Senata Majority Leader Harry Reid (D-Nev.) (WDCpix)

Moments before midnight on Friday, Marc Ambinder blogged at The Atlantic about some of the “juiciest revelations” in “Game Change,” a behind-the-scenes book on the 2008 presidential campaign by journalists Mark Halperin and John Heilemann. According to the authors, Sen. Harry Reid (D-Nev.) was bullish on Barack Obama’s chances at becoming the first African-American president because he was “light-skinned” and had “no Negro dialect, unless he wanted to have one.”

The White House immediately leaped to Reid’s defense, but for Republicans, this was manna from heaven. The National Republican Senatorial Committee blasted out three press releases on Reid’s “embarrassing” secondhand quotes. “For those who hope to one day live in a color-blind nation,” said NRSC spokesman Brian Walsh, “it appears Harry Reid is more than a few steps behind them.” On Sunday, after no Democrats had stepped out to criticize Reid, Republican National Committee Chairman Michael Steele rebounded from a tough week of attacks on his extracurricular book tour by demanding that Reid resign as Senate majority leader.

[GOP1]“If the standard is the one set by the Trent Lott incident,” said Steele, referring to the speech that felled the then-leader of Senate Republicans in 2002, “where he was wishing happy birthday to Strom Thurmond and talked about him as a possible president at the time, you know, 1948 or whatever, compared to calling a candidate for president, you know, light-skinned, Negro… there is this standard where the Democrats feel that they can say these things and they can apologize when it — when it comes from the mouths of their own. But if it comes from anyone else, it’s racism.”

The comparison between Reid and Lott, and the suggestion that he needed to resign his leadership post, was echoed across the Sunday shows by Sens. John Cornyn (R-Tex.) and Jon Kyl (R-Ariz.) and on Twitter and blogs from party activists. “Reid is simply getting a taste of the medicine he has so eagerly dished out to others,” wrote the blogger Patterico. “Unacceptable,” tweeted Ryan Frazier, an Aurora, Colorado councilman who’s one of the GOP’s leading African-American candidates for Congress. “Democrat Harry Reid should step down as Senate Leader.” One goal was to weaken Reid for a 2010 re-election campaign that’s flagging despite months of TV ads on his behalf. Almost as important, Republicans were attempting to do what they have had trouble doing since the rise of Barack Obama: to make the Democrats sweat and suffer for a perceived racial gaffe and to get revenge for Lott’s downfall. On Sunday, Democrats and other analysts struggled to see the comparison, pointing out the history that made Lott’s remark so damaging and the politically incorrect-but-accurate thrust of Reid’s remark. But Republicans stayed on message.

“The media covered up [Reid's] statement for nearly two years,” argued Michael Zak, a conservative writer who penned the “GOP Heroes” section of the RNC’s website, built to highlight the party’s African-American leaders of the past. “Had a Republican made such a racist statement, the media would have reported it immediately. As for whether Senator Reid should resign, both Barack Obama and Harry Reid called for Trent Lott’s ouster for a remark less offensive than Reid’s ‘Negro dialect’ remark.”

This isn’t the first time that Republicans have tried to recreate the Lott controversy and bring down a Democrat. In February 2005, then-Democratic National Committee Chairman Howard Dean joked that Republicans couldn’t fill a room with non-white members “unless they invited the hotel staff in.” Mississippi Republicans sprang to action, sending their African-American leadership out to demand Dean’s resignation. “Ask the Democratic party do the same thing to Dean that Republicans and other Democrats did to Senator Lott,” said Charles Evers, an African-American GOP activist and veteran of the Civil Rights movement.

But a contrast between Lott and any other politician is hard to make. When Lott made his remarks–unlike Reid, he did it in front of video cameras–he added that a Thurmond presidency would have prevented “all these problems over all these years.” Lott’s office was unable to explain what “all these problems” were. In the following days, two more instances of Lott waxing nostalgiac about Thurmond’s segregationist 1948 presidential bid surfaced. By comparison, Republicans like Steele have not produced more evidence of Reid racial slip-ups, focusing instead on his hypocrisy for criticizing Lott in 2002. Even Zak agreed that Lott, a member of the Council of Conservative Citizens who left the Democratic Party during the Civil Rights era, had a credibility problem when he tried to combat charges of racism.

