And this question only becomes more important as three Justices draw closer to retirement age and the possibility that California's Proposition 8 heads to the Supreme Court.
Jockeying for right wing support, Mitt Romney this week signaled that he'll toe the ideological line by assembling a group of judicial advisers that includes reliably conservative former judge Robert Bork and George W. Bush's former ambassador to the Vatican, Mary Ann Glendon, a fierce anti-abortion activist.
Most of the other Republican candidates, meanwhile, have made it clear at some point or another that they oppose "activist judges" who could rule in favor of LGBT and other progressive rights. Those candidates, without a shred of irony, also vow to install their own reliably conservative judges.
And President Obama's judicial leanings are also getting attention, especially since he recently nominated his fourth openly gay federal judge.
Though only 97 of the president's nominees have been confirmed — far less that Bush and Clinton's respective total two-term confirmations, 322 and 372 – his roster is still the most diverse in terms of race, gender and sexuality. This, of course, sets the stage for right-wing calls of preferential treatment.
"The more you focus on race and gender, the less you’re going to focus on other traditional qualifications — that’s simply the math of it," Curt A. Levey, head of the conservative Committee for Justice, said in today's New York Times.
He went on, echoing 90s-era arguments about affirmative action: "If you believe in proportionalism, as the Obama administration appears to, given the way they tout these numbers, the other races are, to some degree, getting stiffed.”
The White House, however, insists Obama looks for nominees who reflect the nation and know the law.
"The president wants the federal courts to look like America. He wants people who are coming to court to feel like it’s their court as well," said White House counsel Kathryn Ruemmler, before explaining, "It’s not just about race, it’s not just about gender, it’s not just about experience. We try to look at judges in a much more holistic way.”
As the 2012 race picks up pace, prepare to hear this debate about judicial diversity and alleged activism reach a fever pitch.