Levin’s remarks were made this morning at a conference at the Washington College of Law at American University addressing the ethical responsibilities of OLC lawyers and how they should be held accountable for authorizing abusive conduct that now appears to have been illegal. “Any government employee is appropriately subject to investigation of their conduct while they’re serving in government,” said Levin, who is now a partner at the law firm White & Case.

Later in the discussion, Levin also said that a truth commission that would investigate and reveal how the lawyers in his office reached their conclusions “would be useful.” Sen. Patrick Leahy (D-Vt.) has proposed such a commission, but so far apparently does not have majority support for the idea in Congress. Levin spoke on a panel of experts that included Georgetown Law Professor David Luban, Alliance for Justice president Nan Aron, and Newsweek columnist Stuart Taylor.

“Maybe the [Office of Professional Responsibility] report will give some of the factual basis that will allow people to make judgments about that,” said Levin, referring to the ethics report of the OLC lawyers’ work conducted by a division of the Justice Department which has yet to be released. The report was drafted over several years and completed by the end of the Bush administration. “But I would agree if you could have a serious look at this it would be very valuable.”

Upon completion, the OPR report was sent to its subjects — including former OLC lawyers John Yoo, Jay Bybee and Stephen Bradbury, for their review and comment — and is still under Justice Department and possibly CIA review. It reportedly analyzes the lawyers’ communications with senior government officials and is highly critical of their conduct.

In fact, conservative columnist Stuart Taylor warns his compatriots in the opening of this new piece in the National Journal:

Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old “liberal activist” slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court’s conservatives are as activist as the liberals, especially on racial issues.

Taylor doesn’t think that’s a bad thing, because Taylor thinks that the court is just reflecting the fact that “Americans want racially preferential affirmative-action programs abolished.” But Taylor seems to forget that the whole point of the Supreme Court is that it’s a counter-majoritarian institution, designed to decide what’s constitutional, not what’s popular. That’s how we got rid of things like enforced racial segregation in schools, remember?

Anyway, Big Tent Democrat also points out the hypocrisy of conservatives now supporting the “judicial activism” they’ve long decried just because now it’s working in their favor.

In fact, Taylor now seems to question the very definition of the term, writing:

[I]s it judicial activism when the justices stretch the Constitution to go over the heads of the political branches — which are dominated by special-interest lobbies — not to overrule the voters but rather to give them what they want?

Wow, that’s a new one. So now the court is supposed to act to correct the distortions in the political process by using their insight as insulated Supreme Court Justices in Washington to discern the true desires of the American people?

It’s a whole new twist on “separation of powers.”

If, deprived of their context, these statements sound controversial, in the context of her lecture, titled “A Latina Judge’s Voice,” they made perfect sense.

Sotomayor’s view that judges are influenced by their background and experiences is backed up by studies that show that women judges, for example, tend to rule in a way that’s more sympathetic to plaintiffs in employment discrimination cases than male judges do — probably because, having experienced discrimination themselves as they struggled to advance in a male-dominated profession, they’re more attuned to its signs.

A recent study by political scientists and law professors Christina Boyd, Lee Epstein and Andrew Martin, for example, found that “female judges are approximately 10 percent more likely to rule in favor of the party bringing the discrimination claim,” as two of the authors wrote recently in The Washington Post. What’s more, they wrote, “[w]e also found that the presence of a female judge causes male judges to vote differently. When male and female judges serve together to decide a sex discrimination case, the male judges are nearly 15 percent more likely to rule in favor of the party alleging discrimination than when they sit with male judges only.”

Sotomayor, in her 2002 lecture, similarly noted that “The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women’s claims in sex discrimination cases and criminal defendants’ claims in search and seizure cases.”

“As recognized by legal scholars,” she continued, “whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.”

While Sotomayor’s comments, taken out of context, provide fodder for her right-wing critics, it’s worth noting that the judge has the evidence on her side.

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Though the full Second Circuit Court of Appeals declined to re-hear the case, suggesting a majority of judges agreed with Sotomayor, columnists from Richard Cohen of The Washington Post and Stuart Taylor at National Journal to Ed Whelan at National Review have attacked Sotomayor for allowing the city of New Haven to consider the racial impact of determining promotions based purely on an exam that had a racially disparate impact.

If we lived in a society where the law forbids ever taking race into account, then the critics might be right. But we don’t live in a race-blind society and our laws — such as the Civil Rights Act, under which New Haven could have been sued for discrimination if it had promoted only white firefighters — acknowledge that.

Take, for example, the No Child Left Behind Act, one of the signature acts of the Bush administration, signed into law in 2002 with the overwhelming support of both Republicans and Democrats in Congress. That law, recognizing that minority children in this country have historically not done as well in school as white kids, explicitly requires school districts to categorize student success by, among other things, race. And the outcomes make a big difference for the district. If minority children are performing below a certain level, schools are penalized, and eventually can even be closed. So schools have an incentive to target extra resources toward minority students that aren’t performing well to ensure they meet the law’s targets.  Isn’t that a race-based standard?

Did any of the Republicans who sponsored the law – including John Boehner (R-Ohio) in the House and Judd Gregg (R-N.H.) in the Senate complain about that?  Not that I can tell.

When President George W. Bush and his fellow Republicans included race-based criteria in their legislative agenda, it wasn’t illegal discrimination or affirmative action; it was compassionate conservatism. When a Latina woman is among a group of judges who acknowledge racial realities, she’s a hard-left liberal with a “very expansive” reading of the constitution that’s guided by “her personal feelings” rather than the law.

When President George H.W. Bush nominated Sotomayor to the U.S. District Court for the Southern District of New York, the Princeton and Yale graduate, former prosecutor and commercial litigator, sailed through Senate confirmation with ease. But when President Clinton nominated her to the Court of Appeals, Republicans stalled her nomination for more than a year — reportedly because they knew that a spot on the highly-regarded Second Circuit would situate her well for a future appointment to the U.S. Supreme Court.

TWI’s David Wiegel has written about how Republicans are itching to use President Obama’s first Supreme Court nomination to galvanize Republican loyalists — something The New York Times picked up on this past weekend.

These latest attacks on Sotomayor’s legal opinions are just that — politics, not principle.

So how might that affect the new Obama administration’s plans to respond to the Bush-era war crimes? In fact, not so much. As Mark Benjamin writes in Salon today, the Obama team has so far carefully avoided any plans to prosecute Bush administration officials, reportedly planning a bipartisan investigatory commission – a sort of “truth commission,” perhaps along the lines of one proposed by Rosa Brooks or even Stuart Taylor, who first publicly raised the Bush pardon idea in the first place – as a less politically charged alternative.

That won’t satisfy those who want to see the perpetrators of illegal torture policies behind bars. But if President Bush does decide to go ahead and issue a blanket pardon for all involved, the reported Obama plan has the benefit of at least airing the truth about what happened, (and perhaps publicly humiliating the perpetrators), even if President Bush tries to use his executive power to bury it.