07/20/2009 09:01 pm ET Updated May 25, 2011

Republican Senators Play the Affirmative Action Card

If you will pardon the expression, inviting the New Haven firefighters to appear in uniform at the Sotomayor hearing and having Frank Ricci testify was "bush." Judge Sotomayor decided more than 3000 cases. That means that at least 6000 persons or companies were pleased or displeased with her rulings. Having disgruntled persons testify at a judicial confirmation hearing serves no useful purpose. If that is the practice, then the next time the Senate prepares to fold on gun control, the doors to the Senate hearing room should be thrown open to the families of the 30,000 persons who die every year from guns.

No, the real purpose of having the firefighters appear and Mr. Ricci testify was to inflame the public and foment opposition to the nominee on this very controversial topic. Affirmative action cases are very difficult for judges. It may be apocryphal, but it is suggested that when a new judge comes on the court, the current judges instruct the clerk "to let out the dogs". Whether true or not, when I was appointed to the United States District Court, I was assigned all of the affirmative action cases in the 21 major New Jersey cities. I had a case very similar to Judge Sotomayor's instituted by the federal government to set aside a firefighter promotion test because of its disparate impact in cities in which the minorities were in the majority. I don't mean to argue here for or against affirmative action. The point is -- we as judges get it!

In declaring the test invalid, I wrote that the successful candidates and their families must ask "Why us? Their perception of the unfairness visited upon them cannot be dissipated by a discussion of principle or some broad social goal. They cannot be expected to understand why they must sacrifice for what others have wrought or why they should be singled out (to forgo everything they have worked so hard for) no matter how worthy the cause may be".

So it is unfair to condemn judges for their role in these difficult cases and for following the law (at least as it then existed). If the conservatives will forgive us this unpardonable sin, judges, indeed, feel "empathy" for those who are adversely affected by these extremely difficult decisions.