“A statement by Trent Lott was one of the reasons I decided to write my history of the GOP,” said Zak. “At a Capitol Hill meeting with some Young Republicans I attended in the late 1990s, he said his all-time favorite Republican was Jefferson Davis. Of course, Jefferson Davis was a Democrat, as were nearly all the leaders of the Confederacy.”

Clay Steinman, a professor of media, humanities, & cultural studies at Minnesota’s Macalster College who has analyzed the how racial imagery influences voter and consumer decisions, criticized Republicans for comparing Lott’s statements with Reid’s. “That denies the significance of Lott endorsing Thurmond’s segregationist campaigns,” said Steinman. “It’s not sensitive to history.”

According to Steinman, Reid’s comments, however clumsy, were borne out by the experience of non-white candidates. In 2008, an Indian-American candidate named Ashwin Madia ran for, and lost, an open House seat in Minnesota. The National Republican Congressional Committee ran ads that portrayed Madia with noticeably darker skin than he really had. “Reid’s general sentiment was consistent with what we know about how people respond to bodies, and skin color, and accents,” said Steinman.

What research there is about voters and racial identity backs up Steinman’s take on Reid. A 1993 study by Nayda Terkildsen found that white test subjects were more favorable to light-skinned black candidates than dark-skinned candidates. In 2009, a study led by University of Chicago Prof. Eugene Caruso found that liberals who supported Obama said he was “best represented” by a photo in which he looked lighter; conservatives who opposed Obama said the opposite, picking a darker photo. “Liberals, who are going to think that Obama is generally good and generally American, may have these subtle associations linking him to the concept of white, which is reflected in their representativeness ratings,” Caruso explained. “The opposite would be true of conservatives.”

While there’s less research about the effect that candidates’ dialects have on voters, Reid’s remarks haven’t yet been challenged on that count. “Reid implied that Black English is lesser than standard English and that it’s therefore good that Obama doesn’t use it in public,” argued John McWhorter, an African-American scholar in linguistics whose work has been embraced by conservatives, in an article for The New Republic. “This is not about whether black people have to sweat to speak standard English; it’s about whether Black English is as good as standard English. Most of America black as well as white is at the exact same point in understanding vernacular speech and its proper evaluation as Reid is.”

On Sunday night, Republicans kept up the pressure on Reid, demanding that he explain how, at least, his comments didn’t reveal a jaundiced view of race in America. “The implication seems to be that in Reid’s view, if the President had darker skin and had a ‘negro dialect’ then he might not have been as well positioned to win the Presidency,” Walsh told TWI. “So he should explain what he meant because on its face it is in fact a racially insensitive statement.”

Still, Republican strategists told TWI that the party was ill-positioned to do much more damage to Reid. The senator had defended himself with political cover from the president, the Congressional Black Caucus, and Rev. Al Sharpton. And the details of the Lott scandal might not bear scrutiny in a way that hurts Reid. In 2002, as the incoming Lieutenant Governor of Maryland, Steele called Lott a “compassionate and tolerant statesman” whose apologies were enough to save his job.

“I know Trent Lott personally,” said Steele in 2002, “and I know that this is not his intent. But it’s still unfortunate. And I think he needs to apologize a little bit more.”

The senators know that, of course, but that doesn’t stop them from asking lots of inane questions they know Sotomayor won’t answer. Sen. Lindsey Graham (R-S.C.) at times barely stopped peppering her long enough to let her start her answer before he moved on to the next subject: from racial preferences to gun rights to publicly funded abortions.

Perhaps most disturbing about the hearings wasn’t the political posturing, which is to be expected.  It’s the dishonest way in which the debate has taken shape between Republicans and Democrats, as if Democrats are squishy touchy-feely people who let empathy guide judicial decision-making, and Republicans are automatons who miraculously apply the law to the facts without letting any trace of humanity get in their way.

Harvard Law Professor Laurence Tribe aptly describes how a historic and arguably important debate about constitutional interpretation and judicial processes in this hearing has become completely disingenuous:

Attending to one’s prejudices and doing one’s best to set them aside is admirable. Convincing oneself that one can render judgments in a way that makes one’s personal experiences and views irrelevant is dangerous self-deception. Why, after all, do the justices so often disagree about what result “the law” commands? What accounts for their different perceptions of the rules of law that govern disputes and of the facts involved in those disputes? Justice Antonin Scalia, among others, has publicly said that his own background and upbringing necessarily influence how he decides cases. How could it be otherwise?

