Suppose a colleague is nominated to the Supreme Court and the FBI pays you a visit for a background check on your pal. An agent asks the usual questions and then pops one that makes you pop sweat: has your friend ever abused alcohol or used illicit drugs? Do you tell the truth about a certain party 15 years ago when you saw the candidate smoke pot -- or do you lie?
It turns out that in the case of Douglas Ginsburg, President Reagan's fleeting Supreme Court nominee, a number of people lied. Not one of the people interviewed for Ginsburg's background check mentioned what Ginsburg himself later admitted: he had smoked pot. It was that revelation that sank his nomination.
For the FBI, Ginsburg was not its finest moment. The man had already worked at the White House and been confirmed as a federal judge. Twice before, the bureau had performed background checks on Ginsburg, and yet it seemingly could not find out what the press discovered almost instantly: Ginsburg was a man of his generation. Yes, indeed, the foul weed had passed his lips.
It's not likely any of the people the FBI interviewed will be prosecuted. Background checks are not conducted under oath, although the Justice Department, according to The New York Times, is considering whether it has a case. Legality aside, though, it's worth asking about the morality of the apparent lies -- whether a person is justified in either withholding damaging information about a Supreme Court nominee or telling an outright lie.
E. M. Forster, the late English writer, said that if given a choice between having to betray his country and his friend, he would sooner betray his country. Forster's famous line was revived soon after Ginsburg withdrew his nomination because it seemed the nominee had, in fact, been betrayed by his friends. At least two were quoted in the press as saying they knew Ginsburg had smoked pot -- although one later explained that he acknowledged only what Ginsburg had already admitted.
Of course, Forster was hardly speaking about marijuana. He was, instead, referring to those Cambridge University classmates and colleagues who later turned out to be Soviet spies. And in that context, the line is unforgivable -- a homoerotic paean to male friendship as the ultimate bond. But the spies of the ambridge set did real damage to their country and the Western alliance. Forster did not quite realize it, but as an Englishman, his chums had betrayed him, too.
But pot smoking is hardly treason. If anything, it's analogous to having held membership in a pro-communist organization at a time when naive and idealistic people joined by the thousands. As distinct from spies, these people did no real damage and, besides, were merely exercising their constitutional rights. Years later, in the McCarthy period, they were called to account for their associations, and some of them were severely penalized for them. Like Ginsburg's colleagues, they, too, were asked to rat on their friends. Some of them refused to do so -- some, like Lillian Hellman, flamboyantly and famously. Before they could answer the question, they had to answer to themselves. Silence was sometimes the result.
If possible, marijuana smoking is even less consequential than membership in a leftist organization during the McCarthy period. Yet the Ginsburg case proves the penalty can be just as dire. The one-time Supreme Court nominee was one of millions of persons who smoked pot in the 1970s. The stuff was everywhere, considered an innocent enough indulgence and, indeed, touted as preferable even to wine or beer. In the near future, the United States is likely to have a president who at one time smoked pot.
Some commentators have blamed the press for Ginsburg's downfall. It invaded his privacy. Nonsense. It was the holier-than-thou ideologues of the Reagan administration with their unrealistic and unforgiving standards who brought the man down. Like McCarthyites in the 1950s, they cannot distinguish between naive and basically harmless activities and those that are truly dangerous. Just as there was a difference between being a leftist and a communist spy, so there's a difference between being an occasional pot smoker in the 1970s and a heroin or cocaine abuser today.
The colleagues and friends of Ginsburg who purportedly lied to the FBI had the wit to make that distinction. They were not, in Forster's formulation, putting friendship above country but rather were simultaneously serving both. They don't warrant an investigation. But if the Reagan administration wants one, it ought to direct it inward at the unrealistic and hypocritical standards it sets. Ginsburg's friends may have lied, but the larger lie is that Ginsburg's pot-smoking mattered at all.