updated 5/29/2009 3:38:21 PM ET 2009-05-29T19:38:21

Guests: Curt Levy, Linda Sanchez, Robert Reich, Rep. Joe Sestak, Sam Stein, Laura Flanders, Michael Medved, Paul Rieckhoff, Michael Scherer

(BEGIN VIDEOTAPE)

ED SCHULTZ, HOST:  I‘m Ed Schultz.  This is THE ED SHOW.

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SCHULTZ:  Good evening, Americans. 

Live from 30 Rock in New York City, it‘s THE ED SHOW on MSNBC.

The right wing is on the offensive.  They‘re accusing the first Hispanic Supreme Court nominee of being a racist.  Tom Tancredo threw out that new line of attack last night on this show.

More on that in a moment.

Robert Reich is here to tell us why Democratic leaders are caving in on health care reform and what can we do to stop it. 

The Pentagon says U.S. combat troops could be in Iraq for 10 more years?  This isn‘t the change we voted for.  We need to end the war now.

Plus, “Psycho Talk” and the conversation tonight about Proposition 8 in California with the most feared man in Washington. 

All that and a great panel. 

But first, tonight‘s “OpEd.” 

Conservatives are trying to label President Obama‘s pick for the Supreme Court a racist.  This is a new low, and it brings us to a new level of discourse. 

Their focus is a 2002 speech Sotomayor gave at UC Berkeley.  Now, in the opening event of this conference, which was billed “Raising the Bar:

Latino and Latina Presence in the Judiciary and the Struggle for Representation.”

Now, that was the title of this conference. 

So Judge Sotomayor talked about her life experience as a Latina woman and how it might give her better insight as a judge.  Conservatives claim this is reverse racism. 

This is the comment in question in question in that speech.  She said, “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male that hasn‘t lived that life.”

You know, what is racist about?  She‘s talking about diversity, she‘s talking about life experiences and how that experience would help a judge or anyone come to a better conclusion on anything. 

Folks, have you ever heard the saying, “Walk a mile in my shoes”?  You can‘t deny the fact that there is value in life experience. 

This is exactly what Sotomayor was talking about.  The key phrase, I think, in her comment, “the richness of her experience.”

How valuable would it be for someone from a different walk of life to sit on the Supreme Court?  That‘s the question. 

This, my friends, is diversity.  This is why we have nine judges and not just one. 

And I think you can put it this way: Not all of these judges are going to go hunting with Dick Cheney.  They are different.  But Antonin Scalia does go hunting with him.  That‘s his life experience. 

He could talk about that.  He could relate about that. 

I think the other word that jumps out in this statement is the word “better.”  Keep in mind, she didn‘t say “different.”  She said “better.”  And there is a distinction when it comes to life experiences.  The trials and tribulations of someone‘s journey in life has to be taken into consideration. 

Now, a New York fair-minded American would come to that conclusion. 

Any American would come to that conclusion.  She‘s from New York. 

But to call it reverse racism I think speaks volumes as to why conservatives are flawed in their thinking and why they‘re so out of step with average Americans.  Do you want all walks of life on the Supreme Court?  Is her comment relevant to the criteria of being a tremendous judge on the Supreme Court? 

Let‘s ask those questions tonight and let‘s get some commentary.  Joining me now is Curt Levy, executive director for the Committee for Justice. 

Mr. Levy, good to have you with us tonight.

CURT LEVY, EXECUTIVE DIRECTOR, COMMITTEE FOR JUSTICE:  Thank you so much for having me, Ed. 

SCHULTZ:  I have to clear the table here, sir.  Do you agree with some of the comments that are out there today, even by the speaker of the House, Newt Gingrich, that she‘s a racist?  Would you go that far?

LEVY:  You know, I don‘t like the term “racist” because it‘s name calling.  But let‘s look at what she said. 

She said that a Latina woman would make a better justice than a man.  I think that that‘s—I don‘t like when people talk about one gender being superior, one race being superior.  Call it whatever you want, I‘m sure she had good intentions, but turn it around. 

If you have a white male judge claiming that because he was a white male, he would make a better judge that an Hispanic or a female, we would consider that racist.  But why get into name calling?  I‘m sure she didn‘t mean to be racist, but she did say something which some people would find offensive. 

SCHULTZ:  All right.  Now, she didn‘t say that she would make a better judgment than a white male.  We need to dissect this sentence and be very fair about this. 

Her comment was, “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white mail who hasn‘t lived that life.”

LEVY:  Well, that is a better judge.

SCHULTZ:  Now Mr. Levy, seriously, can you tell me that the white male judges on the Supreme Court can really relate to Latina women in our society? 

LEVY:  Well, you know, it was nine white male, old white male judges, who reversed Plessy v. Ferguson in Brown v. Board.  It ended segregation, and that was very much based on understanding what it was like to be a black kid in an all black school, that that was not equal. 

I would like to think that all human beings, all good human beings, can put themselves in other people‘s shoes.  It‘s—diversity is great, but you should not pick a Supreme Court justice on the basis of demographics, and certainly you should not do what she alluded to in other parts of that speech, which is allow your sympathy for one identity group or another, be it white, Hispanic, black, gay, straight, or whatever, influence your judging.  Judges are supposed to be impartial. 

SCHULTZ:  But not to wordsmith, Mr. Levy—respectfully, you agree with Newt Gingrich.  You believe that this woman is a racist? 

LEVY:  No.  Again, I don‘t think...

SCHULTZ:  Well, no, you are.  No, be very clear here. 

