“We are in a long and difficult fight,” Sessions told the gathering of leading conservative lawyers, judges and law professors from around the country. Sessions was referring to the importance of expanding conservatives’ influence on the federal judiciary, and rejecting President Obama’s interest in appointing judges with “empathy,” a factor the president said influenced his choice of Justice Sonia Sotomayor. Sessions reportedly said that conservatives must keep debating the appropriate role of judges and “must take the debate right to the American people.”

The three-day Federalist Society convention is taking place at Washington, D.C.’s Renaissance Mayflower Hotel. U.S. Supreme Court Justice Samuel Alito and Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit are among the scheduled speakers.

In his speech, Sessions said Republicans would not attempt to filibuster most of President Obama’s choices for the bench, although he didn’t rule out filibustering some of them.

He singled out Judge David Hamilton, a nominee to the Seventh Circuit Court of Appeals, as a judge who’s too liberal on matters such as abortion, prayer in public school and criminal sentencing. Sessions similarly criticized Hamilton in a recent letter sent to his Republican colleagues in the Senate. The letter, which called for Republicans to oppose his elevation to the court of appeals, said Hamilton was using his role on the district court to “drive a political agenda” and that Hamilton believed “empathy” should factor into the process of judging, which Sessions called a form of “activism.”

“NOT EVEN ONE JUSTICE APPROVED SOTOMAYER IN RICCI CASE,” blares the headline of a statement from Wendy Long, counsel to the Judicial Confirmation Network, on the Supreme Court’s decision.

“Frank Ricci finally got his day in court, despite the judging of Sonia Sotomayor, which all nine Justices of U.S. Supreme Court have now confirmed was in error,” she writes.

Huh?  Today’s ruling, as I noted before, was 5-4. Five justices voted to require the city to present more evidence — what the Supreme Court calls “a strong basis in evidence” — that if the city had not thrown out the results of a promotional exam that had a disparate impact on minorities, then it would have been legally liable to any racial minorities denied promotions who sued under the civil rights law.

Setting aside, for a moment, whether that evidentiary burden makes sense, there’s no question that only five of the nine justices supported it. The other four were just fine with the law the way it was, and believed that the city had presented sufficient evidence to satisfy its decision.

Justice Ruth Bader Ginsburg, writing for the four justices in dissent, questioned the court’s “newly announced strong-basis-in-evidence” standard and recites in painstaking detail the evidence supporting the city’s decision. She went on to note that since the majority is announcing “a new legal rule,” then it should remand the case to allow the lower courts to apply it, since they didn’t have notice before that that’s what the rule was. “[T]he ordinary course is to remand and allow the lower courts to apply the rule in the first instance,” she wrote, chastising the majority for not following that usual course and instead deciding against the city of New Haven.

Within hours after the decision, conservatives had turned this notion that the majority should have remanded the case if it was going to decide a new legal rule into the idea that the four dissenting justices had repudiated Sotomayor and the reasoning of the Second Circuit panel on which she sat.

“This was a unanimous decision that the 2nd circuit was incorrect,” said Gail Heriot, a professor at the University of San Diego School of Law on a conference call organized by the Federalist Society this morning. “Nobody agreed with Sotomayor. Nobody.”

As Long continues in her release:

“Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession.

“What Judge Sotomayor did in Ricci was the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One.

Well, that’s not how Justice Ginsburg and her co-dissenters see it, as they made clear in this passage:

Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that standard, petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate-treatment provision.

UPDATE: Sen. John Cornyn (R-Texas) has weighed in with his view of today’s Supreme Court decision in the Ricci case, and — suprise! — he reads the 5-4 decision as a 9-0 against Sotomayor, just like Wendy Long and the Federalist Society lawyers do:

Today’s decision is a victory for evenhanded application of the law. Saying the earlier decision was “antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race,” the Supreme Court saw the case for what it is: a “race-based decision” that violates federal law. And while the Justices divided on the outcome, all nine Justices were critical of the trial court opinion that Judge Sotomayor endorsed. [Emphasis added.]

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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.

So on a Federalist Society-sponsored conference call with reporters this morning, David Rivkin, a corporate defense lawyer and former Justice Department official under Presidents Reagan and George H.W. Bush, reiterated the point that SERE trainees were never really hurt by their training; therefore, neither were suspected terrorists.  Accordingly, the techniques cannot possibly have violated domestic or international law forbidding torture and cruel, inhuman and degrading treatment.

“It’s in this area that SERE research is so compelling,” said Rivkin. “Researchers went back at frequent intervals and analyzed large numbers of people” who underwent this training, and there was “no evidence to show that SERE training caused mental pain and suffering.”

OK, let’s set aside for a second that the memos also noted that interrogators in real-life situations at CIA black sites probably weren’t following the same laboratory-controlled conditions that SERE trainers follow on a U.S. military base, and, as Spencer has pointed out, that the trainers themselves acknowledged that such practices violate international law.

Focusing purely on the psychological impact of the techniques:  if you’re a soldier undergoing training under carefully monitored conditions, isn’t your experience of those SERE techniques going to be completely different than if you’re a prisoner captured by a foreign country and subjected to them by people trying to extract information from you? Isn’t the whole point of using “extreme interrogation techniques” to terrify the subject, so they will cough up useful information?

In other words, if we’re talking about the psychological impact of the techniques, it’s unclear to me how the impact of SERE training on U.S. soldiers even relevant to gauging the impact of those same acts by hostile interrogators on prisoners labeled “enemy combatants.”

As every lawyer knows, the lawfulness of any action depends heavily on its context. It’s a bit odd how easily some conservative lawyers are ignoring this one.

As he said on a conference call with reporters organized by the Federalist Society this morning, “as reprehensible as people may find it [waterboarding], it’s not an infliction of severe pain.”  What’s more, it’s “not of long term duration such that it would be considered infliction of severe mental pain under cases that interpret that,” either.

“As far as mental suffering is concerned, that involves at least the creation of a fear of imminent death,” said McCarthy. “While it’s a favorite talking point that people were waterboarded 180 times … it undercuts the fear that there was going to be imminent death. After the first or second time you get the point that there’s no death to be feared here.”

So the more a detainee is waterboarded, this astute legal reasoning goes, the more he gets the idea he’s going to survive, and the less like torture it really is.

But isn’t the idea to terrify the guy into talking?  Otherwise, why do it?