Sins of The Past

By Margot Hornblower

Only a week before, Ronald Reagan had been all smiles as he ushered Douglas Ginsburg into the East Room of the White House to the applause and cheers of supporters. True, the former Harvard professor was, at 41, unusually young to be nominated to the Supreme Court and, with only a year on the federal bench, somewhat inexperienced. But the candidate for Associate Justice was, the President declared, "a man who believes profoundly in the rule of law."

Nine days later Ginsburg, under pressure from White House aides and his right-wing backers, withdrew his name. He did so gracefully, declaring in a 65-second appearance in the White House briefing room, "Unfortunately, all of the attention has been focused on our personal lives, and much of that on the events of many years ago. My views on the law and on what kind of Supreme Court Justice I would make have been drowned out in the clamor." Then he wisely turned his back on shouting reporters and walked briskly out of the harsh national spotlight.

The clamor that Ginsburg cited had stemmed from his admission that he smoked marijuana as a college student in the 1960s and as a law professor reportedly as late as 1979. Marijuana "was the only drug I ever used," he said in response to inquiries. "I have not used it since. It was a mistake, and I regret it."

Although Ginsburg's indiscretion may have been common among members of the Big Chill generation, his confession fatally undermined his support among the Capitol Hill conservatives who had lobbied so hard for his nomination. The disclosure was the final straw in a week of controversy that included accusations of conflict of interest over his investment in a cable-television company, charges by a congressional committee that he ordered the destruction of documents while he worked at the Justice Department, allegations that he improperly sidetracked rules to limit the use of cancer-causing asbestos, and the revelation that his wife, an obstetrician, performed two abortions while in medical training.

A more substantial jurist might have better withstood the slow drip of corrosive revelations about his earlier life. But so little was known about Ginsburg that it was easy for minor matters to grow into major questions about his fitness to serve. His admission that he smoked pot should not have been an automatic disqualification. If it were, the ranks of Government might be devastated. The National Institute on Drug Abuse has reported that more than 23% of the adult population has used marijuana, including a staggering 64% of those ages 18 to 25. Indeed, two Democratic presidential candidates, Albert Gore and Bruce Babbitt, were prompted to admit that they too had tried pot years ago. Similar confessions came from Senator Claiborne Pell of Rhode Island and conservative Republican Congressman Newt Gingrich of Georgia.

Nor could the most ardent foe of abortion have written Ginsburg off merely for marrying a doctor who performed the procedure a few times before deciding to stop. Similarly, Ginsburg's investment in a cable-television company while he served in the Justice Department was not illegal. By themselves, these incidents could have been shrugged off. Yet taken together, they hardly painted a portrait of the solid, well-grounded individual the public would normally expect on the Supreme Court.

For the Reagan Administration, wounded by the Senate's rejection of Robert Bork only two weeks earlier, this second nomination was tragedy replayed as farce. The hasty choice of an obscure jurist with a negligible record on issues outside the narrow field of business regulation again raised the issue of the President's lack of attentiveness. The Administration "made no intensive study" of Ginsburg, said Democratic Senator Patrick Leahy of Vermont. "He fit a particular litmus test, so he was put forward." Worse, the President appeared to be whipsawed by events, firmly declaring his support for Ginsburg even as his aides were pressuring the nominee to resign. That Ginsburg should falter over marijuana rather than in any grand ideological confrontation was particularly humiliating. Reagan has made the war on drug abuse a pillar of his pro-family platform. The first reaction of Attorney General Edwin Meese, Ginsburg's chief patron, was a reversal of Meese's previous position on drugs. "His action, taken during his younger days . . . certainly does not affect his qualifications to sit on the Supreme Court," declared the Attorney General, who only six weeks earlier had initiated a program to eventually test 60,000 Justice Department employees for drugs.

Early Friday, reporters asked Reagan whether Ginsburg should have "just said no" -- a pointed reference to First Lady Nancy Reagan's highly publicized campaign for abstinence from drugs. The President countered, "How many of us would like to have everything we did when we were younger put on the book? I'm satisfied with his statement. He was not an addict."

