Hearing Due on Nomination of Judge Siegan

The long-languishing nomination of a University of San Diego law professor to a federal appeals court appeared to pick up steam again Thursday when the Senate Judiciary Committee agreed to hold a confirmation hearing for the candidate early next month.

Congressional staff members said a date for the hearing to evaluate libertarian scholar Bernard Siegan’s candidacy for a seat on the U.S. 9th Circuit Court of Appeals could be set as early as today.

Siegan’s nomination--which has drawn harsh criticism from liberals--has been stalled since February, largely by the debate over Robert H. Bork’s proposed elevation to the U.S. Supreme Court. A hearing on Siegan had been scheduled for July 21, but it was postponed indefinitely because of the fireworks that ultimately doomed Bork’s candidacy for the high court.

Although the committee’s pledge to schedule a hearing on Siegan in the coming weeks appears to indicate that his nomination has emerged from the deep-freeze, congressional staffers warned that the candidate could be dogged anew by the storm expected to erupt over Reagan’s latest appointee to the Supreme Court, Douglas H. Ginsburg.

Ginsburg, 41, a federal appeals court judge for just under a year, is viewed by some Democrats as a conservative ideologue who may stir many of the same objections that did in Bork’s nomination. If such controversy materializes, Siegan could again land on a back burner, some congressional sources said.

“The President made it clear that we should put all other business aside and proceed full speed ahead on Ginsburg,” said Steven Metalitz, an aide to Sen. Patrick J. Leahy (D-Vt.), who heads a Democratic task force named to screen judicial nominees. “So it could well be that until we deal with that, all bets on Siegan are off.”

Some Republican sources, however, held out hope that if the major concerns about Siegan can be allayed during the daylong hearing next month, the nominee may clear the judiciary committee without further ado and sail on to the full Senate.

“Ginsburg will take precedence, there’s no question about that,” said Randall Rader, the GOP staffer who shepherds nominations through the committee. “But to the extent that questions (about Siegan) are resolved that first day, there may be no need for additional hearings. They just might be able to wrap it up.”

Whatever the timing, observers say Siegan faces a prickly path toward confirmation to a post on the 9th Circuit Court, the preeminent federal court in the West with jurisdiction over federal appellate matters in California, eight other states, Guam and the Northern Mariana Islands.

A University of Chicago graduate and product of its free-market oriented school of economic thought, Siegan, 62, has attracted criticism for his advocacy of an understanding of the Constitution based on the “original intent” of its authors.

As he sees it, the consitution’s framers wanted the federal courts to strongly protect individual liberties--including property rights--against government intrusion. In his books, articles and lectures, Siegan has argued that courts have failed in that mission, engaging in “judicial activism” on issues--from busing to abortion--that ought to have been left to the political process.

Critics say such views put Siegan too far out of the mainstream of American legal thought to merit confirmation to the 9th Circuit bench.

“He would bring us back to an era where there was very little civil rights enforcement, where there was no minimum wage, where conditions in factories throughout the country were abysmal and standards for employees were all but ignored,” said Nan Aron, chairwoman of the Judicial Selection Project, a coalition of two dozen liberal and civil rights organizations that lobbies against conservative judicial nominations. “Overall, I think Bernard Siegan presents problems of the most serious nature with respect to his view of the role of the court.”

Aron added that the defeat of Bork--who adheres to constitutional views similar to those embraced by Siegan--will make the San Diego scholar’s confirmation all the more difficult. She said the Senate “set a very high standard in reviewing Judge Bork’s record and in the process made a point of saying that one’s view of the constitution and individual rights will be a key area of inquiry.

“Bernie Siegan is going to have the burden of showing that he is someone with respect for individual rights and that he passes this new very high standard,” Aron said.

Throughout the nomination process, Siegan has declined to respond to his critics. Reached at his La Jolla home Thursday, the soft-spoken professor described by students as a gentle, caring man said news of the hearing date made him “optimistic, certainly.” But he would not speculate on what lies ahead for his candidacy.

‘Political Processes’

“I could think through a lot of things with you on this but it is a political process and it’s really hard to interpret political processes,” said Siegan, a widower who occupies the former home of mystery writer Raymond Chandler.

Meeting Thursday, Senate Judiciary Committee Chairman Sen. Joseph Biden (D-Delaware) initially set Nov. 17 for the confirmation hearing. But that date drew fire from Republican senators, who complained they already have waited 10 months to see action on the President’s nominee.

Consequently, Biden and fellow Democrats agreed to an earlier date, to be named by Sen. Dennis DeConcini (D-Arizona), who has volunteered to chair the Siegan hearing.