Ginsburg would bring business background to Supreme Court. Former antitrust chief staked out free-market approach to mergers
A broad range of groups with a stake in the United States Supreme Court's economic decisions will have their eyes fixed on the Senate Judiciary Committee over the next couple of months. These groups - from Wall Street investment banks to environmental groups to unions concerned about workplace safety - would likely be the first to feel the effect of court nominee Douglas Ginsburg, if he is confirmed.
``Doug will come to the court with a leg up in business and economic regulation,'' says Hal Scott, a former colleague at Harvard Law School. His background will give him an ``influential voice'' among the other justices, who have less experience in the economic arena, he says.
It is likely to be a controversial voice. Judge Ginsburg has not left much of a paper trail for the Senate to scrutinize. But court watchers are making tentative assessments, based on his somewhat sparse legal writings and his tenure at the Office of Management and Budget (OMB) and the Justice Department. He is best known for his ``free market'' philosophy in antitrust matters. ``While there may not be the depth and breadth of controversy that there was in the Bork case, there is certainly a controversy about Ginsburg's lack of enforcement of antitrust laws,'' says Robert Harris, a business professor at the University of California, Berkeley.
As head of the Antitrust Division in 1985 and 1986, Ginsburg spearheaded the push for ``antitrust reform,'' an easing of rules on mergers designed to help US companies compete better against big foreign conglomerates. He oversaw a wave of mergers and acquisitions - a hallmark of the Reagan Justice Department, which has challenged only 29 mergers out of more than 8,000 submitted.
In an interview with the Monitor last year, Ginsburg said the government is ``the least capable institution'' to decide which mergers would make for more efficient and competitive companies.
James Ponsoldt, an Antitrust Division lawyer during the Carter administration, says it's ``hard to tell'' whether Ginsburg followed administration policy ``because he agreed with it or [because] he was instructed'' to follow it. He also points out that Ginsburg was quite vigorous in attacking the problem of price fixing on construction projects such as state roads.
Ginsburg is expected to face Senate questioning, however, about his tenure as assistant attorney general. In particular, the nominee may be asked about his decision to participate in a cable television case at a time when he had almost $140,000 invested in a cable company.
Ginsburg supervised the drafting of a legal brief by the administration supporting First Amendment protection for cable television operators. A Justice Department statement Sunday said that Ginsburg decided to participate in the case because he did not hold stock in any company involved in the case and because the value of his holdings would not be affected by the outcome.
The court will also have to deal with deregulation cases, the biggest dealing with banks' quest for new powers in the securities industry. On deregulation, Ginsburg's views are not as clear.
When Ginsburg oversaw regulatory review programs at the OMB in 1984 and 1985, he used a controversial ``cost-benefit'' approach in deciding whether industries should be regulated. His economic analysis touched on everything from the environment and worker safety, to food, drugs, and traffic laws, says Robert Litan, an economist at the Brookings Institution. Generally, Dr. Litan says, Ginsburg's final tallies favored business, not the groups that wanted more regulation.
For example, in 1984 the Environmental Protection Agency (EPA) was figuring out how much it would cost industry to phase out certain asbestos products. That cost was to be weighed against the ``benefit'' of saving someone from asbestos-related cancer.
Ginsburg suggested the EPA ``discount'' the value of a life since a person could live 30 to 40 years before being affected by asbestos. The result was, when the cost-benefit tally was done, the cost to industry would be much greater than the benefit of (discounted) lives saved. The EPA balked at that analysis, and after congressional pressure, the EPA got its way.
Even critics, however, are not sure whether Ginsburg is an extreme deregulator or just the person carrying out his predecessors' policies. Gary Bass, director of the liberal watchdog group OMB Watch, notes that the cost-benefit approach ``was not Ginsburg's brainchild.'' James Miller III, who now heads OMB, initiated it when he was in Ginsburg's position in 1981.
But, Mr. Bass says, Ginsburg's ``antiregulation'' record at OMB ``shows his strong bias toward the idea that Congress and the federal government have gone too far.''
As a Supreme Court justice, that general philosophy of reducing the role of government ``doesn't bode well for civil rights issues and environmental issues,'' Bass says.
Others, like Professor Scott at Harvard Law School, shy away from such extrapolations. He points out that other legal scholars who follow the cost-benefit approach to law - especially those at the University of Chicago Law School, Ginsburg's alma mater - have been far more radical than Ginsburg in applying that kind of analysis. Ginsburg is being saddled with their extreme views, he says.
And even if he favors something philosophically - granting banks more securities powers, for example - he may not rule that way. ``I can well imagine him saying it's a good idea to do XYZ, but unfortunately the statute doesn't say that,'' he says.