Washington.--Peter Edelman is for President Clinton one debacle that need not happen. The 1994 elections made inevitable many 1995 conflicts with Capitol Hill, but the elections also will have prevented one if because of them Clinton decides not to nominate Mr. Edelman, a Georgetown University law professor, to the U.S. Court of Appeals for the District of Columbia. That is the court from which one-third of today's Supreme Court (Justices Scalia, Thomas and Ginsburg) came.
President Clinton purportedly was startled to learn, rather late, the contents of Lani Guinier's writings. He should hasten to read Mr. Edelman's 61-page essay in the November 1987 Hastings Law Journal, "The Next Century of Our Constitution: Rethinking Our Duty to the Poor." It demonstrates an impatience with representative government that is tinged with contempt for it.
While conceding that the Framers intended nothing of the sort, Mr. Edelman asserts that there now is a "constitutional right to some form of minimum income." Such a right has been "implicit" in the Constitution at least since America has been sufficiently affluent to share wealth "more equitably." Refusal to do such sharing constitutes a violation of constitutionally guaranteed "due process of law."
Mr. Edelman's second argument is that government's "historic and continuing complicity" in economic arrangements that result in severe "maldistribution" constitutes a violation of the constitutional guarantee of "equal protection of the laws."
In the 1930s the Supreme Court dropped many of its constitutional objections to congressional measures to alleviate economic hardships. Now, the professor says, is the time for "a new remedial thrust" whereby the court compels Congress to end the economic "victimization" that government causes. It is time, he says with Caesaristic verve, to cross "the Rubicon." He would use judicial fiats to remedy the myriad injustices that he says government has created or negligently failed to correct.
Mr. Edelman says that by large actions (creating the legal and social infrastructure of a market economy) and small ones (bad child care, bad schools, bad fiscal and monetary policies, etc.) government has "created conditions" in which some people "prosper mightily" and others are in "absolute deprivation." The gravamen of his argument is this: Because government sustains society, government is responsible for all social outcomes, and is guilty of denying "equal protection" when the outcomes include severe inequality.
One result of this argument is the obliteration of the very concept of privacy: All of life is permeated by government action, therefore all of life is government's responsibility. Another result is an unlimited license for the judiciary to disregard the results of representative government. Professor Edelman's argument, at once childishly naive and breathtakingly arrogant, is: We know how government could end severe deprivation, but government
is beholden to a benighted public, so the Supreme Court must order Congress to take remedial measures that lack public support.
America's political discourse has been made shrill by the practice of couching every policy preference in the aggressive language of rights, such as the "right" to health care. Mr. Edelman's trump is to cloak his agenda in the raiment of constitutional rights, thereby attaching spurious dignity to his political desires.
In the 1930s, he says, the Supreme Court "bet" that Congress, unleashed, would do the right thing. Congress didn't, so the court must do it, for the same reason prison officials must protect prisoners from violence. Regarding very poor people, says Professor Edelman, America is akin to "the jailer who stands by and lets the attack proceed."
Here, then, is contemporary liberalism in crystalline clarity: American society is savagely unjust; it is so because the majority, which has the knowledge and means to make things right, will not; therefore the majority is immoral; therefore majority rule is immoral and rule by an enlightened judiciary is obligatory.
President Clinton must know that a Republican-controlled Senate certainly would not confirm Mr. Edelman without a fierce, protracted fight over this catechism: "constitutional" is a synonym for "just"; what is just is whatever is on the liberal agenda of the moment; the Supreme Court must mandate justice.
"I would find it most irksome," wrote Learned Hand, a practitioner of judicial restraint, "to be ruled by a bevy of Platonic Guardians." Edelman thinks that would be dandy. His zest for judicial decrees to supplement or even supplant legislative policy-making, and his corollary contempt for representative institutions, makes him an exemplar of contemporary American authoritarianism. Surely the president does not want to invest his depleted prestige in defense of that.
George F. Will is a syndicated columnist.