The legislative murk that for months has mired a University of San Diego law professor's nomination to a federal appeals court lifted long enough this week for the Senate Judiciary Committee to schedule a confirmation hearing on his candidacy.
But Bernard Siegan, a libertarian scholar whose views have drawn harsh criticism from liberals, still may face a tough fight for confirmation to a post on the U.S. 9th Circuit Court of Appeals, congressional staff members say.
Siegan's confirmation hearing is scheduled for July 21--almost six months after President Reagan sent his nomination to Capitol Hill. And Republicans say the delay could have been even longer had they not threatened to raise a stink in a Judiciary Committee meeting Tuesday.
"We were going to raise Professor Siegan's name and ask why it was sitting without any action whatsoever since Feb. 2 and make somewhat of a cause celebre out of it," said Randall Rader, the GOP staffer who shepherds nominations through the committee.
Democrats say Siegan's nomination is deserving of a long, slow look, and that the delay in scheduling a confirmation hearing reflected the large number of significant questions raised by his extensive writings on constitutional issues and the role of the federal judiciary.
"There's going to be a lot of questioning about the views he's expressed in his writings, which are sharply at odds without about 160 years of Supreme Court precedent, and about how he's going to apply those views if he becomes a judge," said Steve Metalitz, an aide to Sen. Patrick J. Leahy (D-Vt.).
Leahy heads a task force of Democratic senators named early this year by Sen. Joseph Biden (D-Del.), the committee's chairman and a candidate for the Democratic presidential nomination in 1988, to intensively screen judicial nominees. Siegan, nominated a month after Democrats regained control of the Senate for the first time in six years, is the first judicial candidate to receive the task force's scrutiny.
At 62, Siegan--a University of Chicago Law School graduate and a product of the university's free-market oriented school of economic thought--has drawn liberals' ire for his advocacy of an understanding of the Constitution based on the "original intent" of its authors.
By Siegan's reading, the framers of the nation's basic legal text wanted the federal courts to strongly protect individual liberties--including property rights--against government intrusion. Siegan has contended in his books, articles and lectures that the courts have failed to adequately protect those rights, and that, in an excess of "judicial activism," they have interfered in issues--from busing to abortion--that properly should have been left to the political process.
Such views have caused some legal analysts to label Siegan iconoclastic, eccentric or crankish. And Siegan's outlook has led him to criticize both early Supreme Court decisions that established the course of constitutional law and more recent high court trends that liberals applaud.
His nomination, meanwhile, is being weighed during a period of increased public attention to matters of constitutional interpretation.
Views Similar to Meese's Atty.
Gen. Edwin Meese III--Siegan's friend and one-time colleague at the USD law school--has voiced a viewpoint similar to the San Diego professor's in his on-again, off-again debate with liberal members of the Supreme Court.
But critics say, nonetheless, that Siegan's position is too far out of the mainstream of American legal thought, and too strongly held, for the former land-use lawyer to merit confirmation to the 9th Circuit bench.
"The Constitution according to Bernard Siegan is not what has been the developed Constitution we now have," said Nancy Broff, director of the Judicial Selection Project, a coalition of two dozen liberal and civil rights organizations that plans next week to issue a study condemning Siegan's nomination.
"He is very result-oriented," Broff said Wednesday. "The result is that property rights get enforced and individual rights don't, that the haves can keep getting more and the have-nots have no chance of getting any."
Siegan, following custom, has refused to answer the critics before his confirmation hearing. But an array of supporters--including some whose backing of Siegan might at first seem surprising--have sent letters to the Senate and the Justice Department on the professor's behalf.
One of the letter writers, Washington lawyer Ernest Gellhorn, said Wednesday that partisan politics have more to do with the difficulties Siegan's nomination faces than does his perspective on constitutional law.
"Almost all judicial nominations are being held up by the Judiciary Committee as several of its members start to run for president and the opportunity of gaining a political advantage is seen by some," said Gellhorn, formerly dean of the law schools at Arizona State University, the University of Washington and Case Western Reserve University. "It's part of love and war, and this is war."
Another supporter, Harvard University law professor Alan M. Dershowitz, acknowledged the extremism of some of Siegan's positions, but argued in a letter to Biden that they should not exclude him from the bench.
"If the judiciary were to be dominated by any one approach--whether it be that of Professor Siegan or anyone else--there might be cause for concern," wrote Dershowitz, a noted criminal defense lawyer. "But his are indeed iconoclastic views, not widely shared by judges and academics."
Added Dershowitz: "It would be a mistake, in my view, to single him out for partisan opposition because the end result of his libertarian philosophy may be judicial decisions that are sometimes conservative in outcome and favorable to property rights."
Rader, the Republican staff member, predicted Wednesday that opposition to Siegan's nomination will dissipate once he has cleared the hurdles set up by the committee's Democratic staff. When the senators themselves see that Siegan is bookish, gentlemanly and reasonable, he is likely to receive bipartisan support, Rader said.
"Once the process gets under way, the problems will disappear," he said.
Broff disagreed. "I think there is a chance of defeating this guy in committee," she said. "The Democrats feel they have to show they can defeat somebody. And you don't have a smoking gun here. You have a cannon."