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.

Deborah Rhode

Categorized in : Retirement Special Perspective

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.”

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

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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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If you follow Donald Trump's logic, say that he couldn't decide any civil rights cases because he would be biased.I mean, we do want a diverse and inclusive judiciary - one that looks like the people that they serve. And we do recognize the value of having diverse backgrounds represented.

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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.

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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.

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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.

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