I mean, I don‘t mean to broad-brush the comment, but, I mean, I believe that she‘s talking about the richness of her experience of—hey, I‘m a red head.  OK?  I mean, heck, you ever grow up being a red head?  I get picked on all the time, we all did.  All right? 

But the richness of her experience as a Latina woman, what is racist about that? 

LEVY:  But Ed, we‘ve all had different types of experiences, and it‘s great to have people with different experiences on the court.  Again, I would never brand someone a racist based on one comment.  I think it was not the most politic way to put the remark.  Let‘s put it that way. 

SCHULTZ:  OK.  So you‘re claiming that she‘s not a racist, if I‘ve got this correct? 

LEVY:  No.  I think she may have theories on...

SCHULTZ:  OK. 

LEVY:  ... racial and gender politics I don‘t agree with, but I don‘t think she‘s a racist, no. 

SCHULTZ:  Is there anything that she has done on the bench that has favored Latinos or minorities that would lead you to the conclusion that she is a racist? 

LEVY:  Well, you know, there is the New Haven firefighters case in which she said it was OK to throw out an exam because white people had done too well on it.  This was a promotion exam for firefighters. 

SCHULTZ:  She agreed with the lower court on that.  Now, let‘s not get away from the fact.  She agreed with the lower court on that.

LEVY:  She did.  You said, was there anything? 

SCHULTZ:  OK.  All right.

LEVY:  I can explain to you why I don‘t think it was a good decision legally, but you asked me, is there anything where she seemed to favor a certain racial group?  And the answer is yes. 

SCHULTZ:  OK.

LEVY:  Why did she reach that decision?  You‘ll have to ask her.

SCHULTZ:  All right.  Now, do you buy into this on the right wing of this country that she‘s not smart, that she‘s academically challenged, after the accomplishments that she‘s had?  And she‘s been on the bench for 17 years.

Do you agree with that?

LEVY:  Well, you know, there are a couple of very well known liberal professors like Jonathan Turley and Jeffrey Rosen who said that they don‘t think she‘s an intellectual heavyweight.  I‘ve never met her.  It‘s not really for me to judge.

But you know, just—look, I graduated honors from Harvard Law School.  That‘s not enough to make me qualified for the Supreme Court.

SCHULTZ:  Well, I think we should point out...

LEVY:  So we do need to look at her other credentials.

SCHULTZ:  ... that Mr. Rosen was quoting anonymous sources, and everybody‘s certainly entitled to their opinion.  But her academic prowess is well documented.

Mr. Levy, good to have you with us tonight.  I appreciate it.

LEVY:  Thank you, Ed.

SCHULTZ:  You bet.  Thank you very much.

Joining me now is Congresswoman Linda Sanchez, a member of the House Judiciary Committee. 

Linda, what is your response to some of the chatter out there that this is an affirmative action hire, selection? 

REP. LINDA SANCHEZ (D), JUDICIARY COMMITTEE:  You know, I think it‘s demeaning to her accomplishments and the fact that she has a substantial record, judicial record.  She‘s been a judge for more than 10 years, she‘s authored hundreds of opinions.  She has a very low rate of reversal, less than one percent.  The vast majority of her decisions have been upheld. 

She has been a prosecutor.  She has more experience as a nominee for the Supreme Court than Supreme Court justices have had for the past 70 years.  So how people can look at her and say, oh, she is simply an affirmative action hire is beyond me, because she‘s eminently qualified, and I think it is really demeaning for people to grasp at straws to try to say that she‘s not qualified to serve on the Supreme Court. 

SCHULTZ:  Well, Congresswoman, I think it has to be pointed out that it took the conservatives one day to play the race card. 

This is Tom Tancredo, your former colleague on the conservative side from the Congress, on this program last night playing that card. 

(BEGIN VIDEO CLIP)

TOM TANCREDO ®, FMR. CONGRESSMAN:  I would continually bring up this quote of hers.  I would like her to explain that. 

It is incredible to me.  There is no one else I can think of who could possibly have said the kind of things she said if they were reported accurately about the benefits of being a brown woman, as opposed to a white man, in interpreting the law.  And nobody can look at that and say that that was not a racist, sexist statement that would disqualify anybody else.

SCHULTZ:  All right.

Bill, I‘m going to let you respond to that.

TANCREDO:  But why her?  Because, of course, what you just said.  She is an Hispanic woman, and therefore we can‘t say things like this.

(END VIDEO CLIP)

SCHULTZ:  What do you think of that, Congresswoman?

SANCHEZ:  I just think that that conclusion that Mr. Tancredo jumps to is completely baseless. 

Number one, her quote taken in context—and I think you accurately are trying to put it into context—with the richness in her background, her lifetime of experiences—which I would venture to guess are vastly different than those that currently serve on the court, I think make her unique, give her a unique perspective to be able to understand not just dispensing the letter of the law, because, yes, serving as a judge is about dealing with prior precedent and prior case law which is—she was bound to rule the way that she did in the New Haven case because of prior case law.  But it‘s also about dispensing justice. 

That‘s fundamentally the role of the court.  It‘s to look at not just the letter of the law, but the spirit of the law as well, and interpret it in a way that makes a just outcome.

And so I think that given the adversity that she‘s encountered, and her perseverance and hard work ethic, and her numerous accomplishments, both academic and as a member of the bench...

SCHULTZ:  No doubt.

