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Ginsburg Seen Giving Court Conservative Bent for Years

October 30, 1987|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — Judge Douglas H. Ginsburg, President Reagan's choice to fill the ninth seat on the Supreme Court, could give the high court a solidly conservative cast for years to come if his advocates' impressions of him and his scant judicial record are correct.

The Administration has failed to change the court's direction on issues such as abortion, affirmative action and school prayer, but the nomination of 41-year-old Ginsburg could lead to conservative victories long after President Reagan leaves office.

As an academic and federal official, Ginsburg has been a proponent of freeing business from government regulation. As an appeals court judge, he sided with business and against unions in several cases decided earlier this year. And it was the crucial, last-minute backing from the most conservative elements in the Justice Department and Senate that helped him to prevail over two other older and more moderate judges under consideration for the nomination.

Only 13 Opinions

Unlike his appeals court colleague, Judge Robert H. Bork, who was defeated after a bitter fight in the Senate, Ginsburg has not written extensively on constitutional issues and has written only 13 majority opinions while on the bench.

Nevertheless, many conservative and liberal legal activists said they were convinced that, if he is confirmed, he will join the high court's conservative bloc. They said they based that conclusion primarily on their conversations with him.

"I think he will prove quite an intellectual force and steer the high court in a more conservative direction on the social issues," said Bruce Fein, a counsel for the conservative Heritage Foundation.

Ginsburg was a Justice Department official during the first Reagan Administration so Atty. Gen. Edwin Meese III and his aides "certainly have a sense of his views" on legal controversies such as abortion and affirmative action, Fein said.

Ginsburg is "one of those young, ideological conservatives they feel comfortable with at the Justice Department," said Nan Aron of the liberal Alliance for Justice.

"At first glance, he appears to be a baby Bork," said Arthur Kropp, executive director of People for the American Way, a liberal group that led the fight against Bork's confirmation.

If confirmed, Ginsburg could not only give conservatives five votes but also would tilt the age balance against the liberal bloc. The court's three most liberal justices are also its oldest members. The youngest of the three--Justice Harry A. Blackmun, author of the 1973 ruling asserting a woman's right to an abortion--is 78. The court's youngest members, on the other hand, are Reagan appointees--Sandra Day O'Connor, 57, and Antonin Scalia, 51.

Ginsburg, like Bork, first gained attention for challenging government antitrust policies, contending that the courts and federal officials were using the laws as a blunt club to attack businesses simply because they were beating their competitors.

Ex-Official of OMB

As an official of the President's Office for Management and Budget, Ginsburg was briefly in charge of the Administration's attempt to limit government regulation by funneling all proposed regulations through his office.

"By prescreening regulations for consistency with Administration policy, we have made a good deal of progress in getting government regulation off the backs of the people," Ginsburg wrote in 1985 in a letter to the editor of the New York Times.

As a member of the District of Columbia appeals court, a body which must decide disputes stemming from governmental regulations, he handled primarily complex, technical cases that involved few constitutional or criminal issues. Nevertheless, Ginsburg did side with other Reagan Administration colleagues in voting in favor of businesses.

Ginsburg's record on the appeals court includes:

--On a 2-1 vote, the court upheld a Federal Mine Safety Commission fine imposed on the Consolidation Coal Co. for a "significant" violation of breathing standards because of high levels of coal dust. Ginsburg dissented, saying that the five air readings taken at the West Virginia mine did not constitute a "pattern" of foul air.

--In August, Ginsburg wrote an opinion for a three-judge panel limiting the rights of teachers in overseas schools for U.S. military personnel to engage in collective bargaining with their employer--the Department of Defense. Broad regulations governing the conduct of all federal employees must prevail over the wishes of the unionized school teachers, he wrote.

--Writing for the entire court, Ginsburg said the Federal Energy Regulatory Commission overstepped its authority in requiring a gas company to exclude some costs for past construction when calculating rates for new service. Two court liberals dissented, saying the ruling gave a "windfall" to the company when it expanded its service.

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