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.

I do think the whole question of judicial accountability is a complicated one. On the one hand, you want to encourage judicial independence. And it's always, I think, problematic when an unpopular decision triggers a recall election. Because it sends a disempowering message to judges. On the other hand, it's the only way that voters have to rein in someone whose views are really so out of the mainstream of public opinion that they jeopardize the legitimacy of the judicial process.

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.”

Ironically enough, if the case involves race, and one claims that race is a disqualifying factor, nobody could hear the case. Everybody comes to these cases with some preconceptions, and the premise of our judicial system is that judges by training and by ethical codes are obligated to set those prejudices aside and to decide on the facts and the law. And to claim that somebody can't simply because of their racial identity is deeply offensive.

I personally think that we should be extremely reluctant to use a recall mechanism for an unpopular decision simply because of the message it sends about judicial independence.

Lawyers like to leave no stone unturned, provided they can charge by the stone.

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.