It was a year ending in 7 when the President nominated a serving Senator from Alabama to serve on the US Supreme Court. To most who knew him, Hugo Black was a relatively liberal Deep South Democrat who had supported Franklin Roosevelt's 'court-packing plan' the previous year. Few, if any, outside Alabama knew that he had been in the Ku Klux Klan prior to taking his seat in the US Senate, and Black took to the airwaves to smooth over the controversy following the revelation. In any case, it was too late: thanks to the principle of senatorial courtesy, the Senate Judiciary Committee had approved Black's appointment, after which his Senate colleagues, for the most part, voted to send one of their own to the nation's highest court.
And now, here we are, in a year ending in 7, and the President-Elect has nominated a serving Senator from Alabama to become his Attorney General. No-one has suggested that Jeff Sessions was ever in the KKK, but his track record on the race issue has already proved controversial, not least because he was previously denied a federal judgeship in 1986 over similar concerns. If ever there had been KKK membership, or another explosive secret from his past, the age of mass media would no doubt have uncovered it by now. But what is known about Sessions's politics has proved sufficient for his colleague, Cory Booker of New Jersey, to testify before the Senate Judiciary Committee in opposition to his confirmation as Attorney General.
It is an unprecedented move for one Senator to testify against the appointment of another to such a position, and one which raises questions about the very notion of 'senatorial courtesy' in the twenty-first century. In 1937, when Hugo Black was confirmed for a seat on the Supreme Court, senatorial courtesy was a relatively straightforward affair. For one thing, they didn't have African American Senators who might object to an Attorney General calling African American men 'boy,' nor did they have to consider such an important appointment in the aftermath of the first African American Presidency (which also involved the appointment of the first African American Attorney General). Less straightforward now is the question of how the Judiciary Committee will interpret 'senatorial courtesy' in a twenty-first century post-Obama form.
It may be that Cory Booker's conduct is inappropriate because he should not openly oppose one of his Senate colleagues ... let's not forget that Senate confirmation hearings were relatively private affairs in 1937, and nothing like the interactive media circus that we recognize in 2017. Furthermore, it seems significant that Sessions was, until his nomination, a senior member of the Judiciary Committee now scrutinizing him. On the other hand, 'senatorial courtesy' ought to refer not only to Senators respecting Sessions over Booker's objections ... it should also refer to Senators respecting Booker's objections, as he too, is one of their own. It would be rather like the nineteenth century, when a Senator could describe a Supreme Court nominee from his home state as 'personally obnoxious' to him, and other Senators would support his position out of respect.
It could be that senatorial courtesy is no longer relevant. In any case, South Carolina's Lindsey Graham will be one to watch. As a polite man and a fellow Southerner, he may well sympathize with Sessions, but, as one of the most vocal Senate critics of Donald Trump, it is unlikely that he will relish the opportunity to use his influential position to support the President-Elect.