(The Other) "Justice Ginsburg":

When the Harriett Miers was first announced, I noted that the common thread between her and John Roberts was that they were both likely to uphold the use of executive power in the War on Terror, having both served faithfully in the Executive branch. I'm currently reading Right Nation: Conservative Power in America, and I now note another (not unrelated) common thread: they both have strong ties to the Bush family. Roberts served as Deputy SG for Bush senior, and was nominated, though not confirmed to the D.C. Circuit by him. And he was of course later nominated and confirmed by W. Miers, of course, is infamously a Bush crony. The authors of Right Nation point out that loyalty and cronyism are Bush family trademarks. Indeed, W. made his fortune through oil company cronyism, and Bush Senior weeded out all Reaganites from the White House in favor of Bush hangers-ons (including apolitical family friends from Texas).

The Miers fiasco presents an opportunity for conservatives to put a stop to the Bushes' preference for cronyism and loyalty over principles, a particularly bad preference when it comes to the Supreme Court. The obvious successor to Ms. Miers, when her nomination is ulimately withdrawn or defeated, is Judge Douglas Ginsburg of the D.C. Circuit. He's clearly one of the leading judges in the country, with vast experience in antitrust law, admintrative law, constitutional law, and more. His marijuana incident is now more than twenty years in the past, and no longer seems disqualifying in any event, given subsequent revelations ("I didn't inhale" and whatnot).

Most important, Ginsburg (who is still only sixty) is not a Bush crony or loyalist, and can be counted on as a strong and independent voice on the Court. And conservatives would rally around: if he was good enough for Ronald Reagan, surely he's good enough for the Bush Adminstration.

UPDATE: If not Ginsburg, I'll settle for other brilliant, not-age-disqualified Reaganites, including Danny Boggs, Frank Easterbrook, and Alex Kozinski. Anyone noticed that except for J. Harvey Wilkinson, no Reagan appointees seem to have made any of the circulated "short lists?"

Scott Scheule (mail) (www):
But of course he wasn't good enough for Reagan--when the administration discovered the marijuana incident, they pressured him to withdraw his name.
10.24.2005 2:11pm
Gordon (mail):
Professor Bernstein, you and others on the academic and political right are forgetting one key matter regarding any judicial nominee.

There remain several not-so-conservative Republican Senators (Spector, Chaffee, Collins, Snowe come to mind) who aren't on the anti-abortion bandwagon. If they and two other Republicans join a united Democratic front in voting against a true-blue fire-breathing conservative nominee, that individual won't get onto the Court either.

And that's not even considering the whole "nuclear option" debate. I know conservatives are itching for a fight, but I assume that they think with the "nuclear option" they can win. What if they lose?
10.24.2005 2:25pm
GMUSL 2L (mail):
It would be nice to have a non-liberal Jew, as well.
10.24.2005 2:28pm
anonymous coward:
"What if they lose?"

Bush would be viewed as a lame duck who can't get his nominees confirmed despite his party controlling the Senate?

He clearly wanted someone without a paper trail after Roberts, but if Miers goes down, the political calculus will be different. The loss if McConnell/Luttig/Jones/etc. is borked would be to the conservative movement more than Bush personally. (Bush would not be unscathed, but it would be a nastier blow to those who really do want more Scalias or Thomases.)
10.24.2005 2:38pm
Arthur (mail):
It's not at all clear that marijuana use is more tolerated in oficial Washington now than it was then, particularly among the loony right who lead the anti-Miers forces. Certainly the federal criminal penalties are higher now. In any event, the Ginsburg "marijuana incident" (which was not just marijuana, and not just one incident) that his Harvard Law students were whispering about back then was much more substantial than the version the media published in that pre-blog era. Ginsburg remains disqualified.
10.24.2005 2:45pm
Anonymous Jim (mail):
"the loony right who lead the anti-Miers forces"?

Is that really where the bulk of the opposition lies?
10.24.2005 2:49pm
Anyone care to wax philosophical on Edith Jones?
10.24.2005 3:02pm
Cornellian (mail):
It would never cross my mind to reject a nominee because he once smoked pot in college. If he's otherwise qualified and has a solid track record as a judge I'd be happy to have him.
10.24.2005 3:09pm
Cornellian (mail):
UPDATE: If not Ginsburg, I'll settle for other brilliant, not-age-disqualified Reaganites, including Danny Boggs, Frank Easterbrook, and Alex Kozinski. Anyone noticed that except for J. Harvey Wilkinson, no Reagan appointees seem to have made any of the circulated "short lists?"

