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.

If that were a winning argument, Donald Trump could get anybody off the bench on his cases by just something deeply offensive based on their background.

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.

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.

Individuals because of their identity can't render an impartial judgment is just deeply offensive and contrary to all the ideals of the judicial system that we value.

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.”

You can understand why the original framers of judicial ethics thought it would be undignified and would call into question the legitimacy of the judicial decision-making process to have mudslinging by judges, but the way that we hobble people of enormous integrity from defending themselves is, I think, deeply problematic in states where you have an elected judiciary, or a judge is subject to recall.