Courting Disaster

FEW THINGS during the past seven years of Reagan gave this liberal more joy than watching the president's second Supreme Court nominee--selected precisely because of his lack of a substantive past--vanish in a puff of smoke. I relished every minute as the president hoisted himself on his own anti-drug, anti-crime petard. Thanks to Reagan's demagoguery, another bitter Senate confrontation battle was avoided.

Now, however, the intoxication has worn off, and the hangover has set in. The Ginsburg defeat came cheaply, yet it may cost dearly.

When Robert Bork testified before the Senate Judiciary Committee this September, he argued that the Constitution guaranteed no right to privacy. Any reading which found such a right inevitably would be far too open-ended and expansive. After all, he said, where does this alleged right to privacy end? Does it entitle you to use cocaine in private?

The Senate wisely rejected Bork and his cramped view of the rights protected from intrusions of the majority. Yet in losing the battle, Bork may have won the war. His successor's withdrawl represents a reaction against the increasing scope of private rights and answers Bork's last query with a resounding no.

MANY CRITICS of Ginsburg, of course, would argue that privacy is not the crux of the issue here. The Ginsburg "scandal," after all, raised questions not only about the nominee's use of dope, but also about his integrity. Smoking the stuff may be a sin, but lying about it on a background check form when nominated for the Court of Appeals is what's cardinal. Had Ginsburg not done that, his nomination may very well have survived.

The situation is analogous to the Gary Hart adultery "scandal." It's not the fact that he couldn't keep it in his pants that disqualified him for the presidency. The real problem, the common wisdom had it, was that he lied about his extra-marital activities.

Integrity is certainly the most important of a public servant's requisite virtues, and strictly speaking Ginsburg and Hart failed on this account. The fundamental question raised by the Ginsburg and Hart affairs, however, is not truthfulness versus untruthfuless. It goes much deeper, asking whether any person or agency has the right to ask about entirely private matters in the first place. For if such probing is inappropriate, the ultimate truthfulness of Ginsburg's--or any other candidate's--response must be seen as entirely irrelevant. A public figure has, in essence, the right to lie about or fudge questions that should never have been asked in order to protect his own privacy.

And it is perfectly clear that Ginsburg should never have had to answer questions about what he smoked and when. True, drugs are illegal, and it can be argued that drug use as a law professor reveals a basic contempt for law. But many, many activities and forms of behavior that take place in private are technically illegal, and if a nominee can be forced to disclose whether he has ever gotten high, there is no limit to how far his privacy can be invaded.

For if we feel compelled to ask about drugs, why stop there? Why not inquire about other forms of vice and lawlessness? Rather than focusing on drug use a decade ago, perhaps we should have investigated Ginsburg's respect for law as manifested in his private life during the past year, while he was a federal judge. It certainly would have given us a better picture of this new-fangled, post-pot, law'n'order Ginsburg.

Following this logic, he should have been asked if, while serving on the Court of Appeals in the District of Columbia, he had ever engaged in oral sex or any other form of sodomy--which is, you know, just as illegal in D.C. as marijuana. And if he said no and his wife were to come out later and say yes, would that be a black mark on his integrity, disqualifying him for further public service?

PUBLIC SERVANTS should only be questioned about issues relating to their public careers. There must be a strict separation between the home and the state, not only for private individuals, but for public figures as well. As long as they don't create a clear and present danger to his job performance, a public figure's personal tastes and habits are entirely irrelevant and should not mire the political system and the political process.

Judicial nominees, then, should not be required--as they presently are--to disclose whether they have ever used drugs. And if they are, they have an ethical obligation--as defenders of the people's rights against overzealous majorities and witch-hunters--to refuse categorically to answer, no matter how little they have to hide.

The right to privacy which Americans vindicated a month ago must not be chiseled away. Now that we have rejected Bork, we must now reject Borkism in all its manifestations. Unless things change radically, Ginsburg's defeat may very well signal the vindication of Bork's principles.