The Volokh Conspiracy

Supreme Opportunity Cost: Sometimes we overly diminish the role of individuals when assessing historical developments. That Ronald Reagan was in a position to be President when he was probably changed the direction of the Republican party (and the US) for decades. Because of his distinctive personal characteristics, Bill Clinton was able to get elected when other Democrats of similar views are not. As President, he also signed on to a welfare reform bill—and brought along enough Democrats in Congress—that contains far more radical reform than anything President Bush has managed to achieve. In short, individuals matter.

I have long bemoaned the opportunity cost of the aborted Supreme Court nomination of Judge Douglas Ginsburg of the D.C Circuit Court of Appeals. Nominated in the wake of Robert Bork's defeat, Ginsburg was pressured (rumor has it by then-Drug "Czar" Bill Bennett) to withdraw his name when it was disclosed by Nina Totenberg (whose speaker's agent brags about it here) that he had smoked marijuana in the presence of law students when he was a professor at Harvard Law School. Anthony Kennedy was nominated in his place.

What happened to Judge Ginsburg was a tragedy for liberty, and a terrible injustice to a very decent man. Without casting any aspersions on Justice Kennedy, I really wish that now-Chief Judge Ginsburg, the most libertarian Supreme Court nominee in the modern era, had been on the Court these past 15 years. At any rate Ex Post yesterday posted a nice talk by Judge Ginsburg.

Rumor Update: This is an awkward post to write. In an earlier post, I mentioned in passing a rumor that "then-Drug Czar" Bill Bennett pressured Judge Douglas Ginsburg to withdraw as a Supreme Court nominee after it was disclosed that he had smoked marijuana as a law professor in the presence of students. Presumably in an effort to cast doubt on the rumor, John Podhoretz emailed Glenn Reynolds (not me) to say that Bennett was Secretary of Education at the time, not Drug Czar. Although the unconfirmed story I heard had many more details than I reported, it did not include the fact of Bennett's position in the Reagan administration. I added that erroneous detail myself for context. So the inaccuracy of that fact does not go to the accuracy of the story I was told itself. But the awkwardness of posting this clarification now is that this was, after all, a story. I have no personal knowledge of its accuracy. But it was told to me close in time to the event by someone who I think would have been in a position to know its truth (not Judge Ginsburg with whom I have never discussed this), else I would not have related it, even in passing, in the first place. And if Podhoretz is correct that "At the time, in 1987, it was a lead-pipe cinch that any public figure who had to admit to doing illegal drugs was in BIG trouble," as well he may be, then why is it difficult to believe that Bennett would approach Judge Ginsburg to get him to withdraw? Especially given what we now know of Bennett's interest in drug prohibition. In light of Podhoretz's observation, it is interesting that the story I heard contained another detail: When informed of Judge Ginsburg's withdrawal, President Reagan expressed his disappointment as he was preparing to fight for confirmation. But as I said: it's only a story.