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Senate Democrats Can’t Stop Sessions, So How Much Will They Fight?

AG hopeful only needs a majority to approve his nomination

Sen. Jeff Sessions is President-elect Donald Trump’s choice to lead the Justice Department. (Tom Williams/CQ Roll Call File Photo)
Sen. Jeff Sessions is President-elect Donald Trump’s choice to lead the Justice Department. (Tom Williams/CQ Roll Call File Photo)

President-elect Donald Trump’s pick for attorney general leaves Senate Democrats with a complicated choice.

Sen. Jeff Sessions appears poised to lead the Justice Department, despite accusations of racism that derailed his nomination for a federal judgeship three decades ago. As far as records go back, no sitting senator has ever been denied confirmation to a Cabinet post.

After Trump announced Friday that Sessions would be his pick for attorney general, many of the Alabama Republican’s GOP colleagues voiced their support, including the more moderate Sen. Susan Collins of Maine. Joe Manchin III of West Virginia, who will join the Democrats’ Senate leadership team next year, will also back the nomination, a Manchin aide confirmed late Friday.

Each Republican member of the Judiciary Committee made positive statements about Sessions on Friday, signaling that Sessions’ nomination could be approved by the committee.

Democrats alone would not be able to block Sessions, since Senate Democrats, in 2013, eliminated the 60-vote filibuster threshold for most presidential nominations. But they may still put senatorial courtesies aside and wage a fight. 

[Sessions Is Trump’s Pick for Attorney General]

“Thirty years ago, a different Republican Senate rejected Sen. Sessions’ nomination to a federal judgeship. In doing so, that Senate affirmed that there can be no compromise with racism; no negotiation with hate,” Sen. Elizabeth Warren of Massachusetts said in a statement. “Today, a new Republican Senate must decide whether self-interest and political cowardice will prevent them from once again doing what is right.”

Though the nomination will test the limits of the chamber’s civility, even incoming Minority Leader Charles E. Schumer said he was keeping an open mind on how to vote on Sessions.

“Given his past statements and given this administration, there are a lot of questions I have, and you know the civil rights division [is] at the top of the list,” the New York Democrat said. “Some kind of mushy answer isn’t going to be good enough.”

“I ride the bike next to Sessions. I like him as a person but this goes way beyond personal likes and dislikes,” Schumer said, speaking of the modern smoke-filled room that is the senators-only gym.

[Sessions’ Nomination Sets Off Political Jockeying for Alabama Senate Seat]

Top Democrats on the Judiciary Committee have pledged to fully vet Sessions, as well. California Sen. Dianne Feinstein, who will serve as the panel’s ranking member next Congress, said in a statement, “While Sen. Sessions and I differ on a great many issues, I am committed to a full and fair process.”

As Republicans were pointing out the speed with which President Barack Obama’s Cabinet nominees were confirmed (with some such as Agriculture Secretary Tom Vilsack winning immediate approval by voice vote), Schumer signaled Friday that the early Trump picks could take more time.

“The president’s nominees were mainstream and had bipartisan support. Thus far, the Trump nominees don’t seem very mainstream,” Schumer said.

A Republican leadership aide said to watch for announcements about nomination hearings from the committees of jurisdiction, meaning the processing of Cabinet-level nominees could begin quickly as is typical at the start of an administration.

[Trump Cabinet Picks Incite Liberal Backlash]

A  bigger battle looms, however. The decision of Senate Majority Leader Mitch McConnell to ice the nomination of Merrick Garland to the Supreme Court means a seat will be open to be filled by a Trump nominee early in 2017. The 2013 rules change didn’t eliminate the filibuster threat for Supreme Court picks.

Democrats are girding for a battle over the 60 votes required to shut off debate, though Schumer is hoping for a Trump pick more in the mold of the two confirmed Obama nominees, Sonia Sotomayor and Elena Kagan, or even George W. Bush’s picks, Chief Justice John G. Roberts Jr., and Associate Justice Samuel A. Alito Jr.

Kagan, Sotomayor and Roberts each won Senate confirmation with at least 63 votes. The Senate confirmed Alito by a 58-42 vote in 2006.

“I hope they come up with a mainstream nominee and a nominee that — he or she may not agree with me on every issue, but at least somebody who’s going to work within precedents and not try to radically change America,” Schumer said. “Our last four nominees have been just that.”

“If they don’t, we’re going to fight them tooth-and-nail,” he added.

[More Potential Picks for Trump’s Cabinet]

Schumer said he did not view the GOP as having “clean hands” despite it being the Democrats who used the “nuclear option” to change the precedent to allow a simple majority to limit debate on any nomination except for the highest court.

“And I would remind my Republican colleagues of two things: One, we did not — deliberately — get rid of the 60 vote rule for the Supreme Court,” Schumer said. “I was the one who argued it. I argued with [outgoing Minority Leader] Harry Reid that the Supreme Court is so important to America that it ought to have bipartisan support. And I won the argument.”

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