Ah, the good old days … when liberal judicial activists were candid—at least with themselves and their close associates—about what they were really up to.
From the D.C. Bar’s magazine, here’s an excerpt from a very interesting “Legends in the Law” interview with Georgetown law professor Peter B. Edelman about his clerkship for Justice Arthur Goldberg:
What was Justice Goldberg like?
He was a wonderful person. Very warm. He treated his law clerks like family. 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.
If Edelman was, as he indicates, initially a slow learner in the ways of liberal judicial activism, he more than made up for it over time. One example is his 1987 law review article arguing that there is a “constitutional right to some form of minimum income.”
In December 1994, President Clinton had signed off on nominating Edelman to a D.C. Circuit seat when George Will published a column highlighting Edelman’s 1987 article. As Will aptly put it, Edelman’s article “demonstrates an impatience with representative government that is tinged with contempt for it.” In terms strikingly similar to Edelman’s approving description of Goldberg’s approach to judging, Will correctly discerned the “catechism” of Edelman’s “judicial activism”: “‘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.” Clinton then pulled the plug on the nomination.
