Excerpt from an interesting essay in The New York Times on the dynamic differences between liberal and so-called conservative judges:

" As James Madison observed, in a democratic society "the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended ... from acts in which the government is the mere instrument of the major number of the constituents." It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as "an impenetrable bulwark" against every encroachment upon our most cherished freedoms.

Conservative judges often stand this idea on its head. As the list of rulings above shows, they tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society. They employ judicial review to protect the powerful rather than the powerless.

Liberal judges, on the other hand, have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority. Liberal judges have ended racial segregation, recognized the principle of "one person, one vote," prohibited censorship of the Pentagon Papers and upheld the right to due process, even at Guantánamo Bay. This approach to judicial review fits much more naturally with the concerns and intentions of people like Madison who forged the American constitutional system.

Should "empathy" enter into this process? In the days before he nominated Sonia Sotomayor to the Supreme Court, President Obama was criticized by conservatives for suggesting that a sense of empathy might make for a better judge.

But the president was correct. If all judges did was umpire, then judicial empathy would be irrelevant. In baseball, we wouldn't want an umpire to say a ball was a strike just because he felt empathy for the pitcher. But once you understand that the umpire analogy is absurd, it's evident that a sense of empathy can, in fact, help judges fulfill their responsibilities — in at least two ways.

First, empathy helps judges understand the aspirations of the framers, who were themselves determined to protect the rights of political, religious, racial and other minorities. Second, it helps judges understand the effects of the law on the real world. Think of judicial decisions that have invalidated laws prohibiting interracial marriage, granted hearings to welfare recipients before their benefits could be terminated, forbidden forced sterilization of people accused of crime, protected the rights of political dissenters and members of minority religious faiths, guaranteed a right to counsel for indigent defendants and invalidated laws denying women equal rights under the law. In each of these situations, in order to give full and proper meaning to the Constitution it was necessary and appropriate for the justices to comprehend the effect that the laws under consideration had, or could have, on the lives of real people. "