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.

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.

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.

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.

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.

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.