People For the American Way

Will Sessions Follow the Long Tradition of Recusal?

News and Analysis

Since Jeff Sessions is a U.S. Senator, he is part of the body that will vote on his confirmation for Attorney General.  That raises the ethical question of whether Sessions should recuse himself from a vote in which he has such an obvious personal stake.

Fortunately, the ethical question is easy to answer, and it is backed up by precedent.  This is hardly the first time that a sitting senator has been nominated to a position requiring Senate confirmation.  President Obama nominated Hillary Clinton and John Kerry to be Secretary of State, and Max Baucus to be ambassador to China.  Sens. Clinton, Kerry, and Baucus all recused themselves, not casting either a yea or a nay vote.

This recognition that sitting senators should recuse themselves from voting on their own confirmations began long before Obama’s presidency.  In 1993, Sen. Lloyd Bentsen did not vote on his nomination by President Nixon to be Secretary of the Treasury.  When President Carter nominated Sen. Edmund Muskie to be Secretary of State, Muskie refrained from casting a yea or nay vote.  So did Sen. William Saxbe, President Nixon’s 1974 nominee to be Secretary of State.  As Sen. Richard Blumenthal noted in a letter to Sen. Sessions, all six sitting Senators, both Democratic and Republican, to be nominated and confirmed to cabinet level positions since 1960 have declined to cast a recorded vote on their own nominations.

Recusal is a time-honored tradition based on the basic principles of fairness that undergird our democratic system of government: Public officials recuse themselves from activities in which they have a personal interest.  The abuse of government authority for personal advantage violates the public trust.  Even the appearance of such impropriety erodes confidence in our democracy.

This is particularly important for the Attorney General of the United States.  As the nation’s chief law enforcement officer, the AG wields enormous power, exercising enormous influence over the fates of individuals, families, businesses, and entire industries.  It is essential that the public have confidence that the AG’s decisions in areas ranging from criminal prosecutions to antitrust enforcement are wholly untainted by his or her own personal interests.

For Sessions to vote for himself to become Attorney General, he will have demonstrated a frightening unwillingness to avoid situations that are, or appear to be, self-serving.  And he’d be doing so as a means to ascend to a position where that unwillingness is disqualifying.  The nation can ill afford an AG with such a stain even before he takes the oath of office.

Sen. Sessions has a choice with enormous repercussions on Americans’ faith in our government.  Both ethics and history plainly tell him what that choice should be.