The nomination of Douglas Ginsburg to the Supreme Court illustrates a bizarre Washington habit: the habit of political overcompensation.
Judge Robert Bork's many articles and speeches made a convenient, eventually fatal, paper trail for his pursuers. The idea with Ginsburg seems to be to present the Senate with a judicial sphinx who, outside his narrow scholarly field (economic regulation), is essentially an enigma when it comes to the vital issues.
Ginsburg, once a professor at Harvard Law School, is one of those bright ideologues in three-piece suits and Adam Smith neckties (a caricature, of course, but not an extravagant one) who led the Reagan administration's economic deregulation crusade, disentangling free enterprise from the allegedly strangling hand of government supervision. As a group, these young fogeys tend to be very sure of their views and wise before their time. Friends and former colleagues senior to Ginsburg recall that even in his 20s he made them feel almost frivolously youthful by comparison.
But Ginsburg is a young fogey with a difference -- an adherent of the "law and economics" school of jurisprudence. He believes that many vital legal and constitutional questions are most usefully analyzed as economic ones, with "efficiency" as the sovereign test.
A hard-fought issue sure to arise at the Ginsburg confirmation hearings is his defense, during his years as a regulatory official, of the asbestos industry. Ginsburg reportedly worked out a cost/benefit analysis in which the carcinogenic risks of asbestos (reckoned at so many dollars per shortened life -- the price is arbitrary and therefore debatable) were weighed against the economic benefits of a robust asbestos industry.
This is a mode of reasoning sure to be mercilessly parodied; yet one must be careful to be fair. It is not as heartless as it sounds.
Indeed, the cost/benefit analysis favored as a legal tool by the law-and-economics people is a useful technique for making judgments about the utility of alternative technologies. For example, given a certain fixed demand for electricity, it's certain that every kilowatt hour of nuclear-generated power forgone will need to be supplied by a kilowatt hour generated by fossil fuels, known air pollutants with predictable consequences for the morbidity tables. So any risk inherent in nuclear power generation (where deadly accidents are statistically predictable, say, one per 10,000 reactor-years) must be balanced against the risks associated with higher levels of fossil-fuel use.
This mode of analysis has so far gained little more than a troubled and controversial foothold in the law. What is awkward is that it requires the quantification of what, in classical political and legal thought, has never before been thought to be quantifiable.
One skeptical scholar states the standard reservation this way: "Economic analysis can be clearly beneficial in the process of constitutional analysis. Nevertheless . . . there are too many constitutional doctrines that endorse ideas or values that are largely beyond the economist's jurisdiction. To employ an extreme example, the economist's recognition of people's 'taste for discrimination' is of little help in understanding the Constitution's moral assessment that racial discriminations are inherently invidious."
Ginsburg's association with a novel and controversial school of legal thought may not matter if less theoretical issues intrude.
One will be age and experience. Ginsburg, at 41, is eight years older than the Jefferson who drafted the Declaration of Independence and has six years on the Madison who, at 35, was "father" of the Constitution.
But more than chronology, the issue is seasoning. Judge Bork was clearly the leading conservative jurist of his generation, an accomplished scholar and public servant with an original and searching mind. Ginsburg, despite the silly talk of his being a "Bork clone," is weak in all the ways Bork was strong. That is the hazard, and silliness, of overcompensation.
No substantive issue may matter very much if the American Bar Association is as unenthusiastic about Ginsburg now as it was when it rated him merely "qualified" (its lowest of three ranks) as a nominee for the U.S. Court of Appeals a year ago. If 51 senators need an excuse to hold out for a more distinguished candidate, another damnation with faint praise by the ABA just may do the job.