Bennett’s Call Sealing Ginsburg’s Fate Sets Off a Furor

By Julie A. Miller — November 18, 1987 5 min read

Washington--Secretary of Education William J. Bennett played a central role in a distinctly noneducational imbroglio last week when he volunteered to deliver the bad news to Douglas H. Ginsburg, the ill-fated U.S. Supreme Court nominee who had admitted having used marijuana.

Mr. Ginsburg acknowledged Thursday, Nov. 5, that he had smoked the drug while a college student and “on a few occasions” in the 1970’s. On Nov. 6, Mr. Bennett talked with the President and then urged the nominee, in a telephone call, to withdraw from consideration. On Nov. 7, he did so.

What happened between those events and in their aftermath constitutes a classic Washington tale, featuring press leaks that misfired, public statements that appeared to contradict private actions, and panic in the face of political embarrassment.

Washington political hands differed in their assessments of the role played by Mr. Bennett. They variously described him last week as either a willing Administration “spear carrier,” a loyal conservative who took the heat for his President, a dogmatic anti-drug crusader, or an opportunist who shoehorned himself into a situation that did not concern him.
The White House press office could not be reached for comment, but spokesmen have reportedly maintained that the President never faltered in his support for Mr. Ginsburg.

Mr. Reagan’s spokesman, Marlin Fitzwater, reportedly denied the President approved Mr. Bennett’s call to the nominee. He accused Loye W. Miller, the Secretary’s spokesman, of misleading reporters about the telephone discussion and about the Secretary’s importance in the controversy’s outcome.

On Nov. 9, according to the Associated Press, the President himself reacted angrily to reporters who suggested that Mr. Bennett had been his messenger, saying: “All of that was a distortion, the way that story was told.” Mr. Reagan said Mr. Ginsburg withdrew of his own accord, because of the storm of controversy that raged around him.

Senator Orrin G. Hatch, Republican of Utah, charged at a press conference that “gutless wonders” at the White House had surreptitiously pressured Mr. Ginsburg to withdraw. Mr. Hatch also thinks Mr. Bennett was “out of line” to step into a judicial controversy, according to a spokesman for the Senator, who is a ranking Republican on the Senate Judiciary Committee.

Mr. Bennett has refused to discuss the Ginsburg affair with reporters. But Mr. Miller gave the following account:

While in Chicago on official business, Mr. Bennett heard the news about Mr. Ginsburg’s admission. When he returned on the afternoon of Friday, Nov. 6, he called his friend, Terry Eastland, director of public affairs at the Justice Department, to get the details.

Mr. Eastland told him that the nominee had admitted using marijuana as late as 1979, when he was a law professor at Harvard University. This deeply disturbed the Secretary, Mr. Miller said, because it happened while Mr. Ginsburg was a teacher--a role model--and “teaching, of all things, the law.”

Mr. Bennett declined through Mr. Miller to discuss last week whether occasional, past drug use should disqualify people for public office, or whether teachers should be held to a higher standard than others.

But he told the Associated Press--in language echoed by Mr. Miller--that “youthful indiscretions should not be a bar to public office and public trust. The question is when, what were the circumstances, what were your responsibilities?”

In answer to a question about whether he had ever tried marijua8na, something several politicians have confessed to in the past week, Mr. Bennett reportedly said: “I will not join this procession of confessors. If I have any confessions to make, I will make them to a priest. I will stipulate for the record, however, I was young.”

In the past, Mr. Bennett has flatly denied any use of illegal drugs. Mr. Miller reiterated that denial in response to a reporter’s direct question.

Knowing the extent and context of Mr. Ginsburg’s drug use, Mr. Miller said, the Secretary decided that someone must ask the nominee to withdraw, both because of the gravity of his indiscretion and because his appointment to the High Court was “not winnable” and was “embarrassing to the President,” Mr. Miller said.

After failing to reach Attorney General Edwin Meese 3rd, generally credited with persuading the President to nominate Mr. Ginsburg, Mr. Bennett spoke with Howard Baker, the White House chief of staff. Mr. Baker “shared the Secretary’s concerns,” according to Mr. Miller, but said he could not be the one to speak with Mr. Reagan, since he had argued against the nomination.

Mr. Bennett said, “I’ll take the heat on that,” and called the President, Mr. Miller said.

Mr. Reagan, who had asserted his continued support for the embattled nominee that morning, “neither encouraged nor discouraged” the Secretary from urging Mr. Ginsburg to withdraw, Mr. Miller said, but told him: “Do what you think is right.”

“I don’t know whether the President said that or not in terms of a direct quote,” Mr. Fitzwater reportedly said. “But I do know that he did not intend to acquiesce or give direction or approve or in any way endorse those actions.”

Mr. Miller stands by his account. “If [Mr. Bennett] heard the least bit of discouragement, he would not have made the call” to Mr. Ginsburg, he said.

Furthermore, he said, White House aides expressed gratitude for Mr. Bennett’s actions. One aide to Mr. Baker said: “I love you. I’m down on my knees to you,” Mr. Miller recounted.

He added that the press was initially apprised of the Secretary’s role by White House staff. One of the reporters who received those tips said he was indeed told of the Bennett-Reagan conversation by a White House aide, and that a second aide confirmed Mr. Miller’s contention that the President approved of his calling Mr. Ginsburg.

Mr. Miller also noted that William Bradford Reynolds, chief of the Justice Department’s civil-rights division, called Mr. Ginsburg shortly after Mr. Bennett with a similar message, but has not received the same attention.

Mr. Eastland, the Justice Department’s public-affairs director, confirmed the Reynolds call, and commented: “This is the world of Washington politics, where fair is foul and foul is fair.”

A version of this article appeared in the November 18, 1987 edition of Education Week as Bennett’s Call Sealing Ginsburg’s Fate Sets Off a Furor