Many, many media outlets have reported that in 2009, Senator Jeff Sessions opposed federal hate-crimes legislation on this rationale: “Today, I’m not sure women or people with different sexual orientations face that kind of discrimination. I just don’t see it.” Senator Feinstein brought up the quote, indignantly, during his confirmation hearings. It has been cited in Slate, Salon, Vox, the Guardian, and the New York Review of Books, among other places. (On the NBC News site, Northern Arizona University professor Stephen Nuño used the quote, said that Sessions had made the comment this week, and invented a context for it.)
Sessions most thoroughly made his case against federal hate-crimes laws in a floor speech on July 20, 2009. He argued that prosecuting robberies, murders, arsons, and rapes should be a state and local responsibility rather than a federal one. He said that federal involvement would be justified only if there were evidence of widespread state-government and local-government indifference to the subset of those crimes motivated by bigotry. He said that hate-crimes legislation risked treating the victims of equally heinous offenses unequally. He made, in short, the standard arguments against hate-crimes laws that have been advanced by most conservatives and libertarians and some liberals.
The quote that Sessions critics are using comes from a hearing a month earlier. (Thanks to my colleague Paul Crookston for tracking it down.) In his opening statement Sessions referred to the “demonstrated need” for the federal civil-rights legislation of the 1960s: State and local governments were not protecting African-Americans. He said there should be a study of whether state and local governments were falling down on the job of prosecuting the crimes that the proposed federal legislation concerned.
Later in the hearing came the comment. Here it is, with a little bit more of what he said before and afterward for context:
If you can show that there is statistical research that indicates that a serious problem exists in this country, I’m willing to talk about it. It did exist, Ms. Cohen [Sessions was addressing witness Janet Langhart Cohen], in the South throughout much of our history and we have that Civil Rights Act that allowed that to happen. It was justified, as I said in my opening statement, because the facts justified that.
You know the discrimination; African-Americans couldn’t go to certain schools, they couldn’t use certain restrooms, there were other kinds of routine biases against them. Out of that was why this bill passed. But today I am not sure women or people with different sexual orientations face that kind of discrimination. I just don’t see it. So I believe that if they are harassed or discriminated against unfairly, we probably have the laws—I believe we have the laws to fix it. So what the question would be, is this one necessary? I’m not sure that it is. Matter of fact, I don’t think that it is, based on what I know.
So he wasn’t denying that women or gays faced discrimination; he was denying that they faced the kind of discrimination that African-Americans in the South faced when the civil-rights laws were adopted, and that justified those laws. Hence the words “that kind of,” which coverage of the Sessions nomination has invariably left unexplained when quoting. And his argument overall wasn’t that hate crimes never happen—let alone that they should not be prosecuted—but that the federal government should have good reason to think that states and localities were failing to combat them before getting involved.
I’d paraphrase Sessions’s argument thus: The civil-rights laws were an extraordinary federal response to serious misconduct by state and local governments, and the federal government has less justification in intervening absent such misconduct. I myself think that argument is sound. Agree or disagree, though, the observation he was making in support of that argument—that hate crimes in 2009 did not add up to the kind of systematic deprivation of civil rights that Jim Crow did in the early 1960s—seems indisputable.