout is limited since I think it’s, what; 11 to 8 I believe?

SESSIONS: Twelve to seven.

LIGHTMAN: Oh, it’s 12 to 7 now. Are there …

SESSIONS: One of the biggest majorities probably in decades.

LIGHTMAN: Yes, since the early 90s. Are there hearings you would like to hold, for example? Are there issues you’d like to – specifically, issues you’d like to pursue?

SESSIONS: There are some things that concern me. One might be the legal authority for the Secretary of the Treasury to meet in private with banks and insurance companies or automobile companies and distribute tens of billions, hundreds of billions of dollars, in a way that to me is just unaccountable and without any regular authority. And that implicates the constitutional separation of powers, because it appears that the Executive Branch is appropriating money with real Congressional oversight. So there are some things I’m thinking about, but this has happened pretty quickly.

INGRAM: You mentioned your staff; you new staff announced a few days ago. Senator Specter was known for pulling people from all over, even some Democratic staff members. Can you talk a little bit about your staff and how they’re going to – how they’re going to be different? I saw actually one of them had a, I guess a personal web site where he was doing a lot of blogging and on conservative issues. And talk a little bit about it.

SESSIONS: Yes. My Chief Legislative Director will be Brian Benczkowski, who was Attorney General Mukasey’s Chief of Staff; the Chief of Staff for the Deputy Attorney General. He had been Chief of Staff for the Bureau of Alcohol, Tobacco and Fire Arms and Sensenbrenner’s Chief Counsel in the House. And he just brings a lot of maturity and great experience.

Matt Miner, who’s my Chief Counsel and a former Assistant United States Attorney for four years; he came from Specter’s staff. I had hired him previously from Specter’s staff. He’s from – he spent some time in Alabama too. William Smith was my former Chief Counsel; great lawyer and good friend and I’m glad he’s agreed to come back. And Joe Matal, who’s a great constitutional lawyer and John Kyl’s a Chief Counsel on the committee, so that’ll be four experienced, capable lawyers.

INGRAM: Is it fair to say that it’s a – it’s a lot more conservative staff than Senator Specter had and what effect will we see on legislation and then in the committee?

SESSIONS: Well there’ll be a principal staff that probably more uniformly, in accord with the basic Republican view of the Constitution and law and I think that’s healthy. I mean the ranking member should – normally you would expect them to have a staff that supports the majority of the committee. Sometimes Senator Specter – one member was taking our staff and promoting other agendas. So I think we’ll be more in harmony with the basic group of Republican senators.

SWAIN: About five minutes left. Let me bring you back to the federal court, Senator. For a number of years, in the annual appropriations hearings, we’ve been hearing the justices worry about the backlog of vacancies and the workload that are on the federal courts at the appellate level. I’m wondering what, beyond this very high profile, what your own views are of the need to fill vacancies quickly and to get the lower courts staffed appropriately so that they can do their business without a real backlog?

SESSIONS: I think we should fill the appointments promptly and fairly and on time, as we can. If there’s a serious objection to a nominee, it may take longer times to be confirmed. Most of our judges work pretty hard. Some of the – a few courts are not that heavily overworked. I was speaking recently …

SWAIN: What are you thinking of when you say that?

SESSIONS: Well, I won’t mention that, but I’ll just say I was at the 11th Circuit Conference this – couple of weeks ago speaking to them and they have the highest caseload in the country. They have a short decision period of time and they don’t ask for more judges. And we’ve got courts that are really demanding more judges with substantially less caseload. And they believe, and I share this view, that if the court gets bigger and bigger and bigger it becomes less collegial, less coherent, less able to speak with the one voice in a logical way and you can end up with confusion in the law and they think they can continue to meet those challenges.

SWAIN: Do we pay judges appropriately?

SESSIONS: Well, they would like to be paid more. I think it was John Roberts; I asked him, did he know his salary and was he willing to work for it. And he said he did, but he did say, I’ll give him credit, that he wasn’t sure that it was – he didn’t promise not to ask for more and he has, of course, since he’s been on the bench.

SWAIN: And what’s your view of that?

SESSIONS: I don’t think – I think judges are paid sufficiently. I would like them to be paid more, but we are co-equal branches of government. They get paid the same thing as the members of the Congress and the U.S. Senate, and more judges than senators, but not a lot more, and not a lot more than members of Congress. And so I’m inclined to say that if you take the judgeship, a big salary; you just have to accept that’s not part of it. Oh, they can make more money at a big law firm; I don’t doubt it. But there’s some real value in a – the – a life on the bench if you like that and are good at it.

SWAIN: Final question from both of you?

INGRAM: There’ll be a bill that could come before the Judiciary Committee, soon even, that would give journalists a shield against having to give up their notes or testify about their sources. Do you support that bill?

SESSIONS: That is a very complex piece of legislation. It’s very important that we do it right. I do not believe a reporter can – should expect the law to provide a – allow them to be a conduit for illegal distribution of confidential information. So it’s hard to write a law that protects a reporter and protects their sources, but also is not in direct conflict with secrecy laws that say certain things should not be revealed. And so it’s a tough bill. I’m not sold on the way – the last draft that I’ve seen.

INGRAM: Is there an alternate draft or language that you think would work.

SESSIONS: Yes. People like Senator Kyl have spent a lot of time working on it. We’ve got amendments and suggestions for improvement. Some are being accepted, I think. Some have not be – will – have not been, so we’ll have to see how that comes out.

But I’m – I don’t think that we need to create a circumstance in which a person wants to leak serious information; they give it to a reporter and they print it all over the newspapers and then the reporter says sorry, you can’t – I don’t have to give my source. This could be a very – could endanger the country.

