Bennett Calls On Ginsburg to Quit : Education Secretary, With President’s Knowledge, Asks Judge to Withdraw

Education Secretary William J. Bennett, told by President Reagan to “do what you think is right,” called Supreme Court nominee Douglas H. Ginsburg on Friday night to urge that he withdraw following disclosures that he had smoked marijuana.

Bennett warned the federal judge that “the situation is hurting the President.”

Ginsburg’s response was noncommittal.

In public remarks earlier in the day, Reagan had vowed to stand by Ginsburg, declaring that his nominee “was not an addict.”

Support Erodes

By evening, however--after support for Ginsburg had steadily eroded throughout the day--when Bennett called Reagan to inform him of his plans, the President advised him to do as he thought right, Bennett spokesman Loye Miller said.

Miller said Bennett told Ginsburg that he would not be making the call if the President had said anything to discourage him.

The incident, the result of a firestorm of controversy over Ginsburg’s admission a day earlier that he had smoked marijuana on a number of occasions, brought his flagging high court nomination to the brink of demise. Even before his conversation with Bennett, an outspoken conservative and a leader of the Administration’s anti-drug fight, Ginsburg was quickly losing support among conservative Republican senators who are Reagan’s strongest supporters.

“This Administration is conducting a war on drugs,” Sen. Larry Pressler (R-S.D.) said. “It will be very hard to explain support for a person who used marijuana while a professor of law. . . . I would have a very difficult time supporting his nomination.”

Sen. Warren B. Rudman (R-N.H.) said the White House is “going to have to seriously consider” whether Ginsburg’s confirmation remains possible.

Sen. Phil Gramm (R-Tex.) called Ginsburg’s revelations “a very negative factor,” although he said he was not yet ready to vote against the nomination.

Others were more blunt: “You like to think people who are appointed to the Supreme Court respect the law,” said Senate Judiciary Committee member Charles E. Grassley (R-Iowa).

Bennett’s call to Ginsburg appeared to be a classic example of the President’s handling of such politically sensitive internal personnel problems. Reagan, over his years in government, has shown extreme reluctance to dismiss aides or back away from nominees who have become an embarrassment, typically allowing subordinates to put pressure on them to resign or withdraw.

‘Hurts the President’

After calling Reagan, Bennett telephoned Ginsburg at his judicial office here and told him that he felt strongly that the marijuana use was “not right,” according to Miller, who said that Bennett added that Ginsburg’s acknowledgement made the fight to confirm him “not winnable.” To continue only “hurts the President,” Bennett said.

At this point, Ginsburg could “gracefully” withdraw--something he would not be able to do later, the education secretary said.

Ginsburg gave a noncommittal response, saying that he was surprised at Bennett’s recommendation to withdraw. Only hours earlier, the nominee said, he had been at the White House and received encouraging signals.

Bennett responded by saying that he had talked with the President after Ginsburg had his meeting with White House officials.

The conversation marked a turnaround for Bennett, who only Monday had given a strong speech in favor of Ginsburg at a Cabinet breakfast. By Thursday, however, Bennett turned against the nominee after confirming that his marijuana use had occurred when he was a law teacher.

“When he learned that this took place when Ginsburg was teaching students law, something really snapped,” Miller said. “He’s very much a law-and-order man, and feels particularly strongly about drugs in schools,” the spokesman said of Bennett.

Ginsburg admitted Thursday that he had used marijuana during the 1960s and 1970s, telling senators that his use of the drug ended in 1979, when he was a 33-year-old Harvard Law School professor.

Shaky From the Start

Support for Ginsburg’s nomination has been shaky from the start, partly because of his relative obscurity in the legal field. He has been a judge on the U.S. Circuit Court of Appeals for the District of Columbia for barely more than a year and has written very few articles and legal opinions, particularly for a nominee to the Supreme Court.

Moreover, since his nomination only nine days ago, Ginsburg’s support has dropped considerably after a number of potentially damaging disclosures. On Saturday, the Associated Press reported that he had owned roughly $140,000 in stock in a cable TV company at the same time he had taken the lead role in developing the government’s position on a major cable television case.

The next day, news accounts disclosed that Ginsburg’s wife, Dr. Hallee P. Morgan, had performed abortions while she was training to be an obstetrician. That news immediately upset conservatives, who then began to focus on the absence of any statements on the record by Ginsburg indicating his stand on the social issues of importance to them.

