One thing the Department of Justice sorely needs is managerial oversight. Senator Jeff Sessions, the nominee for Attorney General, has the experience needed to provide that managerial control.
Running the Department of Justice is akin to steering a battleship. It has some 60 divisions, some 10,000 lawyers, and 94 offices throughout the country that contain U.S. Attorneys, their Assistants, and support staff. In 2013, it had a budget of $27 billion and some 114,000 employees. It needs direction so that all of its many working parts can work toward carrying out its mission, the core of which is to enforce and defend the laws of the United States in an even-handed and impartial way.
Direction and professionalism are sorely needed. Under Attorneys General Holder and Lynch, the Department played favorites, declining to prosecute the New Black Panthers, Lois Lerner, and others. For his part, Holder was held in contempt by the House of Representatives for withholding documents and otherwise displayed an attitude in his dealings with Congress that John Fund and Hans von Spakovsky characterized as “slippery and nonresponsive.” Even so, U.S. Representative Doug Collins (R-GA) told Lynch that he missed Holder, who he had previously criticized for being unprepared for the Committee’s questions. Collins explained to Lynch that he missed Holder “[b]ecause at least when he came here he gave us answers. We didn’t like it, but I’ve spent the last four hours listening to basically the Attorney General of the United States not willing to make a concrete statement of law.”
Sessions’ experience as a U.S. Attorney and an Assistant U.S. Attorney will help him run the Department. In those positions, he was on the receiving end of directives from Washington. Some of those directives may have made sense in Mobile and the Southern District of Alabama, but others likely consumed the attention of the office without any apparent benefit. Moreover, Assistant U.S. Attorneys are on the front lines of charging and prosecuting criminal violations of the laws of the United States.
Likewise, Sessions’ service on the Senate Judiciary Committee will help him hit the ground running. He has seen the Department’s attorneys respond to questions about their work and has reviewed documents relating to it. He will be familiar with most or all of its many parts.
Finally, Sessions’ time as Attorney General of Alabama demonstrates his skill in running a smaller office with a number of moving parts. Sessions walked into a disaster, when he took office in January 1995. His Democratic predecessor, Jimmy Evans, ran the office into a deficit, leaving bills like the telephone bill unpaid. Evans rented a satellite office and hung out there with investigators. Finally, Evans offered a number of state attorneys a deal: Give up your civil service protection, become a political appointee without job protection, and make more money.
And, by the way, Evans settled cases that gave political gifts to the Democrats. When the Alabama Legislature deadlocked over redistricting in 1993 after the House Democrats gutted the district of a conservative Democrat, Ryan DeGraffenried from Tuscaloosa, the Democrats filed suit in state court claiming that the State needed legislative redistricting plans that reflected the results of the 1990 Census. Evans directed the Secretary of State of Alabama, the named defendant, to settle the case, and, mirabile dictu, the plans drawn by the House Democrats were the remedy.
Another settlement involved the Alabama appellate courts. In 1994, before the November election in which Sessions defeated Evans, an African-American voter filed suit, claiming that the State’s appellate courts, the seats of which are filled through statewide partisan elections for particular positions, violated the Voting Rights Act. Two days after the State denied liability, Evans and his attorneys agreed to a settlement that would, according to the Eleventh Circuit Court of Appeals, “restructure the Supreme Court of Alabama and the two courts of appeals by increasing the size of those courts and creating a selection process that will ensure that the black voters of Alabama have at least ‘two representatives of their choice’ on each court.” The Eleventh Circuit Court of Appeals undid that settlement in 1996, after Sessions took office.
A third dubious settlement involved a racial discrimination class action against the Alabama Department of Transportation that was settled in 1994. ALDOT may have had its problems in dealing with its African-American employees and applicants, but the settlement turned out to be a major train wreck. It included a number of complex, overlapping provisions for relief that were endowed with unrealistic time limits. To the extent that the State was unable to comply in timely fashion, it faced claims that it was in contempt. Significantly, none of the individual contempt plaintiffs were able to prevail on their claims.
The worst part of the ALDOT consent judgment was the attorney fee provision. It rewarded the plaintiffs’ attorneys with fees for everything they did, whether or not they were successful. The Eleventh Circuit called that provision “kerosene on the fire.” As of July 2014, the case had cost the State some $300 million all told.
Sessions also recruited top-notch staff, like now-Eleventh Circuit Judge Bill Pryor and U.S. District Judge Kristi DuBose. Together, the staff figured out where the office stood. The satellite office was closed, and the bills were paid without any interruption in the telephone service. The shortfall was sufficiently great that a number of the attorneys who opted for political status and more money were let go because they had no civil service protection. Sessions fixed that problem statutorily for the future, working to pass a state law that made all state attorneys except the Chief Deputy civil servants. The Chief Deputy would be the only political employee in the office. Finally, his new staff attorneys like Pryor worked to undo what they could of Evans’ work.
In short, Senator Sessions has seen the Department of Justice from the inside and from the outside. He got his arms around an office that had spun out of control. His experience strongly indicates that he will be able to get control of the thoroughly politicized Department of Justice.