Supreme Court

"I Don't Think We've Had Any [Constitutional] Crises in My Lifetime": Judge Douglas H. Ginsburg

The legendary jurist and champion of "originalism" who withdrew his name from Supreme Court consideration weighs in on Donald Trump's impeachment, Brett Kavanaugh, Neil Gorsuch, and his upcoming PBS series on the Constitution.

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Supreme Court nominee Robert Bork's 1987 confirmation hearings "changed everything, maybe forever," according to lawyer and Supreme Court blogger Tom Goldstein, because they "legitimized [the] scorched-earth ideological wars" that have since become the norm.

After the Senate rejected Bork, President Reagan turned to a 41-year-old judge named Douglas H. Ginsburg, a recent appointee to United States Court of Appeals for the District of Columbia Circuit. Ginsburg, unlike Bork, didn't have a long judicial record for the Senate to pick over. 

It wasn't to be. After admitting that he'd smoked pot once in the 1960s and "on a few occasions in the '70s," Ginsburg withdrew his name from consideration. Justice Anthony Kennedy ended up filling the vacancy.

Over the next three decades, Judge Ginsburg built a reputation as one of the most influential and principled champions of "originalism," a legal theory that emphasizes close adherence to the text of the law and the explicit intentions of the legislators at the time laws are passed. Now a senior judge on the DC appellate court and a professor at George Mason University's law school, Ginsburg stars in the forthcoming PBS series A More or Less Perfect Union, his "personal exploration" of the history and future of the Constitution in American life.

Nick Gillespie sat down with Ginsburg to discuss his new show and its companion book, Voices of Our Republic; why the impeachment proceedings against President Donald Trump are in no way a "constitutional crisis"; his opinions of Neil Gorsuch and Brett Kavanaugh; whether it's possible to rein in the administrative state; and why he has never regretted pulling his name from Supreme Court consideration 32 years ago.

Camera by Jim Epstein. Edited by Ian Keyser and Meredith Bragg.

Photo credits:
CreditKen Cedeno/SIPA/Newscom
Oliver Contreras/Sipa USA/Newscom

Music from https://filmmusic.io
"Lightless Dawn" by Kevin MacLeod (https://incompetech.com)
License: CC BY (http://creativecommons.org/licenses/by/4.0/)

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  1. I pretty much agree with this, most of the things we see as “Constitutional Crisis” seem to be perpetual hyperbole by our media desperate for clicks or our members of our political class thirsty for attention. The real issue I see in our current political atmosphere is the fact congress has abdicated so much of shit it should be doing directly ie directly controlling the purse strings and more importantly passing articles of war to the executive branch. Also the political class is by passing the constitution by punting important issues to an increasingly important judiciary branch. In both cases if Congress really wanted to it could reign in this type of behavior tomorrow but unfortunately for people who support gridlock and the gov staying out of our day to day lives this hasn’t been the case.

    1. Yes. A constitutional crisis would be if a President refused to leave office or a State tried to leave the Union or something like that. We have never seen anything approaching a real constitutional crisis since the Civil War. The closest since would probably be FDR’s court packing scheme but even that is a stretch.

      1. I think there is a legitimate issue with the way the executive branch bureaucracy leverages political information and dirt on members of its opposition. But that is the natural state of any state actors and will always occur regardless of how the bureaucracy is structured. It’s up to the politicians to have the stomach to reign that in and control it.

        1. and as we see with Trump they aren’t exactly our best and brightest running these organizations.

      2. Even the FDR thing wasn’t a constitutional crisis. The court’s composition isn’t in the Constitution, so having 9, 1, or 113 isn’t a crisis.

      3. Aww come on John. Hillary CLinton forgetting to update her settings on her iPhone, and Obama putting his feet up on his desk all were examples of constitutional crisii– at least according to the tenor of the comments here on the Reason comment page. Oh, and let’s not forget BENGHAZII!!!. Oh my God… that one was horrible!

        1. Four dead Americans, who were abandoned by their government, because the current administration was concerned about optics, heading into an election. Yeah, that’s awful that the Obama administration took heat for that. /sarc

      4. If the impeachment went through, and Trump was voted out, do you think he would step down? He would not, and there would be an instant constitutional crisis. Not saying it would happen, but I don’t put it past Trump if he did.

        1. um, assuming facts not yet in evidence, much?

  2. “Judge Ginsburg built a reputation as one of the most influential and principled champions of “originalism,” a legal theory that emphasizes close adherence to the text of the law and the explicit intentions of the legislators at the time laws are passed.”

    What’s that? You can’t say the Constitution means whatever you want it to in order to force people to do what you want them to? Where’s the fun in that?

  3. upcoming PBS series on the Constitution

    Uh oh.

    1. Milton Friedman was on PBS, too, so let’s adopt a wait-and-see attitude…

      https://miltonfriedman.blogspot.com/

  4. If there hasn’t been a constitutional crisis in his lifetime, and he was 41 in 1987…that means there hasn’t been a constitutional crisis since about 1946.

    How far do we have to dilute the term “crisis” so that the behavior of the states and feds has never been a constitutional crisis during that time?

