There have been so many examples of highly qualified judges of enormous integrity who lost their positions because they were in fact disabled from speaking out to defend a controversial opinion.

The cliché is what are the qualifications for a federal Court of Appeals judge is somebody who knew a senator once. I mean the process of selection is deeply political and yet we expect the result to somehow stand above it.

We don't want to disqualify individuals who are selected partly because they bring that diverse experience to the court in cases where that experience is most likely to make a difference.

There are cases in which somebody has demonstrated just such an outrageous disregard for the bounds of an acceptable decision that you want a measure of accountability.

As Deborah Rhode describes, “When 1,100 Michigan elementary students were asked to describe what life would be like if they were the opposite sex, over 40 percent of the girls saw advantages to being male; they would have better jobs, higher incomes, and more respect. Ninety-five percent of the boys saw no advantage to being female, and a substantial number thought suicide would be preferable.”

There's a sorry history of these kinds of charges of bias being leveled at women and judges of color, and also gay and lesbian judges. The theory being that they're going to be incapable of a disinterested judgment on matters that involve their own identity groups. And it came up famously for Constance Baker Motley who was one of the first African American federal judges in a case involving sex discrimination.

Thurgood Marshall because of his experience of discrimination did bring a special perspective to the court. That’s what his colleagues on the court so valued him for as all the tributes pouring in after his retirement attested.