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Bill Clinton Abandons Peter Edelman Twice
And Edelman resigns in protest of Clinton's welfare reform
Bill Clinton ended up deciding not to nominate Georgetown law professor Peter Edelman to the D.C. Circuit. Some years later, I ran across Lloyd Cutler, the outgoing White House counsel who had informed Edelman that Clinton would nominate him. Cutler was still aghast that Clinton hadn’t followed through. “He [Clinton] had already signed off on the nomination,” Cutler said with exasperation.
Cutler was the epitome of the Washington wise man, but in this instance I think that Clinton’s political instincts were sound. The Republican takeover of the Senate after the 1994 elections transformed the political landscape and gave Clinton ample cause to reconsider whether nominating Edelman was a sensible move. It’s difficult to see how Edelman would have been confirmed. Indeed, my boss Orrin Hatch’s staunch opposition to the nomination means that Edelman would probably not even have received a hearing—unless, that is, Republicans welcomed the political upside of an open confirmation battle on the nomination.
In his long interview in 2004 on Clinton’s presidency, Edelman complains that the “only substantive thing” that supported the charge that “this guy is wacky, he’s a radical left person” was his law-review article that argued that there is a constitutional right to a “subsistence income.” But that’s a strange complaint for at least three reasons.
First, neither I nor anyone else had yet had cause to undertake a comprehensive review of the record of someone who had not yet been nominated and who we believed wouldn’t be. In those pre-Internet days, a nominee’s response to the Senate questionnaire was a first place to try to dig deep. Edelman, not having been nominated, of course hadn’t submitted a response. It’s a safe bet that we would have found much, much more.
Second, what Edelman himself described as “my own Willie Horton” (see previous post for details) sure strikes me as “substantive.” Edelman seems to imagine that a letter of support from former New York governor Hugh Carey would have made that issue disappear. Edelman also ignores that other concerns about him—such as his use of the Fourteenth Amendment to restrict First Amendment speech protections—had already been raised.
Third, in his testimony in 2005 against the nomination of John Roberts as chief justice, Edelman himself claimed that Judge Bork’s 1971 law-review article on “Neutral Principles and Some First Amendment Problems” had “made things easy” for the Senate Judiciary Committee at Bork’s Supreme Court hearing:
Basically, all one needed to do was read that article, and it was plain that Judge Bork was not suitable to sit on our Supreme Court.
One need not agree with Edelman’s assessment of Bork’s article to recognize that it was plain from Edelman’s single law-review article that he was not suitable to sit on the D.C. Circuit.
In case there were any doubt about the sort of judge Edelman would have been, consider his praise for Justice Arthur Goldberg, for whom he clerked:
Working for him was an eye-opening experience. His first question in approaching a case always was, “What is the just result?” Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent. It took me a while to get used to that approach. The way I had learned the law at Harvard was that you looked up the answer in a book. The law was composed of “neutral principles” that you could apply to get the proper result, and you never really asked whether it was just or not. Justice Goldberg opened my consciousness to the fact that the overarching purpose is about justice.
* * *
As a consolation prize, my boss Orrin Hatch, the chairman of the Senate Judiciary Committee, informed the White House that he would support Edelman for a district-court seat in D.C. Despite having no trial experience, Edelman told Mikva that he would welcome an appointment to the district court:
I figured, I’m a smart enough guy, I’m more qualified to be a Court of Appeals judge, but I could certainly learn, and there are a lot of reasons why being a district judge is more fun anyway. So I said, “Yes, I would do that.”
Two district-court seats opened up in the summer of 1995. Edelman explains what happened next:
So Ab [Mikva] called me all excited and said, “Okay, now there’s a seat, dust off your papers, we can move on it.” …
Time passes. I’d call Ab infrequently enough so that I’m not bothering, not a pest, but once every couple of weeks or so, What’s up? Oh, it’s coming along, just have to clear it. Finally, mid-July, somebody else tells me, maybe Maggie Williams [Hillary Clinton’s chief of staff] tells me, There’s going to be a meeting about you tomorrow with the President, and they’re going to decide whether to send your name up. I said, Oh? We’ll let you know what happens. I said, What’s that about? I don’t exactly know, she said, but I’m going to the meeting, I’ll do what I can.
I think the meeting gets postponed once, so maybe it’s two or three days later and she calls and says, They’re not going to send your name up. The President said it’s too close to election, and he just doesn’t want to start a whole other controversy when essentially we’re already into the reelection period.
Ah, yes, “it’s too close to the election” in the summer of 1995—more than fourteen months before the election—to make a district-court nomination that the Republican chairman of the Judiciary Committee had already committed to support. Either Clinton was very timid, or he viewed Edelman as politically toxic, or both.
Edelman wasn’t happy with how Clinton handled the matter:
[N]either the President nor Hillary called me, and I was very angry about that. I completely understood and understand that Republicans controlled Congress and it’s quite possible, probably likely, that I would not have been confirmed, even to be a district judge. So I never had a problem with not nominating me, I thought that was entirely reasonable and expending political credit on—this is a President who didn’t expend political credit on any appointments, we know that from Lani Guinier and others. But in my case that was not something that bothered me. What did bother me was that neither one of them had the grace to call personally. It’s a character flaw. It’s an inability to say something that would have been perfectly well received.
* * *
Edelman got his revenge on Clinton one year later. Or so it seems. But perhaps the events are unrelated.
In any event, in September 1996, Edelman resigned his position as an assistant secretary of HHS in protest of Clinton’s decision to sign into law a Republican-sponsored welfare-reform bill. As the New York Times reported:
For Mr. Clinton, the resignation of Mr. Edelman was a particular rebuke because he and his wife, Marian Wright Edelman of the Children's Defense Fund, had been among the Clintons' oldest and most loyal supporters in the capital. But over the last few years Mr. Clinton had backed away from nominating Mr. Edelman to an influential appeals court post and then a lower profile Federal judgeship because of the possibility of a confirmation fight.
* * *
Edelman actually appears to have been much less interested in doing the work of a judge than in having the status of a judge. Indeed, he says essentially that:
It [being a judge] was something that probably always has been more meaningful for me symbolically than the actual thing of doing the job. I suspect it’s been a great favor to me to not be a judge.
His peculiar concern with status is similarly reflected in his insisting that “it’s in the record” in his 2004 interview that he was “the Assistant Secretary, not the Acting Assistant Secretary,” of HHS.
Just one thing so it’s in the record, that modestly bugs me, the Washington Post didn’t bother to do its homework when I quit the government and didn’t bother to find out that I was the Assistant Secretary, not the Acting Assistant Secretary. I had a recess appointment from the President, I have the certificate on my wall, and the consequence of that was that when people go and do a Google search, if they go to the Washington Post, rather than the New York Times, they repeat that I was the Acting Assistant Secretary, which is not true.
But Edelman wasn’t the assistant secretary. There were several positions of assistant secretary, and he held one of them.
Years later, a New York Times article that initially described him as “counsel” at HHS—he was counselor to the HHS secretary before becoming assistant secretary—would be changed to say that he was a “high official.”
Let’s just be grateful that he’s not Judge Edelman.
In September 1995, Clinton nominated Merrick Garland to fill Abner Mikva’s seat on the D.C. Circuit.
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