SANCHEZ:  ... I think it makes her an excellent candidate for the Supreme Court.  And for people to suggest that that richness somehow makes her a racist, I don‘t understand it. 

SCHULTZ:  Well, Congresswoman, I agree with you, but I also think that it‘s reached a new level.  You have the former speaker of the House today twittering that he thinks she‘s a racist. 

Now, my question tonight to you is, are Hispanics, elected officials around the country, going to sit back and have Sotomayor just fight these people off on her own?  I mean, it would seem to me that this would draw a very strong response, to say the least, from Latinos in this country who have been elected by their peers. 

SANCHEZ:  Not just from the Latino community, but, I mean, from her colleagues on the bench.  They stood up to defend her record.

But certainly, I mean, women, I think the Hispanic community, I think anybody who understands the judicial nomination process, and understand how qualified she is, they should all be rallying to her defense.

SCHULTZ:  No doubt.

SANCHEZ:  And my sincere hope is that they do.  She is super qualified, and I think just a phenomenal figure. 

SCHULTZ:  And she‘s not a racist. 

SANCHEZ:  And a great role model.  Absolutely not. 

SCHULTZ:  Yes.  Well, that‘s what‘s out there.  It‘s unfortunate. 

SANCHEZ:  It is.

SCHULTZ:  Congresswoman, we‘ve got to run here.  I appreciate your time tonight. 

SANCHEZ:  Absolutely, Ed. 

SCHULTZ:  Thank you for speaking up.

SANCHEZ:  Thank you.

SCHULTZ:  Coming up next, are Democrats giving away the store on health care reform?  I mean, do they really think we can trust the big insurance companies?  They are the ones, I think, that have been rigging the system in the first place. 

I‘ll talk to Robert Reich about that‘ next on THE ED SHOW.

Stay with us.

(COMMERCIAL BREAK)

SCHULTZ:  Welcome back to THE ED SHOW.

Are Democrats caving in on health care reform?  Big question mark. 

I get e-mails on this all the time.  People are saying, “Ed, the first show you did on MSNBC, you pulled out your health care bill.  Don‘t let this die.”

Well, first Senator Baucus took single payer off the table.  Now Senator Schumer is pushing a compromise where any public plan would “adhere to private insurance rules?” 

Now, I don‘t want to prejudge this thing, but wasn‘t it the whole point of a public option that it wouldn‘t follow the for-profit rules that have gotten us in such bad situations with health care costs going up and bigger and bigger monthly payments all the time? 

Now, if we don‘t want to push back on this, we know that big pharma and big insurance companies are going to be just taking us to the woodshed.  Are Democrats giving away the store on this?  What‘s this about a compromise? 

Joining me now is Robert Reich, former secretary of labor and professor of public policy at UC Berkeley.  His book, “Supercapitalism,” is available now in paperback. 

Mr. Reich, tell us, where are the Democrats going wrong on this? 

ROBERT REICH, FMR. LABOR SECRETARY:  Well, Ed, there are compromises and then there are compromises.  There are compromises that are giving away the store, and I hope I am wrong when I say this, but it looks as though at least Senate Democrats are about to take that public auction off the able. 

Now, remember, President Obama‘s original idea was to have a system in which private insurance would still be able to compete for people‘s dollars, but there would be that public option that would keep the private insurers honest and also would be able to use its bargaining leverage to get low prices from drug companies.  So that was very important.  If you take that public auction off the table, well, you have a variation on the present system.

SCHULTZ:  Well, it‘s still going to be for profit, it sounds like to me. 

On the campaign trail, this was Vice President Biden talking about raising taxes when it comes to health care benefits.  Here it is. 

(BEGIN VIDEO CLIP)

JOSEPH BIDEN, VICE PRESIDENT OF THE UNITED STATES:  Let me tell you something you don‘t know about John McCain and Sarah Palin.  They are proposing the largest tax increase on middle class taxpayers on American history.

John McCain, if I‘ve misstated your position, if you‘re not going to tax health care benefits, please tell me.  Please tell me. 

(END VIDEO CLIP)

SCHULTZ:  Now, what about the Democrats?  Are they now thinking about taxing this benefit?  What do you hear? 

REICH:  Well, yes, the Democrats are looking for ways to fund this new universal health care plan, Ed.  And one of the places—you know, one of the few places where there‘s money left is in terms of actually taxing employer-provided health care, which is now free. 

Now, the Democrats are not saying tax all of it.  The Democrats are now beginning to say, well, why not tax the employer-provided health care that the rich get free, and that would provide enough money to provide universal health care for everybody? 

SCHULTZ:  Mr. Reich, I‘ve said this for a long time, there‘s a tsunami coming in small business in this country.  And we know that next year, more small businesses are going to be eliminating the health care benefit as a benefit of the workplace. 

Now, with that, how can they take the public auction off the table?  Because it seems to me there‘s going to be a heck of a lot more people that are going to want to go into that. 

REICH:  Yes.  Ed, look, the insurance companies, big pharma, they are putting enormous pressure right now on Congress, on the Senate, and their big campaign contributors.  It is very important that people understand that public option is the centerpiece of the entire plan. 

If it‘s taken off the table, there is just not going to be any real cost saving.  There‘s not going to be really any opportunity for average Americans to get good deals with regard to health care. 

SCHULTZ:  And what about—I‘ve got to ask you this, being the former labor secretary.  Here we are 100 days since the stimulus package has been passed.  What‘s the report card, in your opinion? 

REICH:  Well, I would say—I would give it kind of a B minus.  Much of that stimulus plan has really not taken effect yet.  We already knew that it would take time. 

