Ginsburg, Douglas Howard

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Ginsburg, Douglas Howard

Douglas Howard Ginsburg became the chief judge of the U.S. Court of Appeals for the District of Columbia in 2001 after serving as an associate judge since 1986. In 1987, his nomination to the Supreme Court of the United States was derailed by questions about his inexperience and about his personal life.

Ginsburg was born May 25, 1946, in Chicago. He grew up in Chicago, where he graduated from the prestigious Latin School in 1963. After high school, he entered Cornell University, in Ithaca, New York, but he left college in the mid-1960s to open the nation's first computerized dating service. After achieving success with the company, which was named Operation Match, Ginsburg sold his interest and returned to Cornell, earning his bachelor's degree in 1970. From there, he went to the University of Chicago Law School, where he received his doctor of Jurisprudence degree in 1973.

"It is a cardinal principle of our system of criminal law that the facts are settled by the trier of fact, be it a jury or a judge, and are not ordinarily to be determined by a reviewing court."
—Douglas Ginsburg

Ginsburg served as a law clerk to U.S. circuit judge Carl McGowan from 1973 to 1974, and to Justice Thurgood Marshall, of the U.S. Supreme Court, from 1974 to 1975. In 1975, he became an assistant professor of law at Harvard Law School, and in 1981, he was promoted to the rank of professor. He left academia to become a deputy assistant attorney general for regulatory affairs in the U.S. Department of Justice, Antitrust Division, in 1983. A year later, he was appointed administrator for information and regulatory affairs of the Office of Management and Budget, where he served for one year before returning to the Antitrust Division of the Justice Department in 1985. In 1986, President ronald reagan named him a judge of the U.S. Court of Appeals for the District of Columbia Circuit. At this point in his career, Ginsburg seemed to be settling into a predictable future on the federal bench. But there was to be a short detour along the way. In 1987, to the surprise of almost everyone, Reagan nominated him to replace retiring Justice lewis f. powell jr. on the U.S. Supreme Court.

Ginsburg's nomination followed months of intense, sometimes acrimonious questioning by the Senate Judiciary Committee of Judge robert h. bork, Reagan's first nominee. During these hearings, the Senate had departed from its traditional advice-and-consent role and closely questioned Bork on philosophical and doctrinal matters never before addressed in confirmation proceedings. Bork had a long paper trail, with years of scholarly writings that revealed him to be a strict, conservative constructionist on constitutional matters, just the type of Justice Reagan wanted on the Court to carry his vision of judicial restraint into the next century. However, members of the Senate, openly concerned with his conservative political ideologies, eventually rejected Bork's nomination.

Stung by the Senate's rejection of Bork, Reagan and his aides were determined to find a nominee who would fulfill their requirement of judicial restraint but who had no "history" that would make their choice vulnerable to attack. They thought they had just the person they needed in Ginsburg and, although Ginsburg had less than a year's experience as a judge, Reagan nominated him for the vacancy.

Ginsburg's nomination ran into difficulty almost immediately. Senators raised the obvious issues of his youth and inexperience and voiced concern about how his scanty judicial record made him a tabula rasa on constitutional matters. A conflict-of-interest question was raised when newspapers reported that at the Justice Department he had handled a major case involving the cable TV industry while he held a $140,000 investment in a Canadian cable TV company. Then, too, it began to look as if he might be opposed by some conservatives because his wife, a physician, had reportedly performed some abortions. The death knell for Ginsburg's nomination sounded when he admitted that he had smoked marijuana "on a few occasions" while he was a student and during his early days on the faculty at Harvard.

Faced with the embarrassment of backing a nominee who had admitted illicit drug use, the White House dispatched Secretary of Education William J. Bennett to urge Ginsburg to withdraw his name from consideration. Ginsburg complied, issuing a statement in which he said that the scrutiny of his personal life would continue to draw attention away from more relevant questions. "My views on the law and on what kind of Supreme Court justice I would make have been drowned out in the clamor," he stated. He commended Reagan and his wife, Nancy Reagan, for "leading the fight against illegal drugs," adding,"I fully support their effort and I hope that the young people of this country, including my own daughters, will learn from my mistake and heed their message."

The swift and unfortunate demise of Ginsburg's nomination was a sobering lesson for the Reagan administration. The president reacted by nominating an experienced and uncontroversial moderate, Judge anthony m. kennedy, who was quickly and easily confirmed. Many feel that the Senate's handling of the Bork and Ginsburg nominations set a precedent for later investigations of presidential appointees and established a breadth and depth of scrutiny that some say are outside the scope allowed by the Constitution. The Senate continued its method of scrutiny with Clarence Thomas in 1991.

After his withdrawal, Ginsburg returned to his position on the District of Columbia Circuit. In July 2001, after serving as an associate judge for nearly 15 years, he ascended to the position of chief judge. Ginsburg has also maintained an active interest in Legal Education, serving as a part-time instructor at Harvard University, Columbia University, the University of Chicago, and George Mason University in Virginia. He teaches courses in antitrust, administrative law, and jurisprudence. In addition, Ginsburg is the author of numerous legal casebooks and other texts, focusing primarily upon antitrust and economic regulation.

Ginsburg is married to Hallee Perkins Morgan Ginsburg, and has three children. He is a member of the Illinois State Bar Association, the Massachusetts State Bar Association, the American Economic Association, and the Honor Society of Phi Kappa Phi. Ginsburg is also an honorary member of the District of Columbia Bar Association.

Further readings

Groner, Jonathan. 2001. "Edwards Passing the Torch." Legal Times (June 11).

Krauthammer, Charles. 1987. "The Ginsburg Test: Bad Logic." Time (November 23).