“‘They will have destroyed their party much as Lyndon Johnson shattered the Democratic Party for 40 years’ with the enactment of civil rights legislation in the 1960s,” Balz wrote, quoting Gingrich.

That statement led to my short post yesterday, questioning why Gingrich would suggest that political expediency should trump reforms as vital as those ensuring basic human rights. More recently, New York Times columnist Paul Krugman also latched onto Gingrich’s comments, asking today: “Who in modern America would say that L.B.J. did the wrong thing by pushing for racial equality?”

Turns out Gingrich didn’t like the way his words were framed, and he let Balz know it in a series of emails yesterday. That exchange led Balz today to issue this separate addendum, in which Gingrich says the Civil Rights Act was a moral necessity.

Gingrich responded with several emails saying that the context misrepresented his views by implying that he believed Johnson was wrong to sign the major civil rights legislation of the 1960s. To the contrary, he said, the civil rights revolution of 1956-1965 was “morally absolutely necessary” for the country and Johnson was correct in pushing for the legislation. Other Johnson actions, he said, inflicted more damage to the Democratic coalition.

Johnson shattered his party, Gingrich went on to say, because he had “grotesquely overreached” in four areas: mismanagement of the economy, the failure in Vietnam, the cultural divisions that emerged in part over Vietnam and later civil rights initiatives. Johnson’s mistake on civil rights, he said, was not in signing major legislation but in later getting ahead of the country by supporting school busing and failing to take a firmer stance against racial violence in the cities.

“If LBJ had done nothing on civil rights,” Gingrich said, “he would still have been in trouble on the economy, Great Society big government, the counter culture and the war.”

For the sake of argument, let’s say he’s right about that. It still doesn’t clear up the issue. For one thing, Gingrich’s comments weren’t intended to be friendly advice for Democrats. (What does he care if they flail in chaos for the next 40 years?) They were lobbed as a Hail Mary attempt to kill the health reform by causing House Democrats to fear the political repercussions of their support. And what single vote under the Johnson White House would make that point most clearly but the one enacting the Civil Rights Act?

Joe DeSantis, a Gingrich spokesman, wrote in our comment thread this morning that “Gingrich was not drawing an analogy between the health care bill and civil rights legislation.”

Maybe not. But Balz is standing by it. Indeed, despite the separate addendum, the original story remains unchanged.

Congress has held two hearings already on the cases of Ashcroft v. Iqbal and Bell Atlantic v. Twombly, which introduced a new “credibility” requirement in pleading standards that civil rights advocates and some Democratic lawmakers complain leaves the fate of discrimination victims to the prejudices of a particular judge assigned to the case. Now, instead of simply having to state clearly what the claims are, plaintiffs have to convince the judge that those claims are credible at the outset, before even having had an opportunity to collect evidence to support them.

While that pleases some conservatives who view most civil rights lawsuits with skepticism, civil rights experts say it rewards employers and others who discriminate but have learned to cover their tracks.

As the Times puts it today: “The practical impact in, say, an employment discrimination case is to disadvantage the wronged employee, who is unlikely to have access at the outset to the records needed to prove wrongful conduct.”

The Times cites John Payton, president of the NAACP legal defense fund, who recently testified that some of the landmark cases of the civil rights era might never have survived the Supreme Court’s new standard. In his written testimony submitted to the Senate Judiciary Committee earlier this month, Payton cites specific examples of potentially meritorious cases that didn’t survive the new standard because the plaintiffs couldn’t convince a skeptical judge that employment, voting or housing discrimination is “credible.”

As Sen. Sheldon Whitehouse (D-R.I.), a former U.S. Attorney, put it at that Senate hearing, “In my experience, misconduct is inherently implausible” because we generally expect people to act decently, fairly and lawfully.

Nadler’s legislation acknowledges the fact that sometimes, they don’t live up to that standard.

As Aaron noted earlier, the Supreme Court this morning decided that the city of New Haven violated the federal civil rights law when it denied white firefighters promotions based in part on their race. That the city was only acting to avoid a lawsuit under the same civil rights law shouldn’t matter, the court ruled in a 5-4 decision.

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy wrote in the majority opinion, joined by the usual block of conservative justices — Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen Breyer, David Souter and John Paul Stevens. Ginsburg wrote that while the white firefighters “understandably attract this court’s sympathy,” they had “no vested right to promotion. Nor have other persons received promotions in preference to them.”

People for the American Way, which supports the Sotomayor nomination, released a statement this morning in anticipation of today’s ruling, saying that the ruling, whatever it would be, “does not reflect upon Sotomayor’s jurisprudence.”

Sotomayor and her panel colleagues were bound by longstanding precedent and federal law. They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism.

The Federalist Society has scheduled a conference call with reporters for later this morning, at which point they’re sure to put their own spin on the decision.

Given how close the ruling was, though, it will be hard to say that Sotomayor’s decision in the lower court was either right or wrong, as a legal matter. In fact, Sotomayor was in the majority of her own court in deciding to affirm the district court’s finding that New Haven did not intentionally discriminate against the white firefighters when it tossed out the results of a promotional exam that had a disparate impact on black and Hispanic applicants. That disparate impact could have been the basis for a lawsuit against the city. Whether race was also a factor, in addition to avoiding a lawsuit, is an issue that was never directly addressed or briefed in the lower court, which, as I’ve explained before, is one reason that the full Second Circuit voted against re-hearing the case.

Whether the Supreme Court majority today made new law by deciding the way it did will be the subject of contention for weeks to come.

Business groups have spent millions lobbying against the Ledbetter bill, which allows women who were discriminated against to sue their employer as long as the discrimination continues:  in other words, if a female employee was being paid less than a man doing the same job for the last five years, she can sue for pay discrimination as long as she’s still being paid less.  She can only receive damages going back two years, though.  Employers’ groups have argued that’s still unfair, complaining that it’s too difficult to defend an employment decision from five years ago.

But even more significant are a few other pieces of legislation that may be coming down the pike:

The first is the Paycheck Fairness Act, which would lift the cap on punitive and compensatory damages that currently exist in Equal Pay Act cases. That means a jury would decide how much the employer owes the employee who was being discriminated against, instead of the law arbitrarily imposing a limit. It would also allow employees to more easily include others in their class action claims, when a group of people — say, all women working at a checkout counter — are discriminated against similarly.

Then, there’s the Civil Rights Act of 2008 — which could be introduced as the Civil Rights Act of 2009 — that would more broadly lift those damages caps on all employment discrimination claims. Right now, there’s a $300,000 limit imposed by law.

Employment defense lawyers tell me that their clients are already working hard behind the scenes to keep that legislation from coming to the floor for a vote. Though they succeeded in rallying staunch Republican opposition to the Ledbetter Act, a Democratic Congress passed it anyway.

Employee advocates will have to push back hard if they’re going to win these battles.

Senate Republicans are following this course for three key reasons — first is payback against a major industrial union; second is payback against states like Michigan and Ohio who have been moving away from the GOP; third is the desire to advantage Japanese auto manufacturers who disproportionately do business in their southern states.

I think the first and second points are key — that the GOP is taking a firm stand against the United Auto Workers, a core Democratic constituency, and in turn, against big-time GM states like Michigan and Ohio.

In recent history, Michigan and Ohio have been reliable swing states. But the actions of prominent Republicans may call into question whether they will retain their status as battleground states in future competitive elections.

As President Lyndon Johnson famously and presciently mused about the impact his signing of the Civil Rights Act of 1964 would have on his own Democratic Party, “There goes the South for a generation.”

I suspect some forward-thinking Republicans might harbor similar concerns about Michigan and Ohio.