3 Groups Probe Ginsburg’s Role in Cable TV Case

The Senate Judiciary Committee, the federal Office of Government Ethics and the American Bar Assn. all are investigating whether Supreme Court nominee Douglas H. Ginsburg violated government conflict-of-interest rules in 1985 when, as a top Justice Department official, he prepared the government’s position in a landmark court case affecting the cable television industry.

At the time Ginsburg prepared the briefs--taking a position the cable industry favored--he had almost $140,000 invested in a cable television company, his largest investment other than real estate.

At issue in the case was the constitutionality of Los Angeles’ cable television franchise policy, which is similar to policies of many other municipalities nationwide.

Defended by Reagan

President Reagan and Administration officials on Monday defended Ginsburg’s actions, saying that his position in the case was in no way influenced by financial considerations. However, leading members of the Judiciary Committee said that they have questions about the episode.

Because Ginsburg, 41, could be a member of the high court well into the next century if he is confirmed and because so little is publicly known about him, investigations of his background and career by the Senate, the press and outside interest groups are expected to be intensive. The cable controversy is the largest of several questions that already have arisen in the first few days after those investigations began.

Reagan, responding to questions after the swearing-in Monday of William S. Sessions as the new director of the FBI, defended his high court nominee, saying that “I’m satisfied with the appointment” and “not at all” concerned about reports of Ginsburg’s cable investments.

White House spokesman Marlin Fitzwater later added that “we do not believe it’s a conflict of interest, or the appearance of a conflict of interest.” Lawyers working with White House counsel A. B. Culvahouse had reviewed the case, Fitzwater said.

However, Sen. Dennis DeConcini of Arizona, a conservative Democrat who holds one of the Judiciary Committee’s key swing votes, said that “the issue has to be pursued.”

“Those who are for Ginsburg will holler and scream ‘lynch mob,’ but this is what the process should be,” DeConcini said. He cautioned, however, that senators should neither “rush to judgment in concluding he can’t serve or dismiss it as another red herring.”

Newspaper Case

On a second issue, committee member Howard M. Metzenbaum (D-Ohio) said he wants to talk with Ginsburg about another case the nominee supervised while he was the Justice Department’s antitrust director--the controversial closing of one of Cleveland’s two daily newspapers.

The Justice Department investigated whether the closing of the Cleveland Press violated antitrust laws but declined to act. Charles Russell Twist, a former Justice Department antitrust lawyer whom Ginsburg fired last year, has accused the department of wrongdoing in the case. A federal district judge last month dismissed a lawsuit that Twist had filed in which he claimed his firing was in retaliation for his accusations.

On a third issue, a spokesman for the National Right to Life committee said the group was “looking into” the background of Ginsburg’s wife, Dr. Hallee P. Morgan, who had performed some abortions while in training to become an obstetrician. The group so far is standing by its previous endorsement of Ginsburg’s nomination but “we’re looking into it more, and we’re putting together something,” spokesman Leonard Dinegar said.

According to Administration officials, Morgan performed two abortions during the first year of her obstetrical residency at Boston’s Beth Israel Hospital and assisted at a third during the second year.

‘Personal Decision’

“She later made a personal decision not to perform these kind of operations, and we have never asked her or the judge their personal views on abortion,” Fitzwater said. A spokesman for the hospital refused to discuss Morgan’s activities there.

The key question in the cable television case is whether Ginsburg violated federal rules designed to prevent government policy-makers from profiting by their official actions.

A lower court had held that the Constitution’s guarantee of a free press forbade Los Angeles from controlling which cable companies operated in which sections of the city. Many cable companies at the time hoped that if the high court upheld that ruling, cable operators could be freed from local rules that limit the profitability of their systems.

Plays Lead Role

The Justice Department, with Ginsburg playing the lead role in its action, urged the high court to uphold at least part of that ruling, a decision that potentially could have affected the value of stock Ginsburg held in a major cable company, Rogers Communications Inc.

Rogers, through a subsidiary, runs cable systems in the South and Southwest, the largest of which is in San Antonio. Ginsburg, in 1983, wrote to Justice Department officials saying that he would avoid involvement in “all matters” that “directly involved” Rogers.

Didn’t Tell Boss

Justice Department rules aimed at avoiding “potential or actual conflicts of interest, or appearances thereof” say that “employees should discuss with their immediate supervisors any problems concerning ethics or professional conduct that they cannot resolve personally.” Ginsburg, however, discussed the case with his deputy, Charles Rule, and then decided not to mention the issue to his boss, then-Deputy Atty. Gen. D. Lowell Jensen.

Harold R. Tyler Jr., chairman of the ABA’s Standing Committee on the Federal Judiciary, which screens judicial nominees for the Senate, said of the cable television incident: “It’s something we have to look into. It’s in our purview.” Tyler added that he is “hopeful the committee can finish before Thanksgiving,” but noted that “hopeful is the operative word.”

Senate Judiciary Committee spokesman Pete Smith said that the committee staff “will review” Ginsburg’s actions independently of the ABA inquiry. And Donald H. Campbell, acting director of the government ethics office, said he has directed his staff “to get all the facts on this situation.”

Justice Department spokesman Terry Eastland, saying he was speaking on Ginsburg’s behalf, insisted that the nominee’s actions were proper because “the value of his holding in Rogers would not be financially affected regardless of the outcome of the case.”

In addition, department sources noted that Ginsburg initially recommended against the government’s getting involved in the case, changing his position after others in the department argued in favor of getting involved.

Staff writers David G. Savage, James Gerstenzang and Michael Wines contributed to this story.