I'd love to see Easterbrook nominated. Imagine, Supreme Court opinions that are actually readable!
10.24.2005 3:10pm
Alex R:
Previous disqualification for pot-smoking might work in his favor among liberals... :-)
10.24.2005 3:19pm
Zywicki (mail):
In the article in the Washington Post when Miers was named, there was a very specific mention that Wilkinson was specifically not considered this time because he talked to the press last time about having been interviewed. In the context of the article it was quite a gratuitous slap at Wilkinson that was clearly intended to send a message about speaking with the press. I can't find a link to the article.
10.24.2005 3:25pm
James Kabala (mail):
Ginsburg's problem was not that he had smoked pot while a student (an action subsequently confessed to by Gore, Kerry, and many others), but that he had done so while a professor. I don't think even this would be a disqualifier today, however, except that the shadow of having been withdrawn before would hang over Ginsburg's head.
10.24.2005 3:33pm
cdow (mail):
Gotta love any federal judge who's been parodied in a Saturday Night Live skit. "Call me Captain Toke".
10.24.2005 3:39pm
Been There, Done That:
Ginsburg's concurrence in denial of en banc in Seegars should disqualify him, regardless of one's ideology. The man either does not believe that federal courts should be open to civil rights litigants, or he is willing to go to extreme lengths in denying standing when he lacks the courage to address a sticky question.

And this is not the only example of his strangely narrow views of standing.

However, he did get a bum rap back in 87.
10.24.2005 3:53pm
Visitor Again:
Ginsburg probably still gets stoned to get a groove on. I knew lots of lawyers of his (and my) generation who smoked dope while working. One criminal defense lawyer in particular won jury acquittal after jury acquittal while ripped out of his mind. Prosecutors, on the other hand, would smoke dope only at night when they were off duty; it would have been a tad too hypocritical for them to get stoned while they were sending young kids away for five years for possesing mary jane. And they exhibited this rewtraint even before ethics became a required subjectr in law school and on the bar exam! Oh for the good old days. Reefer madness!
10.24.2005 3:54pm
Dave Hardy (mail) (www):
Note about Bush purging Reaganites: I was working in DC (career, not appointee) over those years. Bush in his second term got rid of a lot of folks who had been appointed in first term, at the higher levels. The reason wasn't a purge. The appointments are used as patronage, to repay favors in the last election. Comes the next election, you have new favors to repay, and the last set of appointees have had up to four years, that was payment enough.

And it really is repayment. We had one Ass't Secretary of Interior for Fish, Wildlife and Parks who had neither interest nor experience in any of those, but her father had donated zillions to the GOP. I read her presentation at her confirmation hearings, and was chuckling throughout it. Her qualifications were essentially "I enjoy walking thru parks," embellished a lot and repeated time after time in slight paraphrasing. Literally. She was confirmed, of course, because both parties expect the use of such positions as payoffs and it wasn't any particularly important or controversial position.
10.24.2005 4:10pm
CharleyCarp (mail):
A. Raymond Randolph.
10.24.2005 4:10pm
I suspect that the main reason for the fact that Reagan nominees are not figuring more prominently in the "short lists" is that Ronald Reagan's administration ended 17 years ago. John Roberts is 50. During the Reagan Administration he was 26-34. Most people who are the appropriate age now for the Supreme Court are unlikely to have been an appropriate age for a judicial nomination in the 80s.

The second most likely reason, of course, is the paper trail. All of Reagan's nominees have 17-25 years of experience being judges, and have probably had to weigh in at some point on just about every issue in the book.

As for the people you cite, they're all brilliant and fairly independent-minded, but of course none of them are women. Maybe if this Miers nomination fails, that aspect will be seen as less important in round 2.

I seriously hope that the article that Prof. Zywicki cites is mistaken.
10.24.2005 4:34pm
Gordon (mail):
Before Judge Easterbrook is anointed he must first renounce his misguided opinion in Hill v. Gateway 2000, which manages to outrage both common law and the Uniform Commercial Code.

How about Richard Posner for the Supreme Court? He's brilliant, he's antagonized both the left and the right during his long career - plus he's getting old. What a combo! Seriously, even though someone like Posner is eminently unnominable and unconfirmable, he's the quality of intellect and the type of original thinker the Supreme Court needs.
10.24.2005 4:45pm
Bob Flynn (mail):
Here's the play that solves the problem and rescues the right-wing from all this morose doom and gloom.

