Not that it will console him, but Judge Douglas Ginsburg is a man ahead of his time. His youth helped get him a nomination for the Supreme Court. Ironically, though, the nomination collapsed for a reason that will likely carry far less weight when he is as old as Robert Bork is now.
We should be clear right off that the decisive blow to Ginsburg was not simply that he had violated the law a few times. If that were the standard, imagine the questioning we could anticipate. "Did you ever leave your car in a no-parking zone?" a member of the Senate Judiciary Committee might ask. "Have you ever driven over 55 mph?" And nominees who passed these tests would face at least one more: "Have you ever violated any sexual practice laws?" As anyone who has checked the statute books of various states can confirm, that question would stop lots of folks -- even the scrupulous parkers and slow drivers.
No, what defeated Ginsburg is that, by smoking marijuana several times, he violated the wrong law. I do not mean to suggest that a law professor's smoking pot at parties shouldn't be considered in reviewing his nomination. But what is remarkable is that, to the conservatives who were Ginsburg's natural supporters, the mere fact that he had smoked it as an adult amounted to a virtual disqualification -- enough to pull the rug from under him even before his nomination reached the hearings stage and even before the facts were fully known.
Something more than the mere illegality of marijuana, more even than its health risks and the prominence of the war on drugs in this administration, must account for the political passion that the weed clearly still evokes. The key factor is that pot, and public attitudes toward it, figured prominently in the social and political traumas of the 1960s and 1970s. Even today, marijuana retains powerful symbolism, for the cleavages created by that upheaval have not been totally healed.
For this reason, the Ginsburg affair brings to mind the history of Supreme Court nominations in the years following the Civil War. So long as sectional strife was the dominant political fact, the Senate held nominees to stringent standards of orthodoxy. But as time passed, the Senate gradually softened, eventually confirming with enthusiasm men whose records would have precluded any consideration a few decades before.
In 1866 Andrew Johnson nominated Henry Stanbery to the court. Stanbery was an able lawyer and a loyal Republican, but his Reconstruction policies were insufficiently radical for the Senate, which did not merely reject him but eliminated the seat on the court. Eight years later, President Grant felt confident enough to nominate Caleb Cushing, a former Democrat once suspected of having southern sympathies, to be chief justice. He might have succeeded too -- until it was revealed that Cushing had written a personal letter to Jefferson Davis in March 1861. By 1877, tensions had eased to the point that the first John Harlan was confirmed, albeit with some hesitancy, despite the fact that he had once owned slaves.
The most dramatic development came in 1888, when President Grover Cleveland sent to the Senate the name of Lucius Quintus Cincinnatus Lamar, who had been a leading secessionist and a Confederate colonel and diplomat. Lamar aroused furious Republican opposition, but he squeaked by, 32 to 28, on a nearly straight party-line vote. Five years later, Republicans squawked, but just a little, when one of their own, Benjamin Harrison, nominated a former minor Confederate official, Howell E. Jackson, to the court.
By the time William Howard Taft became president, a nominee's Confederate war record was counted in his favor as indicating the demise of sectional hostility. In 1909 the press noted genially that Horace Lurton, who had been captured by the Union Army, was "the only man appointed to the Court who has served time in prison." The next year, Taft promoted Edward D. White (who had originally been put on the court by Cleveland in 1892) to the nation's highest judicial seat. The national wave of self-congratulation was summed up by Theodore Roosevelt: "It seems to me that nothing could be a better augury of the future of the country than that a Republican president should appoint a former Confederate chief justice of the United States, and receive the unanimous applause of his countrymen."
The issues are far different, but 1988 is shaping up about like 1888. A Democratic president could successfully name a former marijuana smoker to the court -- indeed, a Democratic president could be a former marijuana smoker. But not a Republican president. At least not yet. If history is any guide, however, we can expect that around 2010 a conservative Republican president will appoint as chief justice someone who, in younger days, had smoked pot voraciously, sat in at a building or two, and maybe worn an American flag on the seat of her pants. And the nation will applaud, or pay no mind.
The writer is a visiting professor of law at the University of Michigan Law School.