Some folks have been giving Barack Obama a hard time for his claim that the court's should serve as a refuge and defender of the oppressed in America. This, the argue, is politics substituting itself for law. They gleefully point to John McCain's statement on what he's looking for in a judge -- a position that is supposedly non-ideological and apolitical. Conservative judges go where the law takes them. Liberal judges go where they want to go, law be damned.
Tragically, this position is false -- and it's a conservative judge who is pointing it out. Judge Richard Posner, one of the leading conservative jurists in America today (and possibly one of my professors at the U of Chicago) has a new book out, "How Judges Think" which pops the myth that liberal justices are more likely to vote their policy preferences than conservatives. Actually, conservative judges are statistically far more likely to do so, and not only that, the trend line for conservative judges is towards increased politically-based voting, while liberal judges actually have shown a slight decrease in their (already smaller) propensity to vote in accordance with their policy preferences.
Posner thinks the reasoning for this is that, since the Reagan administration, Republicans have relied significantly more on ideological considerations when appointing judges. Liberals, he suggests, are not as organized in demanding that their nominees be ideologically pure and committed. But Brian Tamanaha (with just a hint of snark?) suggests that maybe its just that "Democratic judicial appointees are more committed to respecting and abiding by the law (to restraining the influence of their political views)."
I don't have any problem with the presumption that courts should be defenders of the marginalized. The rights of majorities are less likely to be threatened in democracies, because they're, well, the majority, and as John Hart Ely pointed out so many years ago, majorities aren't likely to discriminate against themselves. It should be expected that the primary function of the courts will be to defend those whose interests are not likely to be defended in the democratic arena. We have for decades held to the principle that these minorities deserve special consideration by the judiciary if their equal status is society is to be maintained. Insofar as conservatives substitute their policy preferences that often counsel against protecting minorities against majorities, they are engaging in an unabashedly political project. And as for their judicial "philosophies" which "force" them into that position, as River Tam would put it, it's not part the philosophy, it's why you chose the philosophy.