Another Bork, With a New Twist : Economic Views Put Appellate Nominee in a World Beyond

With the defeat of Robert Bork and the near-certain confirmation of Anthony Kennedy to the vacant seat on the Supreme Court, the Reagan Administration’s seven-year effort to remold the federal courts would appear to be running out of steam. But, in fact, chugging along right behind Kennedy is another nominee, this time to the U.S. 9th Circuit Court of Appeals, whose views and writings raise all the same questions that Bork aroused--but with a new twist.

Bernard Siegan is a 63-year-old untenured law professor at the University of San Diego. The bulk of his career was spent as a real-estate developer in Chicago, where he occasionally represented himself but never appeared in federal court. He has written or edited many articles as well as two books, although none are the kind of heavily footnoted pieces that appear in major law reviews; much of his writing has been in the form of signed opinion columns carried in the Orange County Register.

Siegan’s legal qualifications to be an appellate judge are of far less concern, however, than his approach to constitutional interpretation, which goes beyond conservatism (as epitomized by the careful, precedent-minded Judge Kennedy), or even libertarian philosophy (although Siegan is an acknowledged libertarian in philosophy) into the realm of the bizarre.

Siegan’s two books, “Economic Liberties and the Constitution” (1980) and “The Supreme Court’s Constitution” (1987), provide the theoretical justification for the position that he has argued in dozens of articles on slightly different topics over the past decade. The thrust of his argument is that the Supreme Court has been on the wrong track since 1937, when the court rejected the approach first articulated in Lochner vs. New York. That case elevated contractual and property rights to a pinnacle never to be touched by states.

In accordance with the Lochner view, Siegan believes that government efforts to protect workers through minimum-wage laws, or to control urban sprawl and protect environmental quality through zoning, should be struck down as unconstitutional taking of private property unless the state or local government can prove that the regulations are absolutely necessary. In general, Siegan believes that controls on land use or economic activity are anti-competitive, economically inefficient and unfair to business. The role of the courts should be to protect the right of businesses or individuals to use their property as they see fit. No deference to the decisions of elected city or state officials is appropriate in these cases.

When it comes to other personal rights and liberties, particularly the principle of equal protection enshrined in the 14th Amendment and 50 years of Supreme Court decisions, Siegan feels that the courts have been overly protective. Based on his view of the “original intent” of the framers of the Constitution, Siegan asserts that Brown vs. Board of Education cannot be justified on the basis of equal protection because “the 14th Amendment accepted segregation in contemporary public educational facilities.” In order to avoid endorsing segregation, however, Siegan comes up with the rationale that segregated schools infringe on the black child’s “right to travel.” This argument is so strained and unconvincing as to call into question either Siegan’s scholarship or his sensitivity.

According to Siegan, the Supreme Court has also gone overboard in protecting First Amendment rights by giving the press privileges not enjoyed by other businesses and looking much too critically at governmental efforts to promote religion. In fact, Siegan rejects the entire history of Supreme Court decisions holding that the 14th Amendment makes the Bill of Rights applicable to actions by state government.

In his first and only appearance before the Senate Judiciary Committee following his nomination, Siegan asserted that his writing should not be used to evaluate his fitness to serve as an appellate judge, and insisted that he would be bound by Supreme Court precedent even if he disagreed with it. The problem with this argument, which was also used by Judge Bork, is that in the case of Circuit Court judges more than 95% of all decisions are final. Seldom is a case decided at the appellate level in which the Supreme Court precedent is absolutely clear. Appellate Courts must use Supreme Court decisions as guidance, but their work is in the grayer areas of interpretation, resolving conflicts or filling in gaps, sometimes even deciding completely new issues and theories.

Prof. Siegan has given us a very full explanation of his views on some very fundamental constitutional issues, and the record that he has left is one of an extreme ideologue who wants to bend the Constitution to suit his economic views. The fact that he also serves as head of Atty. Gen. Edwin Meese’s advisory panel on “original intent” theory only adds to the impression that this is an appointee with an ax to grind.

The Judiciary Committee will revisit Siegan’s nomination immediately after the vote on Judge Kennedy’s confirmation to the Supreme Court. If the committee holds fast to the sensible standards that it has established in the Bork and Kennedy proceedings, Siegan must be rejected.