    (Here’s where I say “OK, boomer,” right?)

    1. It’d be interesting to see what people consider the biggest constitutional crisis of post WWII era is.

      Do we think it was the hearings of the House Committee of UnAmerican Activities in the early 50s? Was it the brief period of time that Kennedy was incapacitated from his wounds before he died? Was it Watergate? Roe V. Wade? The Senate’s “Nuclear Option” on judicial appointees in 2013?

      1. Roe v. Wade is a pretty good candidate.

        It’s like a military dictator taking power in a coup and proceeding to kill people. Pinochet did it the same year as Roe, and that’s considered a constitutional crisis even though there were actual communists who needed to be fought.

        How is is different for the judiciary to stage a coup and rewrite the laws to deny protection to the unborn?

      2. A constitutional crisis is a breakdown of the constitution, where the constitution no longer has any weight of law. We have had instances that could have led to constitutional crises, but none of your examples constitute a constitutional crisis.

        That something is serious does not make it a crisis. That something is controversial does not make it a crisis.

  5. Judge Douglas Ginsburg sounded okay until he discusses his concern over the marijuana industry in states that “legalized” marijuana and how that conflicts with federal law.

    Some Originalist this guy is. He does not question the utter lack of Constitutional authority for the Controlled Substances Act banning products. He takes it on face value.

    What hope do Originalists have if some judge supposedly on their side is afraid to strike down unconstitutional drug statutes.

    1. Maybe marijuana *is* a gateway drug, because it sounds like Ginsburg has been smoking crack.

    2. What hope do they have? Dude, this prettymuch describes most so-called originalists. Most originalists/textualists are total hypocrites when it comes to drugs and other things they don’t like.

      Scalia was a so-called “originalist” too, and he would’ve NEVER supported ending the Controlled Substances Act because of it’s unconstitutionality. Not on your fucking life.

      Ginsburg is the rule, not the exception.

  6. Can you imagine 2 Ginsburgs on the court? It would be too obvious, I think.

    1. One of the Ginsburgs had his nomination torpedoed because he smoked the chronic.

      The other Ginsburg got confirmed with virtually-unanimous Republican support after championing most lefty causes under the sun, including killing babies in the womb – and she continues to champion those causes on the Court.

      And the first Ginsburg doesn’t even get Notorious DHG bongs and other memorabilia named after him.

      1. One of the Ginsburgs had his nomination torpedoed because he smoked the chronic.

        Remember SNL making fun of him for it? Good times.

      2. I think both Ginsburgs should have been confirmed.

        RBG because she is obviously qualified, and Bill Clinton had the right to nominate her.

        Ditto Douglas and Reagan. That’s how things should work.

        As Barr pointed out in his speech last week, the Senate had to invoke cloture 4 times in GWB’s presidency, 14 times in Obama’s, and 236 times in Trump’s. That’s not how it should work.

        Where you

        1. “RBG because she is obviously qualified,”

          Qualified? By proclaiming that the Constitution should be putty in the hands of activist judges to create (say) a right to abortion?

          If you’re hiring someone to drive an Uber, you don’t want someone whose philosophy says that the preferences of the customer don’t matter, they should all be driven to Carnegie Hall. That’s where philosophy affects competence. So if a would-be judge thinks a court should steer the law away from its textual and intended meaning, that’s a disqualification.

          “Bill Clinton had the right to nominate her.”

          Of course he did, just as the Senate had the right to reject her, but didn’t.

          “As Barr pointed out in his speech last week, the Senate had to invoke cloture 4 times in GWB’s presidency, 14 times in Obama’s, and 236 times in Trump’s. That’s not how it should work.”

          Why not? If Democrats sincerely believe that a nominee would guide the law in the wrong direction, they should filibuster the nominee if the rules allow it. Thanks to the Democrats themselves, the rules no longer allow filibusters, so there’s that.

          1. (Technically, I think filibusters are allowed in theory but a majority can invoke cloture, so it’s not really a filibuster as we’ve been accustomed to think of the concept)

  7. All over the UT campus were T-shirts boasting “I smoked a joint with Judge Bork!”

  8. I have to totally disagree with Ginsburg on this. I’m not quite as old as Ginsburg but large part of my life we’ve been in 2 major constitutional crises.

    The first is an open conspiracy of all 3 branches of government to ignore the 2nd amendment, that was belatedly and insufficiently addressed by Heller and MacDonald, and it is still a crises where in large parts of the country like California and New York the Constitution is run over roughshod by the courts, legislatures and the police.

    The second is the upsurpation of power by the Federal Government going way beyond the powers granted by the Constitution. Sure there is occasional pushback, like Lopez, but both parties routinely propose legislation that asserts powers that Congress doesn’t have, like gun free zones or health care mandates.

    But I can see his point, it’s not a crises if you either think those constitutional issues don’t matter, or if you’ve already given up.

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  10. This dude is a head. Captain Toke. A shame he withdrew. It would be great to have Scotus with at least one admitted bong ripper.

  11. He was born after FDR kicked the bucket, so he’s probably right.

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