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

romantics. 



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