The Problem with Sessions’ Hawaii Comment (And It’s Not What You Think)

Attorney General Jeff Sessions caused a stir this week in an interview on The Mark Levin Show, in which he dismissed the state of Hawaii as “an island in the Pacific,” the New York Times reports. Hold on, you say, Hawaii is an island in the Pacific, or, rather, a group islands. To understand the problem with Sessions’ comment, more context is necessary.

A month ago, Hawaii Judge Derrick K. Watson was one of two federal judges to block President Trump’s travel ban. Sessions, whose department is tasked with law enforcement and administration, and is therefore uniquely concerned with Trump’s executive order, was clearly frustrated that even the president’s more narrowly-written ban was found to have been “issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.”

The accuracy of that ruling is not the point of consideration here; Sessions’ response is.

“I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power.”

Predictably, the most common reaction from liberals was that Sessions was making a racist statement, even though he said nothing of the Hawaiian people in the interview.

Even the junior senator from Hawaii got into the mix, stopping short of using the r-word.

Sessions is a popular target for this accusation, despite actions to the contrary and the fact that the most serious allegations were made a witness who was not credible and was contradicted by those he claimed would verify his stories. Racism is the most popular ad hominem of the Left, however, so even someone other than Sessions would have received the same treatment.

If the problem with Sessions’ response is not racism, what is it? Vox, to their credit, got pretty close with their headline “Jeff Sessions’s attack on a Hawaii judge is an attack on judicial review itself.” Yet, what is under assault here is not so much “judicial review” — a precedent in place since Marbury v. Madison, the merits of which are a question for another time — but checks and balances in general.

Andrew Jackson’s succinct (and probably apocryphal) dismissal of a Supreme Court ruling this is not. Sessions neither dismissed “a judge” nor “an island in the Pacific;” he dismissed “a judge sitting on an island in the Pacific.” By this wording, he intended that the opinion of a district court judge should be irrelevant to questions of constitutionality on cases involving national security considerations.

Moreover, when part of his criticism is that the executive order “appears to be clearly [the president’s] statutory and constitutional power,” Sessions implies that all that matters here is his and the president’s opinion of what is lawful. That is a recipe for lawlessness. The existence of differing views from the chief executive among members of other parts of government is not a mere annoyance, but the basis for separating powers. 

To be fair, Sessions is correct in his criticism of the content of the ruling, that “judges don’t get to psychoanalyze the president to see if the order he issues is lawful. It’s either lawful or it’s not.” That said, the existence of checks and balances comes with the cost of poor checks and balances.

No one should be surprised by this statement, considering his boss’s long history of statements backing unilateral executive power. They are of the same mind. Sessions has never been among the most conservative Republicans, but he has certainly been among the more nationalistic.

Ironically, his comment betrays a mindset contra to an original principle of this nation.

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J. Cal Davenport

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