Deregulatory Policies

As the week developed, conservatives remained lukewarm on the nomination for that reason, while liberal Democrats began to investigate what they regarded as alarming accounts of deregulatory policies Ginsburg had pushed while at the Office of Management and Budget and the Justice Department.

But it was the disclosure of his marijuana use that harmed him most.

Despite supportive statements from Reagan and from Senate Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.), who called Ginsburg’s past marijuana use “irrelevant,” many Republican senators were angered by the disclosure.

Although few were willing to call publicly for Ginsburg to withdraw, many were critical of his conduct. If Ginsburg’s marijuana use had been “known before he was nominated, he would not have been nominated,” Sen. James A. McClure (R-Ida.) said. The nominee “has to decide for himself” whether to ask that his nomination be withdrawn, he said.

Would Be Denied Job

Under current Administration policies, a person who admitted to the sort of marijuana use that Ginsburg has conceded would in most cases be denied employment as a Justice Department prosecutor. Many senators were deeply troubled by the appearance of applying a tougher anti-drug stance to lower-level applicants than to a Supreme Court nominee, aides said.

Senate Majority Leader Robert C. Byrd (D-W.Va.) said Ginsburg “should give very, very serious consideration” to withdrawing.

Earlier in the day Friday, Reagan, addressing a group of Republican ethnic and minority group leaders, had praised Ginsburg’s “remarkable credentials.” Repeatedly, he referred to Ginsburg’s actions as a “youthful error” that Americans, being “compassionate,” would willingly forgive.

Growing Opposition

But senior Administration officials, sensing the growing opposition, worried about the nomination throughout the day.

Nevertheless, when asked whether the White House was in a fighting mood, one aide replied: “That’s the President. He’s not going to step back.”

In the Senate, however, “the feeling is not good . . . the cloakroom talk is joking,” said a senior Republican strategist who keeps in close contact with senators. “I said to one Republican senator, ‘One more thing, and this is finished.’ He said: ‘I think the one more thing already happened,’ ” the strategist reported.

Bennett made his call to the President after initially attempting to call Atty. Gen. Edwin Meese III. But, after learning that Meese was out of town, he turned to White House Chief of Staff Howard H. Baker Jr. on the suggestion of a Meese aide.

Baker Shares Concern

Bennett reached Baker by car phone, and the chief of staff told him that he shared his concern over the nomination. But Baker pointed out that he himself could not call Reagan with the same impact because he had not supported Ginsburg’s selection at the outset.

Baker said a call from Bennett would have more effect. The education secretary responded: “I’ll take the heat on that,” Miller said.

While Baker led the internal White House opposition to Ginsburg’s nomination, Meese was his chief supporter. For this reason, the drug-use disclosure could prove particularly embarrassing for the attorney general.

On Tuesday, at the first of a series of six White House-sponsored Conferences for a Drug Free America, Meese had told an audience in Omaha that holding drug users strictly responsible for their actions would help discourage demand for narcotics.

Asks Drug Testing

He called for widespread use of drug testing in government and private industry to discourage drug use, saying that “preventing first-time use is critical if we want a drug-free America.”

At a press conference in Boston on Friday, Meese said Ginsburg’s marijuana use “certainly is not a positive factor,” but he said it was not enough to disqualify Ginsburg from office.

Under policies instituted by Meese and former Deputy Atty. Gen. D. Lowell Jensen, all applicants for jobs as federal prosecutors now are required to fill out both a standard FBI background form and a second form that asks detailed questions about past drug use.

Must Be Screened

Those who acknowledge having used marijuana or any other drug must be screened by senior Justice Department officials before being hired.

“Drug use,” including marijuana use, “disqualifies you except maybe as a teen-ager or in your first year of college and never done again,” said Ana T. Barnett, executive assistant to Leon Kellner, the federal prosecutor in Miami. “It’s a complete disqualification if it’s while you’re an adult.”

On his Justice Department employment forms and in his interviews with Meese and Baker, Ginsburg was asked general questions about whether he had ever had a “problem” with drugs or whether anything in his past “may be of embarrassment to the Administration.”

In response to those questions, Ginsburg mentioned the computer dating service he helped run during the 1960s but did not mention marijuana use, Justice Department spokesman Terry Eastland said.

At no time in his interviews with Meese and Baker or his prior government employment forms had Ginsburg ever been directly asked details about drug use, East-land said.

Staff writers James Gerstenzang, Melissa Healy and Douglas Jehl contributed to this story.