About 20 percent of it is out there.  It is starting to work.  It‘s starting to turn the economy around a little bit. 

It‘s like a time release cold capsule.  Much of it is going to be released over the next six months, and I think that‘s a good thing.  Everybody knew that it was going to take some time. 

SCHULTZ:  Well, I think the country is looking for some instant relief, but I agree with you, it‘s in the B area.  I don‘t think they‘ve gotten the money out fast enough. 

Mr. Reich, thanks so much for joining us tonight. 

REICH:  Thanks, Ed. 

SCHULTZ:  Next on THE ED SHOW, “Psycho Talk.” 

The conservative attack machine is after Sonia Sotomayor.  They just can‘t stand judges who have empathy. 

Oh, really?  Guess which arch conservative judge/justice was also described that way? 

That‘s next on “Psycho Talk.”  Stay with us. 

(COMMERCIAL BREAK)

SCHULTZ:  Welcome back to THE ED SHOW.

Have you heard some of the crazy things that are being said by conservatives?

You got it, it‘s time for “Psycho Talk.” 

In the “Psycho Talk” zone tonight, the entire GOP. 

It seems that the Republican Party has selective amnesia.  Earlier this month, President Obama announced he viewed the quality of empathy as something that he would seek in a Supreme Court nominee. 

(BEGIN VIDEO CLIP)

BARACK H. OBAMA, PRESIDENT OF THE UNITED STATES:  I view that quality of empathy as an essential ingredient for arriving at just decisions and outcomes. 

MARY MATALIN, REPUBLICAN STRATEGIST:  This empathy quotient is code word for jurisprudential social engineering.

UNIDENTIFIED MALE:  Empathy for the little guy, but the law may not be on his side.

SEN. ORRIN HATCH ®, UTAH:  A judge has to be a person of empathy. 

What does that mean?  Usually that‘s a code word for an activist judge. 

SEN. MITCH MCCONNELL ®, MINORITY LEADER:  Picking judges based upon his or her perceived sympathy...

MICHAEL STEELE, RNC CHAIRMAN:  Crazy nonsense empathetic.  I‘ll give you empathy.  Empathize right on your behind.  It‘s crazy. 

UNIDENTIFIED MALE:  ... to appoint someone who has empathy...

UNIDENTIFIED MALE:  Justice is not about empathy. 

GLENN BECK, FOX NEWS:  Empathy leads you to very bad decisions. 

(END VIDEO CLIP)

SCHULTZ:  I tell you what, they got it all down, don‘t they?  Empathy is bad. 

Let‘s flash back to 1991.  Let‘s listen to President George H. W. Bush announce his nomination of Clarence Thomas to the Supreme Court. 

(BEGIN VIDEO CLIP)

GEORGE H. W. BUSH, FMR. PRESIDENT OF THE UNITED STATES:  I have followed this man‘s career for some time, and he has excelled in everything that he has attempted.  He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor. 

(END VIDEO CLIP)

SCHULTZ:  Great empathy.  That is how Bush 41 sold his nominee to the public. 

Now, Clarence Thomas is a person who has great empathy.  That‘s what George H. W. Bush said.  Now, of course, the Thomas confirmation hearings caused a major controversy, but that was not because Democrats decided to declare war on his empathy.

Once again, Republicans have no argument.  And I can tell you, selective memory can get you right into the “Psycho Talk” zone.

(COMMERCIAL BREAK)

SCHULTZ:  Welcome back to THE ED SHOW.  Big questions on the minds of a lot of liberals, will Arlen Specter face a challenger from the left in the state of Pennsylvania for the primary?  Tonight, we may have an answer for you.  Joining me now is Congressman Joe Sestak of Pennsylvania.  Joe, there is a lot of traffic out there, a lot of conversation that you‘re going to jump in this thing and challenger Mr. Specter in Pennsylvania.  Tell us tonight, is that true or false?  

REP. JOE SESTAK (D), PENNSYLVANIA:  Ed, thanks for letting me back aboard.  Ed, I kept my word after weeks ago coming on yours and other shows, and said, I don‘t understand why the political establishment in Washington, DC did an anointment of Arlen Specter.  I don‘t know if that‘s best for us in Pennsylvania. 

And so I spent the last few weeks listening and actually deeply thinking about it.  And, frankly, yes, Ed, my intentions are to get in this race, pending a final family decision.  And I say that because what I decided to get in against after leaving the Navy after 31 years—it became a very serious family decision, because actually my daughter, after her brain operation, that I wanted to pay back.  And I decided to get into politics. 

We made that as a family nucleus.  I‘m going to make that decision here in the not too distant future, because I want it to be our decision, all three of us.  That‘s where I am right now.

Ed, everywhere I went I heard two things.  Either Joe, get in or Joe, you know, he‘s got money and he‘s got connections.  That ladder actually moved me more into this race, because that isn‘t how we should determine who our representatives are. 

SCHULTZ:  Congressman, you‘re telling us tonight that you personally want to challenge Arlen Specter.  You‘re just waiting for the family to get on board? 

SESTAK:  I would like to put it this way.  I‘ve kept up a running conversation with them.  I want to make sure we‘re all comfortable on this, because it‘s going to be a deployment, just like in the military.  But it‘s a deployment for her, my daughter‘s future, as well as all of the other Pennsylvanians.  But it‘s going to be a deployment.  I want to make sure we‘re all together on this one, yes.