LIGHTMAN: President Obama doing a good job and what are your constituents telling you about him?

SESSIONS: People like President Obama and in – his personal style is very winning. He speaks with moderation and he uses language that people like. He’s good at that and that’s a real strength. He will at some point stand and fall more on the substance of his policies than his words and there’s less support for his policies than the words, but he’s doing an excellent job personally right now.

SWAIN: That’s it for our time, Senator, but thank you for coming here as you’re just getting started in this new and important role and please come back as you get further into it.

SESSIONS: Thank you. Good to be with you.

SWAIN: Appreciate it.

Newsmakers is back with David Ingram, the National Law Journal, and David Lightman of McClatchy Newspapers, after 25 minutes with Senator Jeff Sessions, who finds himself the brand new ranking Republican on the Judiciary Committee and facing a Supreme Court nomination.

He spoke about the fact that he has one of the smallest minorities in a couple decades, really, David Lightman, but talked about more unity among them. Will you comment about what that means?

LIGHTMAN: Yes. In other words, their message is going to be not the same, but it’s going to be very clear. All the things he said in the last few minutes about adhering to the rule of law, strict interpretation of the Constitution, et cetera, et cetera; you’re going to hear that message, I think, from all seven members of the Judiciary Committee when they Supreme Court nomination hearings begin. There’ll be – Senator Specter tended to be more nuanced, be more moderate. He’s now on the Democratic side. So I think there’ll be a unity of message. Politically, what this could mean is if this nominee faces any kind of trouble, he or she is going to face a very unified Republican block and that could cause problems.

SWAIN: One thing we didn’t talk about is really the role of the interest groups in this process. The Senator spoke at the beginning of our conversation about his message to the Senate. What would you think that he expects the interest groups; what role they will play?

INGRAM: There’ll be a lot of interest on the part of especially conservative interest groups to really slow down the process a little bit and to try to take as much time as they can to look at the nominee. Some of the Democratic senators are hoping for a vote in the Senate before they recess for August. I think we’ll see some pressure from the interest groups to have – to leave that August recess free and to look at the nominee and to make a vote in September, which would still leave some time for the Justice to settle in for the beginning of the term in October.

SWAIN: Senator Sessions spoke about the importance of making this selection, the tenure that someone will have on the court, the fact that we don’t really see them again after this one public appearance, but there’s also party politics, David Lightman, involved in all of this.

LIGHTMAN: Where should we start? Yes, there’s enormous – I mean the expectation that is if President Obama nominates someone with a good record, who appears fair, you have – he or she is going to get nominated. You have 59 Democratic senators.

SWAIN: Confirmed, you mean.

LIGHTMAN: I’m sorry; confirmed. And I think there’s a sense among Republicans; let’s make our position clear so that next time and the next time and the next time, President Obama might think twice if he decides gee, I’ve got such a strong majority; I’ll nominate someone who’s decidedly liberal or who might have a touch confirmation fight. In other words, look ahead; set it up for that, number one.

Number two, somebody pointed out last week that this is a great rallying point for the Republican Party. It’s something the party could unify. The stimulus bill was one thing, but that’s kind of fading as a political issue. This, though, they can talk about this one for months and months and months.

SWAIN: The Senator was a bit loathe to talk about individual names that have been circulating and we can understand, in his position, why he wouldn’t want to do that right now, but you can. Can you tell us a little bit more? We keep hearing a list anywhere between eight and 10 names on it. What is – are there any common characteristics of the people that are on the list that are most prominent?

INGRAM: They are almost all women. That is – I think there have been only two or so men who have been on these lists and to the extent that they are truly lists then that’s not very many, as a percentage. But there’s a very – a diversity of background on here too, which is different – would bring something different to the court. As you know, the Supreme Court for the first time in its history is composed of Justices, all of whom served on federal appellate courts.

That’s never happened before. There used to be more senators, governors, former attorneys general and so that’s why you see names like Michigan Governor Jennifer Granholm, Elena Kagan, who is the Solicitor General who had been Dean of Harvard Law School. And that’s really the message that the White House has hinted at, in some statements, that they want to look for a little bit of a diversity of experience if they can – if they can get someone with the right qualifications otherwise.

SWAIN: You’ve watched Presidents at this process for a few years now, David Lightman. What is common among White Houses when they get the chance to make this kind of appointment in unveiling the nominee?

LIGHTMAN: Well, they want to be statesmanlike. They understand the importance of this pick and although they want the pick to reflect their views, they also don’t want the pick to be seen as too partisan because they know that this pick will live on; that long after they’re out of office or dead and gone. People may judge them on this pick.

Ronald Reagan, in 1981, had his first pick about six months into his term and it was Sandra Day O’Connor and the first woman, conservative, but not ultra conservative. And there was some, not doubt, but there was some concern among a lot of his constituents; my goodness you know. But Barry Goldwater at the time was an old friend of Justice O’Connor; said she’s great, you’ll love her. And Reagan – it turned out to be a fabulous pick because she turned out to be conservative; she turned out to be a credit to Reagan. He looked like he chose carefully. He had problems later, as you know, but at that point he wanted a statesmanlike pick, but one who reflected his views.

SWAIN: We’re out of time, but it’s worth noting the discussion about the fact that the current court has two sitting members that the current President voted against in their nomination. How does that change the dynamic for his selection?

INGRAM: Well it makes it a lot more difficult for him to argue in favor of an up or down vote. He voted against ending debate on then Judge Alito’s nomination and he – it’ll be harder for him to demand different treatment for his own nominee.

SWAIN: Well thanks to both of you for being here and for your questions for Senator Sessions; appreciate it.

LIGHTMAN: Thank you.

INGRAM: Thank you.

END