Tribe was actually criticizing Sotomayor for flip-flopping on her previous positions that acknowledged she and every judge would be influenced by her background and experiences. But I don’t see Sotomayor as changing her tune so much as having to over-simplify an inherently complex and delicate concept to a bunch of aggressively tone-deaf senators, now themselves sitting in judgment and arguably abusing that power.

Sotomayor has obviously been practicing patience: Despite what Graham called her “nasty” judicial temperament, even as she dodged the slings and arrows, on Tuesday she was often smiling.

So I went back to the speech today to see what exactly she did mean by that remark, which she now admits was “a bad idea.”  And in context — of the speech, who she was talking to and the academic theorists she was citing — it makes a lot of sense.

Here’s the statement in the context of a few paragraphs:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

For anyone who truly wants to understand where Judge Sotomayor is coming from — even based purely on her speeches, as her Republican critics keep saying they want to take seriously — it’s worth reading the entire speech from start to finish.

Here it is.

Sotomayor attempted to align her comment about how a “wise Latina” would in some circumstances reach “a better decision” than a white male judge with Justice Sandra Day O’Connor’s earlier statements that “a wise old man and wise old woman will reach the same conclusion in deciding cases.”“I don’t think that anyone would think we intended to say that we would make wiser decisions,” said Sotomayor today, after Kyl read portions of her 2001 speech at Berkeley back to her. “I intended to talk about the value that life experiences had,” she said. “The words I chose, taking the rhetorical fluourish, was a bad idea. I do understand that there are some who have read this differently, and I understand why they are concerned. But I have repeated, more than once, and if you look at my history on the bench I do not believe that any gender or race group has an advantage in sound judging. And I also believe that every person regardless of their background can be good and wise judges.”

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Calls for party unity were announced and ignored as many of [defeated candidate Rachel] Hoff’s slate then resigned their races rather than lose along factional lines or serve alongside Shay. Already there are talks of reformers, in protest, breaking off to form a new branch of the Young Republicans dedicated to restoring the GOP’s long-lost reputation as the Party of Lincoln.

Notwithstanding her much-decried “wise Latina woman” claim, it turns out Sotomayor is no liberal activist hell-bent on replacing the Constitution’s equal protection clause with a new section mandating affirmative action, as some of the Republican criticism would suggest.

Instead, CRS reports, via Secrecy News: “Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents.”

According to the nonpartisan research service, Sotomayor’s other prominent characteristics include “a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as oversteping its judicial role.”

Hardly a judge who plans “to use her seat on the Supreme Court to advance liberal policy preferences,” as former Attorney General Ed Meese, who’s helping direct her critics, has suggested.

Back in 1986, Sessions was a U.S. Attorney who’d been nominated to be a federal judge by President Ronald Reagan. He was rejected by the Senate Judiciary Committee — the second time that had happened in half a century — after witnesses reported hearing him make comments such as referring to the NAACP as “un-American” and to a white lawyer working on a civil rights case in Alabama as “a disgrace to his race.”

NPR’s Michel Martin yesterday asked Hebert how that should affect how we view his criticisms of Supreme Court nominee Sonia Sotomayor now:

MARTIN: Is there something in [Sessions’] record at the time that causes you to believe that he did cross that line from being merely conservative in his approach to social issues to being racially hostile or insensitive was the word that was commonly used?

HEBERT: Oh, definitely back in 1986, I had no doubt about that and testified to that effect, I believe, that it wasn’t a question of, you know, he was joking about these things or saying them in a joking manner. He was someone who was a product of the Deep South, and his racial attitudes reflected at that time a continued hostility towards equal-opportunity efforts by African- Americans, particularly in Alabama.And that was true back then, and obviously he now represents many of those same people as a U.S. senator.

He will ask questions that he thinks he’s entitled to ask, and he’ll ask them in a very professional and what I would believe would be a very polite way. At the same time, ultimately, many of us feel that no matter what the answers are, he’ll still ultimately vote no.

Although it’s been 20 years since Hebert’s testimony, he said yesterday:

“I would still have concerns, frankly, today, just knowing the public persona of Jeff Sessions that I’ve seen over the years.”