SCHULTZ:  I will take it so far to say that I know a lot of military families.  And when there‘s a deployment, the family is on board and you‘re the boss here.  You‘re the former admiral.  They know.  So I will draw the conclusion that you‘re going to run tonight.  You‘re just not going to confirm it on THE ED SHOW.  You‘re going to challenge Arlen Specter.  That‘s how I‘m taking this. 

SESTAK:  And, Ed, this is only for one thing.  I mean, I got into the Navy back—and joined up in 1970 during the Vietnam War, because there was a sense of service.  And I want to do this because we feel the same way.  It is very important to me. 

SCHULTZ:  Congressman, do you think Pennsylvanians want Arlen Specter to be challenged for this Senate seat? 

SESTAK:  What I know is this: they want a future, Ed, where everybody has an economic opportunity, where everybody is covered in health care in an affordable way, where everybody has an educational opportunity, and we‘re not dependent on foreign oil. 

SCHULTZ:  When are you going to make this decision?  What‘s the time frame here for a full fledged I am going to challenge Arlen Specter in the primary? 

SESTAK:  A not too distant in the future.  Because I think it‘s going to be a very interesting campaign.  The debate of ideas should be out there in the forefront of what‘s the right issues.  I‘d like to get out there relatively soon, in the not too distant future.  I would say it‘s going to be a few weeks, but it‘s going to be out there because I really do think this is the most important time since the World War II, the Great Depression, in the history of our nation, certainly Pennsylvania, for the next four to six years, of how we retool our future. 

SCHULTZ:  OK, you‘re going to make the official announcement on THE ED SHOW.  I have to ask for the order here. 

SESTAK:  Ed, I don‘t—I‘m going to go to my daughter‘s grade school. 

SCHULTZ:  Admiral, I love competition.  I don‘t like people that feel entitled that walk right into things.  I know that the Democratic base in this country is very concerned about his loyalty to the Democratic agenda.  And I‘d like to see you challenge him.  I‘d love to have you come back and tell us what you‘re going to do. 

SESTAK:  Thank you, Ed.  And I think that issue about we don‘t have kings or king makers here in America is something that has so strongly moved me. 

SCHULTZ:  Congressman, great to have you with us tonight.

SESTAK:  Thanks, Ed, very much.

SCHULTZ:  Thank you so much.  I hope he does it, folks.  And I really feel strong about that.  I don‘t think just because Arlen Specter has been around for a long time that he should be entitled to walk right in to this seat and change parties like that.  Competition brings the best out in people. 

Not so the best out—coming out in the last 35 hours as President Obama nominated her as a Supreme Court justice.  But Sonia Sotomayor is already facing an onslaught of attacks from conservatives.  She‘s being tagged as an activist judge.  Now, that‘s a standard conservative line of criticism.

Then there are truly crazy attacks out there, like the claim that she‘s a racist.  Tom Tancredo made that charge on this show last night.  Rush said it.  And today, former Speaker of the House Newt Gingrich Twittered.  He Twittered this: “a white man racist nominee would be forced to withdraw.  A Latina woman racist should also withdraw.” 

Joining me now is Michael Scherer, “Time Magazine” Washington correspondent.  Michael, good to have you on tonight.  From that Twittering that Newt Gingrich did, it seems to me that he has already made the case and has already decided that Sonia Sotomayor is a racist. 

MICHAEL SCHERER, “TIME MAGAZINE”:  You know, what amazes me about that is that Newt is generally a political savvy political mind.  He knows the poll numbers.  He knows which way the demographic winds are blowing.  And if the Democratic party is going to hide behind this gender identity, racial identity, the ethnic identity argument, they are going to do themselves an enormous amount of damage, because all signs are that Sotomayor is still going to be able to become a Supreme Court justice.  And you have these demographic winds that are really blowing against the Republicans right now. 

In the last election, we had 7.5 percent of people casting votes were Hispanic.  Just 1988, it was 3.5 percent.  You have 25 percent of the people voting in the last election were of black, Asian, or Hispanic. 

SCHULTZ:  Michael, this is not just some talking head making this comment.  This is the former speaker of the House, who seems to be able to go out and get all of the air time he wants on the top-rated news shows across the board.  Whenever he wants to get on, he gets on.  He is claiming that she‘s a racist.  Doesn‘t this take it to a whole new level? 

SCHERER:  And isn‘t it striking also that the people who are making this claim are generally the people who are out of office.  It‘s the Tom Tancredo‘s, who are not in an elected position, Newt Gingrich, Rush Limbaugh.  The people who are in office, who know the political realities, are more or less silent at this point.  You have some squeaks coming out of House Republicans, but they know the danger they‘re getting into if this becomes the debate. 

If it‘s a debate over whether she‘s an activist judge, her legal philosophy, then it‘s a debate that can be had.  But if they‘re going in this direction, they‘re going to be in trouble.

SCHULTZ:  All right.  We‘ve got Tancredo out there.  We‘ve got the former speaker, Gingrich, out there.  You‘re got Limbaugh out there.  When are elected going to get behind this kind of rhetoric?  Do you anticipate that happening? 

SCHERER:  You know, I think for the most part they won‘t.  And the real issue here is are you going to try to go just to rally your base, essentially a white male base, or are you going to be thinking about the next election, which white males are not going to win it for the Republican party. 

So right now the strategy on the Hill for both the Senate and the House Republicans is to not come out with any inflammatory statements right away, say we‘re going to have to take a close look at her record, and then build a case against her over the next two or three months.  We‘ve got some time for this to wind itself out. 

