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.

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.

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.

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.

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.

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.

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.