1. Withdraw Miers, nominate Kozinsky.
2. Simultaneously, nominate Eugene Volokh to the 9th Circuit.
3. Simultaneously, nominate Sasha to assume the con here the "Conspiracy"

With this triple-play, you have solved the legal/political/cultural crisis with one fell swoop, and single-handedly saved the presidency and Constitution for future generations.

Who's with me?:)
10.24.2005 4:56pm
BruceM (mail) (www):
The fact that Posner has never been appointed is proof that the only people eligible for SCOTUS appointments are partisan hacks with no minds of their own. Posner is, shall we say, overqualified. Same for Easterbrook and Kozinski.
10.24.2005 5:13pm
Houston Lawyer:
From what I've read about Posner is that he one pretty good theory and he tries to use it much too broadly. While this may make good copy, it can easily lead to a judge making up the law to fit his world view. We have enough of those types on the court already.
10.24.2005 5:31pm
Adam (mail) (www):
Kozinki's still young enough to make a long impact on the Court, as is Easterbrook. Either would be confirmed - and entertaingly so.
10.24.2005 5:35pm
DJ (mail):
Last I heard, Judge Ginsburg's wife was very ill, and he spends much of his time at their Virginia home in the country caring for her. If this is still so (and, sadly, it probably wouldn't be so only if his wife is now gone), then he's obviously not in a good place for a promotion. Too bad, because he's a great judge and, I can attest, a very good and decent man.

One question: Bernstein and others have been quick to conclude to Miers is just one more crony. Is it fair to call someone a crony just because they've known the President for a long time? Isn't the fact that Bush has used Miers as his lawyer for over 10 years evidence that, you know, she's a good lawyer? Should some one be disqualified because they've known the president and done a good job for him?
10.24.2005 5:55pm
Frank Drackmann (mail):
Wasn't the great late Chief Justice treated for narcotics addiction?
10.24.2005 5:57pm
Visitor Again:
Rehnquist was treated for addiction to a pain-killing drug which was prescribed for him for his chronic and acute back pain. It's very easy to become addicted to a pain killer, prescribed or not, and once one has become used to taking them, it is very hard to discontinue their use without treatment. I am far from an admirer of Rehnquist, but I would not hold this against him and I don't think anyone did. In fact, his candor about it was quite admirable..

As for Ginsburg, I've read stories that his recreational drug use continued long after he was a student and that it embraced drugs other than marijuana. How reliable these stories were I do not know. While I wouldn't hold recreational drug use against him, provided it wasn't out of control, I suspect a large number of Americans would. Sorry to hear about his wife's illness.
10.24.2005 6:46pm
Menke (mail):

John Roberts worked for Reagan before working for Bush I. Why isn't he as much a Reagan man as a Bush man? And how could it be that Bush I weeded out all the Reaganites if he hired Roberts?

Furthermore, some of the terminology in this post seems rather loose: "Roberts served as Deputy SG for Bush senior, and was nominated, though not confirmed to the D.C. Circuit by him. And he was of course later nominated and confirmed by W. Miers, of course, is infamously a Bush crony." The President can't confirm anyone.

Over and above all of this, Roberts by reputation was one of the greatest if not the greatest oral advocates before the Court these days. He was eminently qualified for a judgeship. As opposed to, say, Miers.

But I also like Douglas Ginsburg, though I would prefer a younger nominee.
10.24.2005 7:15pm
cdow (mail):
The Bushes have always been leery of Reaganites, probably for reasons of prsonal loyalty that always drive their appointments and because they're big-government conservatives, not like the more libertarian-leaning Reaganites. So no surprise no of those names are on the shortlist.
10.24.2005 8:57pm
cdow (mail):
Someone mentioned Raymond Randolph as a possibility. I think he's a good judge, and a good guy as I had him as a professor in my 1st Ammendment class at GMU. He's probably too old to be considered, though. I think he may be on senior status on the DC Circuit.
10.24.2005 8:59pm
R. Gould-Saltman (mail):
If I were a leftist's Hinderaker, I'd suggest that David's reference: ("I didn't inhale" and whatnot)"

was a thinly concealed politically motivated effort on the part of the vast right-wing blog cabal to slime Bill Clinton, and that the less conspiratorial reference would have been to
"At no time in the last seven years have I used illegal drugs. "

Of course, it could have been that "Didn't inhale. . " was just the funnier line....

Richard Gould-Saltman
10.24.2005 9:00pm