SCHULTZ:  Michael Scherer, good to have you with us tonight. 

SCHERER:  Thank you. 

SCHULTZ:  Thanks for being on THE ED SHOW.

For more, let me turn to our panel tonight, Laura Flanders, host of GritTV.org, Sam Stein, political reporter for the “Huffington Post,” and Michael Medved, nationally syndicated talk show host, and author of the book, “The Ten Big Lies About America.”

Laura, this is a new level of discourse coming from the former speaker? 

LAURA FLANDERS, GRITTV.ORG:  It‘s kind of the old level of discourse.  But, you know, I feel like last week it was Dick Cheney.  This week, it‘s Newt Gingrich.  Why are we listening to this guy? 

Frankly, if the Democrats are looking at the Republicans right now and saying, wow, the Republicans are going to go for former Congressman Tancredo, former House Leader Speaker Newt Gingrich, and Rush Limbaugh, and we‘ve got the pride of the Cardinal Spellman High on the Bronx on our side, let them go for it.  Go for it, Republicans. 

SCHULTZ:  Michael Medved, as a conservative talker, are you ready to say that the nominee is a racist based on the things that have been said and based on the things that they are quoting?  What‘s your take on it? 

MICHAEL MEDVED, RADIO TALK SHOW HOST:  Absolutely not.  I think that‘s premature and it‘s way overstated.  And it is, as you rightly said, politically shooting yourself not in the foot, but shooting yourself in the mouth. 

The real thing here is to ask tough questions for Judge Sotomayor. 

SCHULTZ:  I agree. 

MEDVED:  I‘ve listened to the entire speech she gave in October 26th, 2001.  It‘s a disturbing speech.  She says there are inherent physiological differences between Latinos and others.  I‘d like her to explain that.  Does she really believe that there are inherent physiological and cultural differences that will impact her as a justice?  What are those differences?  How will she see judgment differently because she‘s Latina? 

I think asking that kind of question is entirely legitimate and, in fact, necessary. 

SCHULTZ:  Michael, I give you credit.  You‘re the first conservative I‘ve heard that will come out and actually pointed to something that you are troubled by.  And I congratulate you, because I think there‘s just an awful lot of garbage that‘s being thrown around right now. 

Sam Stein, what is the mission of Newt Gingrich to talk like this? 

SAM STEIN, “HUFFINGTON POST”:  I don‘t know, to grab headlines, I guess.  I agree with Michael.  I think it‘s damaging for the party.  I don‘t think it bodes well for the outreach to the Hispanic community. 

I think—not to read into Judge Sotomayor‘s mind a little bit too much, but to say you‘ve been affected by the community you grew up in and the people that surround you, isn‘t that crazy a point to make.  Glen Greenwald of “Salon” made note that in his testimony, Samuel Alito talked about how being a descendent of immigrants, ancestors, that is, affected how he would handle cases on immigration.  He said he would abide by the law, but it would be foolish for him to not acknowledge that certainly it had an affect on his psyche.  

I think that‘s pretty much what she was getting at, albeit in a poorly formed rhetorical way.

SCHULTZ:  All right.  Let‘s talk about the Second Amendment.  Michael, do you view the conservatives coming after her on the Second Amendment?  Eventually the NRA is going to be jumping into this?  What do you think? 

MEDVED:  I don‘t think so.  Look, what you have right here is there a different priority for people who are elected representatives who have to run for office, as you were talking about before, and some of these activists organization, that have the main priority as raising money.  I think it‘s a crime, frankly—and I‘ve said so on the air, Ed, it‘s a crime for conservatives who know very well she‘s going to be confirmed—she‘s going to be the next associate justice of the Supreme Court—to be trying to raise money based an all assault on Sonia Sotomayor. 

It only undermines what conservatives should be doing, which is raising some of the legitimate issues about the Constitution and talking about them in a civil way. 

FLANDERS:  Michael, I really hope that you tomorrow on your radio show play the entire speech, not just a few sentences from it. 

MEDVED:  I have.  I‘ve done that.

FLANDERS:  We want to hear the whole thing.  And it wasn‘t—Sam is absolutely right.  When Condoleezza Rice was up for confirmation, when Elaine Chow was up for confirmation, they all told their stories.  They all said it enriched their expertise, enriched their expertise.  That‘s nothing more or less than what Sotomayor is saying. 

MEDVED:  It is something very different.

SCHULTZ:  Next up, could the Iraq War last longer than Vietnam?  The Pentagon says combat troops could be there for ten more years.  Withdrawal in 2019?  That‘s not the change I think we voted for.  We‘ll talk about it next on THE ED SHOW.  Stay with us.

(COMMERCIAL BREAK)

SCHULTZ:  Time for the playbook tonight.  A lot of numbers and a lot of issues.  Top U.S. Army officer said yesterday the Pentagon is prepared to leave U.S. troops in Iraq for ten years.  The Army Chief of Staff General George Casey spoke in Washington.  He said they are planning for extended U.S. combat operations in two wars. 

Now, remember, President Obama has said that he plans to bring the US combat forces home from Iraq by 2010.  The US and Iraq have also agreed that all American forces would leave by 2012.

I don‘t know about you, but I think this is the biggest mixed signal that we‘ve gotten so far.  President Obama didn‘t say anything about having a footprint in Iraq for a decade beyond his presidency.  Can we get some definition about what we‘re looking at for the next ten years?  The American people deserve some definition of this. 