On Capitol Hill most Democrats offered cautious sympathy for Ginsburg, while conservatives were forced into painful contortions. "All of us wish he hadn't done it," declared Republican Senator Jesse Helms of North Carolina, who had threatened to filibuster if Ginsburg was not nominated. "The more relevant thing is that he assured us he hasn't touched it since then. I suspect that everyone on the high court has broken one law or another." But within 24 hours after Ginsburg's confession, his supporters were defecting. Helms, Republican James McClure of Idaho and others urged Reagan to accept Ginsburg's withdrawal.

When Education Secretary William Bennett, a leading conservative in the Reagan Cabinet, volunteered on Friday afternoon to talk to the nominee about quitting, the President finally gave in. "Do what you think best," he told Bennett. The Education Secretary telephoned the beleaguered judge and advised him to bow out gracefully before his prospects deteriorated further. On Friday night Meese's aide William Bradford Reynolds called upon Ginsburg and extracted his promise to withdraw the following day.

Ginsburg finally telephoned his withdrawal to Reagan, who was at Camp David, at 11:30 a.m. Saturday. The President made no attempt to talk Ginsburg out of it. The announcement, scheduled for 2 p.m. in the White House briefing room, was delayed a full hour as Ginsburg and his wife were caught in traffic by a veterans' parade. Eventually, Ginsburg was compelled to leave his car and walk the last four blocks to the White House. It was not a good day for him. In his withdrawal statement, Ginsburg declared his intention to remain on the Court of Appeals in the District of Columbia Circuit "for many years to come." The President will make no move to ask for the judge's resignation from the bench.

The White House hopes to choose its third nominee for the vacant Supreme Court seat this week, if it can avoid the ideological dissension that led to Ginsburg's nomination. Ginsburg's replacement will most probably be chosen from among four runners-up from two weeks ago: Appeals Court Judges Anthony Kennedy of Sacramento, William Wilkins of South Carolina, Ralph Winter of New Haven, Conn., and Laurence Silberman of Washington. Kennedy, the favorite last time, had been called to Washington, led to believe he was the top choice, and then scuttled at the last minute for Ginsburg.

The Bork and Ginsburg nominations offer a study in contrasts. With Bork, too much was known and he was hoist by the petard of his own petulant rhetoric. Ginsburg's chief virtue, in the eyes of a bullied Administration, was precisely what was not known: this low-key free-market-economics expert, like Bork a graduate of the University of Chicago Law School, had never had occasion to express himself publicly on major constitutional issues of privacy, civil rights or criminal law. But as reporters delved into Ginsburg's life, seeking clues to his philosophy, it was the ideologues of the Reagan Revolution who found themselves unsettled by the revelations.

First there were stories about Ginsburg's partnership in a computer dating service during his college years, as well as his wife's involvement in abortions while a resident at Beth Israel Hospital in Boston. There were headlines concerning a possible conflict of interest. Ginsburg owned $140,000 worth of convertible bonds in Rogers Cablesystems, a Canada-based cable- television firm, in 1985 when, as chief of the Justice Department's Antitrust Division, he played a policy role in a court case over cable-company rights. Although no clear evidence surfaced that Rogers benefited from Ginsburg's actions, the Office of Government Ethics opened an inquiry into the matter last week.

Ginsburg also garnered unfavorable publicity over his role as chief of regulatory policy at the White House's Office of Management and Budget in 1985. He helped delay asbestos regulations that were deemed too costly for the number of lives saved. Michigan Democratic Congressman John Dingell accused Ginsburg of destroying drafts of a letter on Government antitrust policy while he was at the Justice Department. Ginsburg countered that the drafts were prepared by his staff without his approval. Without the admission that he had smoked marijuana, it is unlikely that these minor accusations would have derailed Ginsburg's nomination. But his qualifications were certain to undergo critical scrutiny by an American Bar Association committee. During his confirmation for the D.C. Appeals Court, the A.B.A. had rated Ginsburg only as "qualified," the lowest of three passing grades.

When the President nominated him two weeks ago, Ginsburg assured his audience that he was looking forward to the confirmation process. Given the gauntlet that Bork had just run, the statement seemed gracious but a little naive. Given what is now known about Ginsburg, it was foolhardy. In the wake of his withdrawal, few were talking publicly about the long-range implications of the embarrassment. A lame-duck President who has been buffeted by scandal, a stock-market crash and the bruising defeat of his first court nominee could ill afford this latest fiasco.

With reporting by David Beckwith and Anne Constable/Washington