Peter Edelman Leaks the News of His Impending D.C. Circuit Nomination

And ignites a campaign against himself

As we have seen, the Republican takeover of the Senate after the 1994 elections led Bill Clinton to abandon a handful of contentious judicial nominations that he had already made. But the starkest immediate effect of the Republican takeover was on a prospective nomination that had not yet been formally announced, that of Georgetown law professor Peter B. Edelman to a coveted seat on the U.S. Court of Appeals for the D.C. Circuit.

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In September 1994, Abner Mikva, who was then chief judge of the D.C. Circuit, retired from the bench in order to become Bill Clinton’s third White House counsel in less than two years.

Mikva’s own nomination to the D.C. Circuit, by Jimmy Carter in 1979, had been controversial. In the course of his long political career in the Illinois legislature and in the U.S. House of Representatives, Mikva had earned a reputation as an ardent liberal, and his critics suspected that he would continue to be much more a politician than a jurist. In one of the rare roll-call votes on a Carter judicial nominee, Mikva was confirmed by a vote of 58 to 31. The eight Democrats who voted against Mikva included liberals Frank Church and Mike Gravel.

Mikva’s judicial career vindicated those senators who voted against his nomination. He quickly established himself as one of the two or three most liberal members of the D.C. Circuit. During his short stint as chief judge, he was widely blamed for destroying the collegial atmosphere on the court through his partisan posturing and maneuvering.

If you’ll indulge a personal aside: Mikva was one of two D.C. Circuit judges to interview me for a clerkship in the summer of 1984. (The other, believe it or not, was the very liberal Patricia Wald.) I was a summer associate at Arnold & Porter, having been recruited there by a very talented young lawyer by the name of Merrick Garland. Unbeknownst to me at the time, Garland had worked on one of Mikva’s election campaigns and had written speeches for him, and Mikva was a mentor to him, so, whether directly or indirectly, I owe that interview opportunity to Garland. Fortunately, Mikva evidently discerned as clearly as I did that we were not a good match. I tremble to think how different my life would have been if I had somehow ended up clerking for Mikva instead of Ninth Circuit judge J. Clifford Wallace.

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Mikva’s departure from the D.C. Circuit gave Clinton and Mikva a D.C. Circuit seat to fill. On October 28, 1994—just eleven days before the elections that would flip control of the Senate and the House—the Washington Post reported that “the White House has signed off on a nominee”:

The pick is said to be former Georgetown University Law School professor Peter Edelman, now counselor to Health and Human Services Secretary Donna E. Shalala.

The 56-year-old Edelman, a former Supreme Court clerk and Senate aide to the late Robert F. Kennedy, has also been vice president of the University of Massachusetts. Edelman and his wife, Children's Defense Fund head Marian Wright Edelman, are longtime friends of the Clintons. Edelman, who co-chaired the justice transition team effort after the 1992 election, would be filling the last vacancy on the 12-member appeals court, often said to be the second most important court in the country.

This was a surprisingly premature leak: The Senate had gone into recess until November 30, so no nomination could be made before then. What good purpose did the White House see in leaking the news?

The answer to that question, I’ve discovered, is found in a very long interview of Peter Edelman a decade later, in 2004, as part of an oral history of Clinton’s presidency. In that interview, Edelman recounts the “very emotional moment” in September 1994 when outgoing White House counsel Lloyd Cutler informed him that he would be nominated to the seat:

I was ecstatic.

Hillary called us [his wife Marian Wright Edelman and him] at home that evening. We both got on the phone, and she was really, really, really excited that it was going to happen. She said, We’ve just got to get the FBI going, get you appointed and get the hearings held and do this all fast, really, really, really fast. I said, I wish that that could be done and I’ll certainly do my part, but don’t hold your breath. It just takes longer than that. She said, I know, I know, I know. But it was very sweet. She was very excited about it.

Edelman goes on to explain that “You’re not supposed to talk about this stuff”—i.e., a not-yet-announced nomination—”but I just couldn’t contain myself.” Edelman himself spread the word to his colleagues at HHS—“I did tell them and maybe I shouldn’t have”—and “Everybody in HHS, Harriet Rabb, the General Counsel, and [HHS Secretary] Donna [Shalala] herself, everybody was really excited about it.”

So it wasn’t the White House that leaked news of the impending nomination. It was Edelman himself.

What folly. When the White House rolls out a nomination, it has the advantage of framing the narrative. It can line up supporters—often including folks on the other side of the ideological aisle—and distribute talking points that anticipate and preempt criticisms. By contrast, a leak—especially one weeks in advance of any actual nomination—gives critics of the prospective nominee a wide-open field.