Joining me now is Paul Rieckhoff, who is the founder of the Iraq and Afghanistan Veterans of America.  Mixed signal?  What do you think, Paul? 

PAUL RIECKHOFF, IRAQ AND AFGHANISTAN VETERANS OF AMERICA:  I think you‘ve got a mixed signal because you‘ve got really two leadership groups here.  You have the political leadership coming out of the White House, and you have the military leadership.  General Casey is going to plan for the most dangerous course of action, the worst case scenario. 

As a military planner, he‘s got to prepare for the scenario that we could be there for decades.  He‘s got to think about how to stretch our troops out, how to deal with multiple deployments, how to use the National Guard and reserve. 

So I think they‘ve got to get on the same page as far as their communication effort.  I know that parallel planning, they‘re planning for different things. 

SCHULTZ:  But he really didn‘t even qualify that.  He just said, we‘re going to be here for ten years.  We‘re planning to be here for ten years.  I thought they were planning to withdraw in 2010, and totally in 2012. 

RIECKHOFF:  That‘s definitely the message coming out of the White House.  I‘m sure General Casey is going to get a phone call from the president or someone else, the chairman of the Joint Chiefs, just to get everybody on the same page here. 

But I think there‘s a larger question about expectations.  The same is true in Afghanistan.  I think the president needs to provide more clarity on what our objectives are, how long we‘re going to be there and what the American people need to plan for.  That‘s the problem we had with President Bush.  We don‘t want to repeat that mistake now with President Obama.

SCHULTZ:  I want to compliment you and your organization, IAVA.  You have done awesome things for veterans.  But the numbers are still very staggering.  We‘ve got 338,000, or one in five, when it comes to post traumatic stress disorder, and only 53 percent of them are seeking help.  I mean, this is a heavy lift to help these guys.  Are we doing enough?   

RIECKHOFF:  No, we‘re not doing enough.  Huge challenge here, Ed.  We‘re dealing with a generation of folks who have served time and time again.  We need to give them more resources, support their families better.  Today, Fort Campbell was stood down for three days.  The commanding general there announced they‘re going to take everybody on the base offline for three days, do suicide prevention counseling.  That‘s necessary. 

For a while at Fort Campbell, they were averaging one suicide a week. 

In January, we lost more soldiers to suicide than we did to al Qaeda. 

SCHULTZ:  Why? 

RIECKHOFF:  The repeated deployments are a huge problem.  Inadequate medical screening or not screening folks for mental health issues before they go.  And we don‘t have enough psychologists.  We don‘t have enough psychiatrists, psychologists. 

SCHULTZ:  What‘s the solution?

RIECKHOFF:  Mandatory mental health screening across the board; that means to happen immediately.  The president needs to issue a national call for qualified mental health professionals, and we need to slow down these deployments.  Whether it‘s increasing the size of the military or finding a way to bring them back, you can‘t send folks back for five and six tours without showing signs of cracking.

SCHULTZ:  Do we have resources to do both fronts? 

RIECKHOFF:  Not at this pace.  We can do it.  You can theoretically send soldiers back for 10th and 11th tours, but you‘re going to see breakdowns in morale.  You‘re going to see break downs in effectiveness.  The equipment starts to breakdown. 

And there‘s a moral question here.  What are we asking our folks to do?  It‘s an issue of fairness.  How do we get the rest of the American public involved.  And how do we relieve that stress?

SCHULTZ:  One hundred thirty nine thousand troops in Iraq, 52,000 troops in Afghanistan, and I don‘t see any reduction in force. 

RIECKHOFF:  No.  It‘s a huge challenge and we need to stay focused on it, despite the economy and everything else. 

SCHULTZ:  You‘re a good man. 

RIECKHOFF:  Thank you, Ed.  I appreciate all the support. 

SCHULTZ:  Good to have you with us, my man.  This guy is a true, real, great American, Paul Rieckhoff. 

Coming up, the controversy in California over gay marriage.  Two unlikely allies team up for a case that, if successful, would make same-sex marriage legal in America, flat out.  That‘s coming up next on THE ED SHOW.  Stay with us. 

(COMMERCIAL BREAK)

SCHULTZ:  Welcome back to THE ED SHOW.  Today, lawyers who went head to head in one of the most famous cases in history—you remember, Bush versus Gore—They joined forces today for equality. 

(BEGIN VIDEO CLIP)

TED OLSEN, FMR. BUSH LAWYER:  Yesterday, the California Supreme Court said that Proposition 8 makes it OK for gay men and lesbians to be our neighbors, our friends, our doctors, our lawyers, our parents, our children, our brothers, and our sisters, but they can‘t get married. 

DAVID BOIES, FMR. GORE LAWYER:  Republican, Democrats, conservatives and liberals all recognize the importance of the equal rights guarantee by the Constitution. 

(END VIDEO CLIP)

SCHULTZ:  So are the federal courts the best way to work towards marriage equality?  Joining me now is Mike Roger, BlogActive.com.  Mike, good to have you with us tonight.  What‘s your take on these two former adversaries teaming up and saying the same thing? 

MIKE ROGERS, COMMENTATOR:  Well, I‘ll tell you that I always am a little questionable about what Ted Olsen is up to, but I think overall the signal—we learned last time.  I think the signal is so strong and it‘s showing the American people that, in fact, it‘s not a conservative or liberal value. 

Conservatives say, stay out of our lives, and that‘s exactly what we‘re looking for here.  Liberals want nurturing families, and progressive values, and that‘s what we‘re looking at here.  I think, over time, we will absolutely win this case. 

