He May Be Harder to Reject : Bork’s Opponents Greet Replacement Suspiciously

Two senators who led the successful fight against the Supreme Court nomination of Robert H. Bork and the coalition of liberal and civil rights groups that provided the troops greeted President Reagan’s nomination of 41-year-old federal appeals court Judge Douglas H. Ginsburg with suspicion and skepticism.

Democratic Sen. Alan Cranston of California called Ginsburg a “surprising choice,” given his youth and comparative inexperience. And Sen. Edward M. Kennedy (D-Mass.) vowed that, if Ginsburg’s “philosophy about constitutional rights and liberties of the American people is as extreme as Judge Bork’s, I will do all I can to see that this nomination is not confirmed.”

But Reagan’s choice may pose some difficult and potentially divisive problems for his potential opponents. In particular:

--Ginsburg does not carry with him the mass of controversial writings and legal opinions that haunted the outspoken Bork.

--The civil rights concerns that mobilized black voters and exerted anti-Bork pressure on conservative Southern Democrats do not seem to apply to Ginsburg, who has no public record of opposing civil rights laws; similarly, the explosive right-of-privacy issue that hurt Bork may not apply.

--Ginsburg would be the first Jewish member of the high court in 18 years, a fact that could win him powerful allies and erode the coalition that opposed Bork.

In tacitly acknowledging the problems, Kennedy said he was worried that, in Ginsburg, Atty. Gen. Edwin Meese III may have tried to find “a Judge Bork without a paper trail.”

Determining Ginsburg’s views could prove difficult, and waging a confirmation battle over them could be even more so.

Accordingly, opponents of the new nomination are expected to focus instead on Ginsburg’s lack of judicial experience, the narrowness of his legal background and his youth. He has served as a judge for only 54 weeks, writing only 13 opinions. As a lawyer, he has done little outside the highly specialized areas of antitrust and government regulation of business. And, although three others have been nominated at younger ages, the last such nomination occurred seven years before Ginsburg was born.

ABA Evaluation

Several potential opponents said Thursday that they are hoping the American Bar Assn.’s process of evaluating judicial nominees will provide them with an opening.

Last year, when Ginsburg was nominated for the U.S. Circuit Court of Appeals here, his relative lack of experience led the ABA to rate him “qualified,” the lowest of three passing grades. A similarly tepid ABA rating this time could kill the nomination, these prospective opponents believe.

Some conservatives agreed. “The difficulty will be getting a positive ABA rating,” said Bruce Fein, a Supreme Court expert at the conservative Heritage Foundation. “If the ABA gives him an adverse rating, that would be the kiss of death.”

“This will be the acid test for the ABA,” said an aide to one senior member of the Senate Judiciary Committee, which will have the initial job of reviewing Ginsburg’s qualifications. “It’s hard to imagine their saying he’s well qualified now when he wasn’t a year ago.”

Initially, opposition to Ginsburg developed not so much because of his record but because of his friends.

Conservative Supporters

Senate Democrats did not strongly oppose Ginsburg at the beginning of the week, when his name first surfaced as a leading candidate. But, as Ginsberg emerged during the last three days as the “conservative candidate” for the court--the favorite of Meese, Meese’s controversial aide William Bradford Reynolds and conservative senators such as North Carolina Republican Jesse Helms--Democrats rapidly concluded that Ginsburg’s friends must know something about him that his opponents did not know.

Conservatives who strongly supported Ginsburg gave additional weight to that conclusion Thursday. “We’re very pleased at the nomination, in fact, we’re tickled pink,” said a Republican Senate aide. “He’s worked with a lot of us for a long time, we’ve talked with him, worked with him . . . you just have to know Doug.”

What potential opponents of the nomination say they plan to do between now and the beginning of Ginsburg’s confirmation hearings is try to find out just what it is that those who “know Doug” think they know.

Although Ginsburg has been through prior Senate hearings for his current post and for his previous job as assistant attorney general in charge of the antitrust division, those investigations were cursory compared to the scrutiny he will now receive. When he was nominated for the court of appeals, for example, Ginsburg was asked a total of three questions.

Views Unknown

This time, the hearings are certain to be very different, but, if Ginsburg can clear the experience hurdle, a case against him may be difficult to frame. On issues ranging from civil rights to privacy to criminal law, Ginsburg’s views are publicly unknown.

For potential opponents, “it’s hard to make a dramatic case out of ignorance and uncertainty,” said Laurence Tribe, professor of constitutional law at Harvard Law School, where Ginsburg taught for six years. Tribe, who was a leading adviser to senators who opposed Bork, said he did not know what position he would take on Ginsburg.

The new nominee has, for example, no record of having ever spoken or written about civil rights laws. Nor does he have any known views on right of privacy or abortion.

And basing a campaign on a nominee’s privately expressed views on such issues could be a formidable job.

Another potential set of questions could raise even more ticklish problems for both sides on the nomination. Many Southern senators said that in opposing Bork they were responding not only to black constituents’ fears on civil rights but also to white constituents with “cultural” concerns. Many found the bearded Ivy League professor “exotic” or “strange,” as Sen. Howell Heflin (D-Ala.) said.

Ginsburg might raise similar feelings, but several liberal activists said Thursday that they would be uncomfortable seeing “life-style issues” becoming the center of a fight over a Supreme Court nominee.

That discomfort would be heightened in Ginsburg’s case because of fear that such arguments could veer into religious prejudice.

Staff writer Josh Getlin contributed to this story.