If At First You Don't Succeed

By Jacob V. Lamar Jr

Throughout his short but illustrious career, Judge Douglas Ginsburg has shown a knack for staying above the fray. As a professor at Harvard Law School from 1975 to 1983, a time when ferocious political debate polarized the faculty, he made no enemies in either the liberal or the conservative camp. At the White House Office of Management and Budget in 1984 and 1985, Ginsburg grappled with an array of aggressive interest groups and lobbyists over environmental regulations and rules concerning safety in the workplace; yet he won high marks from both Republicans and Democrats on Capitol Hill for his adept handling of the job. "He can walk through land mines," says former OMB General Counsel Michael Horowitz. "He's careful, thoughtful and manages to bring people together."

Ginsburg will need all the equanimity he can muster as he prepares for what could be yet another explosive Supreme Court confirmation fight. Last week Ronald Reagan nominated the 41-year-old jurist as an Associate Justice of the court. Ginsburg, like Reagan's first choice, the defeated Robert Bork, is a judge on the U.S. Court of Appeals for the District of Columbia. Last month, as one Senator after another denounced Bork's ideological views, the President promised that his next nominee would be just as objectionable to liberals as Bork had been. Reagan may have made good on his promise.

To liberals, the most disturbing thing about Ginsburg is his chief sponsor: Attorney General Edwin Meese. After watching Ginsburg during the young lawyer's two years of service in the Justice Department's Antitrust Division, Meese became convinced that he was a true believer in the conservative cause, and lobbied hard for his appointment. Meese had to prevail over White House Chief of Staff Howard Baker, who preferred that the President nominate moderate, mainstream, conservative Judge Anthony Kennedy, an eleven-year veteran of the U.S. Ninth Circuit Court in California.

Reagan did not decide who would get the nod until he met with Baker and Meese Thursday morning, hours before he was scheduled to announce the nomination. Although Baker warned that Ginsburg might have confirmation problems, Meese won the day. Afterward, Reagan heard from Senate right-wingers like Jesse Helms, who argued that appointing a "vanilla conservative" like Kennedy would be a surrender to the anti-Bork forces.

The President did not meet his new nominee until half an hour before he presented him in the East Room of the White House. If Reagan knows little about Ginsburg, he has a lot of company: the prospective Justice has been an appeals-court judge for less than a year and has written just 18 published opinions. Massachusetts Senator Edward Kennedy was concerned that Ginsburg might be a "Judge Bork without the paper trail." But most lawmakers reserved their opinions. "I am not in a position to offer any assessment of his nomination at this point," said Judiciary Committee Chairman Joseph Biden. "He will receive a full and fair hearing."

Many court watchers question just how conservative the shy, unassuming Ginsburg really is. In his fields of expertise, antitrust law and regulation of the broadcasting and banking industries, Ginsburg is a free-market disciple who believes the government should intervene as little as possible in the business world. Yet there is virtually nothing in his handful of scholarly articles and opinions to indicate where he stands on civil rights, women's issues and privacy rights. Bork's conservative stands on those volatile social matters killed his nomination.

Harvard Law Professor Hal Scott, a friend of Ginsburg's since high school, says the new nominee is a social conservative, though not in the Bork mold. "The difference is Bork is a conceptualist," says Scott. "He has a theory, and the issue is how to fit the case into the theory. Doug comes at things case by case." With Ginsburg on the Supreme Court, Scott says, "everyone will get a fair shake."

Ginsburg's age was an important factor in the President's decision. If approved, Ginsburg would be the youngest Supreme Court Justice since 1939, when William O. Douglas was appointed at 40. "He can be a force on the court for 30 years," says a White House aide. But Ginsburg's inexperience could work against him. When he was seeking confirmation for his federal judgeship last year, the American Bar Association rated him "qualified," its lowest positive ranking.

Nonetheless, Ginsburg possesses a remarkable resume for so young a man. Editor of the law review at the University of Chicago Law School, clerk for liberal Justice Thurgood Marshall, and later professor at Harvard, he left teaching to join the Justice Department as Deputy Assistant Attorney General for regulatory affairs. After a year, he went to work at the regulatory affairs executive office at the OMB, then returned to Justice to head the Antitrust Division. Impressed by his brainy efficiency, Meese recommended him to the President for the federal judiciary in 1986. There is only one quirk in the Ginsburg dossier: during his freshman year at Cornell, he dropped out and became a partner in a computer dating service, Operation Match, in Cambridge, Mass. He sold his share in the business after a couple of years and returned to school several thousand dollars richer.

Ginsburg's personal life may offer a clue to his thinking on social issues. After his first marriage ended in divorce, Ginsburg married Obstetrician- Gynecologist Hallee Morgan in 1981. Their two-year-old daughter is also named Hallee Morgan. When asked why the little girl does not have her father's surname, Christopher DeMuth, president of the American Enterprise Institute and an old friend of Ginsburg's, told the New York Times, "It is a modern marriage taken to the ultimate."Could Douglas Ginsburg, to the horror of some conservatives, turn out to be an ardent feminist?

With reporting by David Beckwith and Anne Constable/Washington