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.

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.

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.

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.

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

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.