In the meantime, I think what we need to do is continue to press on in the states and continue to educate. 

SCHULTZ:  And what‘s the next step in California?  I talked to Gavin Newsom today, mayor of San Francisco.  He‘s got this petition going.  Is it going to be back on the ballot soon? 

ROGERS:  I think that it will be in either 2010 or 2012.  I‘m actually looking forward to it, because, as we heard over the past year, this whole line about the will of the people, the people have spoken—so when a few votes flip, I‘m going to be excited about the will of the people and agree with conservatives who say now the will of the people have spoken. 

I think what we‘re seeing is that more and more young people, over 70 percent of Evangelical kids support the rights of gay people to get married.  I think we‘re clearly on the path to victory here.

SCHULTZ:  Mike, what do you expect out of President Obama on this issue? 

ROGERS:  Well, I don‘t know if you‘ve heard some of the daily press briefings, but it seems as though it‘s tripping up the administration.  The administration needs to stand up and put themselves on record where they are with regards to rights for the gay and lesbian, bi and trans community.  And until they do that, people will be pressuring them.  Tonight, Obama is facing the protests from the gay community in Beverly Hills. 

SCHULTZ:  Yes, he is. 

Mike, good to have you on with us tonight.  He is correct.  Mike Rogers with BlogActive. 

Tonight, President Obama headlines a Democratic party fund-raiser in Beverly Hills.  And gay advocacy groups who want the president to keep his promise will be there on hand, and expect the president to look at the petition that‘s got 147,000 signatures calling for a repeal of Don‘t Ask, Don‘t Tell.  Remember what White House Press Secretary Robert Gibbs told an online townhall just two weeks before Obama became president. 

(BEGIN VIDEO CLIP)

ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY:  Thaddeus from Lansing, Michigan asks: is the new administration going to get rid of the Don‘t Ask, Don‘t Tell policy? 

Thaddeus, you don‘t hear a politician give a one-word answer much, but it‘s yes. 

(END VIDEO CLIP)

SCHULTZ:  Time to bring back our political panel tonight. Laura Flanders, Sam Stein and Michael Medved.  Laura‘s what‘s the president‘s move on this?  Is he backing off or what?

FLANDERS:  He‘s going to have to move, because yesterday was a very paradoxical day.  It was moving what he said about the Sotomayor appointment, that when she rises up those marble steps of the Supreme Court, the country will have moved one step closer to realizing the ideals etched above those stairs.  And those ideals are equal justice under the law. 

And there‘s simply no way to swing it.  You‘re either an equal or you‘re not.  There is justice that balances or it doesn‘t.  We took a step in one direction on the court appointment and another direction, backwards, in California.  He‘s got to step up to the plate.

SCHULTZ:  If it goes to the federal courts, and she is confirmed to the Supreme Court, Sam Stein, where do you think Judge Sotomayor would come down on this? 

STEIN:  Well, actually, that‘s one of the questionable aspects of her resume.  The Human Rights Campaign actually applauded her for her stances on gay rights, but there isn‘t much there in terms of the decisions she‘s come down upon. 

I think Obama doesn‘t want to have to deal with a contentious issue right now.  It probably will be sort of pulled in the direction over time.

And I have to add, it is—seeing Ted Olsen up there, this is, in fact, a conservative value point.  Steve Schmidt stressed the same thing when he spoke in front of the Log Cabin Republicans.  So I think over time it will become more political palatable for the Obama administration to actually come out in support of gay rights initiatives.

SCHULTZ:  Michael Medved, your take on this.

MEDVED:  I don‘t believe it‘s a conservative value at all.  The conservative value is not to sanction a huge expansion of government.  Right now, the government‘s position regarding homosexual relationships is what it should be, which is strict neutrality, don‘t promote and don‘t exhibit.  The idea of expanding government sponsorship of a whole class of relationship, not individuals—what Laura is talking about equality, all individuals are, in fact, equal.  Not all relationships are equal.  And the law recognizes, and has always recognized that it‘s part of the job of our elected representatives to discriminate, yes, among different kinds of relationships that deserve different kinds of sanctions. 

FLANDERS:  It‘s not a relationship when you‘re at the situation.  I don‘t personally believe that one should have to get married to have health care.  But you can, at this point, in this country, be discriminated against on the basis of your sexuality.  You can lose your job.  You can lose your health care.  You can be denied access to visit your loved one in a jail or—

MEDVED:  Now you‘re talking about another issue.  You‘re talking about the Employment Non-Discrimination Act. 

FLANDERS:  I‘m glad we have your endorsement on ENDA.  I‘ll go out and publicize that fact.

SCHULTZ:  And quickly, Sam Stein, is this going to be a real political football for the White House, after making a very definitive statement before the election? 

STEIN:  Again, it‘s to be seen.  They have been so quiet over it.  When asked in the past few days at the daily briefing, you get the sense that they just don‘t want to talk about it.  My indication is that they want to do the heavy lifting with health care, with Iraq, with the economy.  And then, finally, get to the small—to the matters of Don‘t Ask, Don‘t Tell, gay rights. 

But, yes. 

SCHULTZ:  Sam, Michael, and Laura, thanks for joining us.  That‘s THE ED SHOW.  I‘m Ed Schultz.  Always hot conversation in this segment.  You can e-mail us at WeGotEd.com.  Coming up next on MSNBC, the man, Chris Matthews on HARDBALL.

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