ON SOCIETY - By JOHN LEO -When judges feel romantic
by U.S. News

Mary Ann Glendon, a professor at Harvard Law School, has a nice
image of what much modern Adjudging has come to: a baseball game
in which the umpire abandons neutrality and decides to play for
one team.
Peter Edelman is surely an example of what she means.  Edelman, a
former Georgetown University law professor and husband of Marian
Wright Edelman of the Children's Defense Fund, is reported to be
President Clinton's choice to fill a vacancy on the
U.S. Court of Appeals for the District of Columbia.  Because of
the dark cloud over the White House since the November elections,
the controversial Edelman may not, in fact, be named.  Even if he
isn't, he will certainly do as horrible example of what is
descending upon our judiciary.
Edelman thinks the poor right not to be poor -America enough to
give every needy cash payments equal to two thirds of the poverty
line, plus housing subsidies, food stamps, Medicaid and other
subsidies.  There's nothing wrong, of course, with holding such
views.  A lot of people think cash is better than welfare, and a
lot of people are unconcerned about the increased dependency and
alienation from the force that such handouts might bring.
The problem is that Edelman doesn't really think these views are
the normal, debatable stuff of democratic politics.  He thinks
they should be imposed by judges, because not giving substantial
cash payments to the poor is unconstitutional, a violation of due
process.  Nobody else seems to have noticed this in the
Constitution.  As an appeals judge,
he would be an umpire who knows, before the first pitch is
thrown, how this particular game should turn out.
Do-gooding.  In her new book, A Nation Under Lawyers, Glendon
calls this "romantic judging," an adventurous, freewheeling
approach by reformers who passionately wish to do good and who do
not intend to let tradition, law, precedents or nonromantic
readings of the Constitution get in the way.
She writes that the classical ideal of modesty, impartiality and
restraint "has been rivaled by an image of the good judge as
bold, creative, compassionate, result-oriented and liberated from
legal technicalities."
Glendon thinks Brown v. Board of Education ushered in the great
modern age of romantic judging.  This is a hard argument to make,
since Glendon, like almost everyone else, thinks Brown was
correctly decided-segregated schools were a massive injustice. 
But Brown changed our legal culture.  It got law students excited
about using the clean and quick route of litigation to get social
change.  Many lawyers and nonlawyers came to believe that judges
could cure our social ills.
"Many unwise judges down the line began to believe they had the
magic touch," Glendon writes.  "Interest groups of many sorts
seized the opportunity to advance their causes by taking them to
the courts rather than to the people.  The litigating branch of
the legal profession was off to the races."
Romantics learned to cite "due process" and "equal protection" to
justify almost any preconceived result.  State supreme courts
followed the trend, multiplying rights-based decisions and
pushing legislatures aside.  Glendon notes that federal and state
judges now oversee 500 school districts and supervise prisons in
40 states.
Instead of being accepted as a justified exception, Brown came to
be seen as the model of how judges should operate to impose
progressive solutions that legislatures were afraid of or hadn't
gotten around to.
Again, Edelman is a wonderful example of this mentality.  He says
that the courts' power to make law stems from Brown, in which the
Supreme Court undertook the "affirmative duty" vacated by
legislators.  In the Brown case, this was true, but to romantics
such as Edelman, it is a wideopen door that invites judges to
impose their own social agendas.
Roe v. Wade, the court's decision that legalized abortion, is the
most prominent romantic decision of the post-Brown era.  It was
conjured up out of penumbras and shadows, and sternly criticized
by the proabortion rights but nonromantic Ruth Bader Ginsburg
before she ascended to the Supreme Court.
The most celebrated judges of our time have been
romantics-William 0. Douglas, Earl Warren, William Brennan.  How
could it be otherwise?  Today judges don't get to be famous, or
claim a place in history, through restraint and modesty.  They
get there by producing unexpected, breathtaking decisions admired
by the media.  We have created the conditions under which a
judge's place in history will likely hinge on some startling
lurch away from critical but humdrum decision making.
It is the rise of post-Brown romanticism -not the usual
liberal-conservative split -that has made hearings on Supreme
Court nominees so important.  The utter contempt for democracy
shown by some romantic judges is stunning.  Given the current law
school culture, the problem is likely to get worse.  If some
judges are determined to rule like philosopher kings, the only
proper democratic response is to knock them down at nomination
hearings or just vote out the officeholders who tend to nominate

U.S.NEWS & WORLD REPORT, JANUARY 23, 1995 p. 20         

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