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A nomination of Edelman to the D.C. Circuit was certain to arouse strong opposition.

For starters, notwithstanding his formidable intellect and his experience outside the legal academy, his and his wife’s closeness to the Clintons provided the only plausible explanation why he—a 56-year-old white guy—would be selected for a D.C. Circuit seat over the dozens, if not hundreds, of other candidates with greater appellate experience and/or the diversity characteristics that Clinton was emphasizing.

What’s more, Edelman was the very embodiment of 1960s-era liberal idealism. While I expect that he would take that as a compliment, it was a huge political vulnerability, not just with Republican senators but also with moderate Democrats and self-styled New Democrats.

Stuck in the 1960s?

It didn’t take much searching to find powerful ammunition against Edelman. In an extraordinary 61-page law-review article that he published in 1987, Edelman argued that there is a constitutional right to a “subsistence income”:

My basic point is that the past half century has brought us to a need for a new constitutional era, one presaged by intimations in existing doctrine but admittedly a step or more beyond where we have been, an era which involves judicial recognition of certain affirmative obligations on the part of the state to its citizens.

There are two lines of theoretical justification for this: one, that it is an obligation which has been implicit in our constitutional structure all along, or at least since the American polity has had enough resources to share its wealth more equitably; and two, that it is an obligation which has been acquired as a consequence of the government's historic and continuing complicity in economic arrangements that foreseeably resulted in the current maldistribution. The first is a substantive due process argument; the second is an equal protection theory.

Edelman alleges in his interview that he was the victim of an “orchestrated” and “very serious campaign of besmirchment and character assassination.” But his record readily invited the fair and vigorous criticism that he received, and there was no need for anyone to go through the bother of “orchestrat[ing]” anything.

In a house editorial at the end of November, the Wall Street Journal cited Edelman’s law-review article as it observed that “it’d be hard to find anyone in America more obstinately liberal on judicial issues.” It also highlighted what Edelman called his “own Willie Horton when I was youth commissioner” in New York:

Mr. Edelman has a Mike Dukakis-style record on crime. As director of New York State's Division for Youth in 1978, Mr. Edelman ordered a one-week furlough for a 17-year-old who had knifed a girl during a robbery. While on his furlough, this juvenile Willie Horton was arrested for raping, robbing and trying to electrocute a 63-year-old woman.

Two state court judges had urged Mr. Edelman not to furlough the youth because a psychiatrist had judged him a "sadistic psychopath." But upon the youth's arrest, Mr. Edelman told the New York Times that it's "not always possible to predict correctly that a release will work out satisfactorily -- you cannot be 100% right." We doubt this was consolation to the rape victim.

Voters have been rebelling against exactly this sort of criminal coddling, but now Mr. Clinton might nominate an exemplar of that mind-set. Cooler heads may yet spare Mr. Edelman, and the White House, the embarrassment of a nomination. But if they don't, Republicans have a duty to apply to Mr. Edelman the same strict scrutiny he'd apply to their laws.

In mid-December, George Will—the most influential opinion columnist in the country at a time when newspaper opinion columns were scarce real estate and much more influential than they are now—weighed in forcefully against a nomination of Edelman. “Peter Edelman is for President Clinton one debacle that need not happen,” Will began, as he then lambasted Edelman’s law-review article for “demonstrat[ing] an impatience with representative government that is tinged with contempt for it”:

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 Edelman's 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….

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. Edelman's trump is to cloak his agenda in the raiment of constitutional rights, thereby attaching spurious dignity to his political desires….

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. If liberals wonder why their label has become an epithet, they should note the vigor with which liberalism libels America….

[Edelman’s] 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.

Will’s column so clearly reflects his thinking and his distinctive style that I’m astonished to see that Edelman contends in his interview that Will didn’t really write it himself:

George Will wrote a whole column about my guaranteed-income article, which somebody wrote for him, maybe he added a few twists and so on, but somebody fed him all that stuff.

As it happens, I recall that George Will did contact me about Edelman (I didn’t know Will at all and certainly didn’t reach out to him), and I might well have sent him a copy of Edelman’s law-review article (which would have been much more difficult for him to obtain in those pre-Internet days), but I didn’t write a word of his column for him, and it strikes me as ludicrous—and genuine “besmirchment”—to suggest that anyone but Will himself did.

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Stay tuned for the rest of the story on Edelman.