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The stories about Marcus were for the most part inaccurate and incomplete.  Yet, the left wing bloggers ran with this little factoid because the assailant worked for organizations associated with Pat Buchanan and Tom Tancredo. What happened next was a modern day lynching by a faceless, angry, ignorant mob who reveled in the collective assault on their victim.

Speaking just for myself, as someone who knew Epstein socially, for three years, I think Buchanan gets at the point, then whiffs.

Yes, bloggers ran with this because Epstein worked with Pat Buchanan and former Rep. Tom Tancredo (R-Colo.) — two men who were making their way across the airwaves and the pages of popular news sites arguing that Supreme Court nominee Sonia Sotomayor was a “racist.” They did all of this knowing that they employed a troubled employee who not only had pled guilty to a racially charged assault, but who had a years-long record of white nationalist writing and associations.

I usually despise the “what if X has said this” framing of a controversy (which Bay Buchanan used to call Sotomayor a “bigot”), but consider — how would Buchanan and Tancredo react if, to pick an example totally at random, a Latina judge employed a top-level assistant who had written thousands of words for a Hispanic nationalist site, and who had pled guility to hitting a white woman and calling her a “cracker”? Would they stay mum or worry, publicly, about the possible “lynching” of this employee? Or would they, you know, call this judge a racist?

“In my newsletter I went a step too far in saying that she is a racist because I don’t know her and there’s no evidence [of racism] in her court decisions,” Gingrich told Sean Hannity. Nevertheless, he said, “it’s clear that her quote is clearly racist,” referring to the infamous “wise Latina woman” line. “It’s also clear … when you look at her writing and her speeches, she is quite radical. When you look at her judgments on the court bench, she’s not nearly as radical in her judgments. People have to ask themselves, as a Supreme Court Justice, would she be the radical we’re seeing, or would she be much more cautious?”

I think that was supposed to be the softer side of Newt.

But chances are that her critics will seize on the speeches and writings pertaining to race and discrimination — the primary source of controversy for this nominee. Like a 1974 letter to the editor of the Daily Princetonian in which, as an undergraduate, she criticized “an institutional pattern of discrimination” at the college, or a letter that criticized the lack of diversity among candidates considered to be a university Dean. Then there’s the 1981 letter to New York Governor Hugh Carey from the Puerto Rican Legal Defense and Education Fund, written while Sotomayor was on the organization’s board, which said that “capital punishment represents ongoing racism within our society.”

Those who have called Sotomayor “racist” will likely charge, based on these and a smattering of other comments in speeches or reports addressing gender or race discrimination during her three decades as a lawyer, that she’s too focused on remedying discrimination and therefore likely to be an “activist” on the Supreme Court supporting race-based remedies.

As I’ve written before, given how much Chief Justice John Roberts has pulled the court in the other direction, Sotomayor’s views based on a more varied background are an important antidote to the powerful right wing of the court. And as Tom Goldstein has pointed out, her opinions on the court of appeals hardly suggest any activism on her part when it comes to race-related claims.

But what her lengthy and detailed responses to the Senate highlight is how minuscule and irrelevant these decades-old expressions of Sotomayor’s personal sentiments really are in the context of her long and illustrious career. While sure to provide continued fodder for talk-show hosts, focusing on these claims and calling them evidence of racism is ultimately a doomed strategy for attacking an obviously qualified candidate. Trying to smear Sotomayor with writings from her student days makes little more sense than did trying to smear President Obama with things former Weatherman Bill Ayers did when Obama was a child.

It’s worth noting, too, that there is one thing that’s not asked in the questionnaire but is actually relevant to her qualifications for the Supreme Court, and which I dug up from her 1997 confirmation hearing. While some conservative pundits have misleadingly batted around her reversal rate by the Supreme Court (about 60 percent, which is typical and even slightly lower than most), far more relevant is her reversal rate as a district court judge, where she alone was deciding a case and the appellate court, unlike the Supreme Court, was required to hear all appeals. That’s where you really see whether a judge’s decisions were correct — or at least, within the mainstream of legal interpretation.

Turns out, in district court cases, Sotomayor’s reversal rate is extraordinarily low:  of 442 rulings, Judge Sotomayor was reversed only six times by a court of appeals. That’s a reversal rate of less than 1.4 percent.

I doubt her critics will be mentioning that.