A president may choose a Supreme Court nominee for several reasons. The selection may be political, regional, religious, racial, or it may be done, as with President Reagan's choice of Douglas Ginsburg, out of spite. The 41-year-old judge is Reagan's stick-in-the-eye to the forces that rejected Robert Bork.
Of course, the president couched Ginsburg in different terms. Playing a bit of catch-up ball, he characterized his man as a law-'n'-order nominee -- a ploy he used too late in the day for the doomed Bork. But the president's true intentions were signaled last month in a New Jersey speech. He vowed then that if Bork were rejected by Senate liberals and moderates, he would find another "they'll object to as much as they did this one." In Ginsburg, Reagan may have found his man.
The telltale signs are everywhere. The nomination of Ginsburg was pushed by Edwin Meese III, the ideologically rigid attorney general. It was opposed by White House Chief of Staff Howard Baker, a middle-of-the-road Republican who was left splattered precisely there by administration ideologues. Ginsburg was championed by Sen. Jesse Helms (R-N.C.), who reportedly threatened to filibuster some of the other choices. The selection was neither routine nor methodical. At the last minute, the right wing staged a coup.
As for Ginsburg, it is said that not much is known about him. He has been on the U.S. court of appeals here for only a year and has written few formal opinions. Before that, he was a Reagan administration appointee, a Justice Department and White House official specializing in regulatory and antitrust issues -- his field at Harvard, where he taught from 1975 to 1983. These are not areas of the law about which Hollywood makes movies, but they are at the ideological heart of the new conservative movement. It is only by hacking away at the restrictions imposed by government regulation and antitrust laws that the Gulliver of the free enterprise system can rise again.
In fact, though, much is known about Ginsburg -- or at least much can be deduced. It could not have been his scholarly writing that so impressed Meese and Reagan. Ginsburg has not been all that productive. It could not have been his standing as a jurist. He has almost none. It could not have been his reputation as a lawyer. He has never practiced and, maybe for that reason, was given the lowest acceptable rating by the American Bar Association when he was nominated to the appeals court. It could only have been one thing: his ideology and, perhaps, the commitments he made. Among movement conservatives, Ginsburg is known as one of them.
A president who decries the politicization of the nominating process and then chooses a Ginsburg is like the man who kills his parents and then throws himself on the mercy of the court as an orphan. This is the standard definition of chutzpah. Reagan's chutzpah involved passing up several potential nominees whose credentials were beyond dispute but whose ideological purity was somewhat in question. One of them was Anthony Kennedy, a U.S. Appeals Court judge in California. Kennedy has been on the bench for 11 years, is conservative, has written more than 100 opinions and was characterized by a leader of the anti-Bork movement as "a credible candidate." As to Ginsburg, that same person said, "This guy is an insult."
There are many holes in Ginsburg's record, but maybe the most troubling is that he has never really practiced law. In an earlier era, his very champions would have denounced him as an "egghead" -- as someone who knows how things should be, but not how they are. There's something to this criticism. Intellect alone has its limitations. Nothing so changes the dreamy liberal's view of the "noble poor" as the chance to work with some of them. On the other hand, conservatives too can be instructed by life. The Miranda rule requiring suspects to be apprised of their rights might seem a silly impediment to justice unless you've witnessed the way the police sometimes work. The record suggests that Ginsburg has seen little of this.
But there is little record to go on. In a way, Ginsburg was chosen by Reagan for the same reason Prince Charles chose his Diana: she was a woman with a pedigree but without a record. By all accounts, that marriage has turned out badly, and this Supreme Court nomination may turn out the same way for the American people. The president chose ideological purity over unquestioned legal credentials. Ginsburg is the perfect spite nominee -- a man whose foremost qualification is his lack of almost any.