Conservative Faces Battle Over Judgeship

Most legal conservatives think the Supreme Court was wrong to declare that women have a constitutional right to an abortion. Many are still upset at the court for striking down prayer in schools, and a few even think the court should not have outlawed segregated schools as “inherently unequal.”

But Bernard Siegan may be alone in thinking that, in addition to all these, the Supreme Court was wrong to allow Congress to print paper money, because the Constitution mentions only the minting of coins.

What makes Siegan’s views particularly important is that President Reagan has nominated him to the U.S. 9th Circuit Court of Appeals in California. And liberals, charging that Siegan makes Robert H. Bork “look like a moderate,” are vowing to try to block his confirmation by the Senate, which last year found Bork to be too conservative for the Supreme Court.

In seven years, the Senate has voted down only one of Reagan’s lower-court nominees, but many believe Siegan could be the second. Siegan, 63, a wealthy Chicago real estate lawyer turned constitutional scholar at the University of San Diego, is a longtime friend of one of his former USD colleagues, Atty. Gen. Edwin Meese III.

Siegan says his views as a scholar are “totally irrelevant” to the job he would do as a federal judge.

“I am going to take an oath of office to enforce the law of the land, and that means I would subordinate my views to those of the court. Those are the rules of the game,” he said in an interview.

Nevertheless, he acknowledged, “This is becoming a much bigger battle than I anticipated.”

More than a dozen liberal legal activists, convinced by the Bork experience that judicial nominees can be defeated, have lined up to testify against Siegan in a hearingThursday that could match the Bork clash in rhetorical ferocity, if not in high court significance.

They will argue that Siegan’s strict views would threaten civil rights progress and erode protections for consumers and the environment.

“Siegan’s off the charts” of traditional constitutional interpretation, said Nan Aron of the Alliance for Justice, which was active in the campaign against Bork.

As a lawyer who never served on the bench, “His credentials are minimal. He’s mostly represented himself in real estate developments,” said Carlyle W. Hall, co-director of the Center for Law in the Public Interest in Los Angeles, another activist group.

Justice Department spokesman Patrick Korten counters that Siegan’s views are “well within the mainstream” and reflect a responsible commitment to judicial restraint.

“If anyone says the Administration will lie down on this nomination, he doesn’t know what he’s talking about,” he said.

Free Market Economics

Siegan, like Bork, is a devotee of free market economics, having studied its principles at the University of Chicago Law School. After graduating in 1949, he worked as a real estate lawyer and developer in suburban Chicago before joining the USD faculty in 1973 to begin research in constitutional history. His key conclusion: that framers of the Constitution intended to protect rights to property and economic liberty.

His view has brought him into direct conflict with the Supreme Court, which since the New Deal era has allowed governments to regulate business in the interest of health, welfare or safety.

In two books, “Economic Liberties and the Constitution” in 1981 and “The Supreme Court’s Constitution” in 1987, Siegan argued that the high court has gone well beyond constitutional bounds and intruded on individuals’ and business’ rights to be left alone.

If applied on the bench, his critics say, his approach would tear up half a century of government regulation. “All zoning. All building codes. All environmental laws. The minimum wage. All of it would go if Siegan had his way,” said Hall, a Los Angeles lawyer who has done an analysis of Siegan’s writings.

Siegan says he does not know exactly how he would decide cases involving such issues but would insist that courts give more weight to “economic rights.”

Broadens His Attack

Last year, Siegan, in scholarly writings, broadened his attack on the Supreme Court and cited eight major areas where, he contends, the court’s rulings are out of line with the intentions of the document’s authors.

For example, in 1871, the Supreme Court ended a long political and legal battle by ruling Congress had the authority to issue paper money as legal tender for all debts. The constitutional convention debated the question before specifying only coinage, and “The impact of this distortion of the Constitution is considerable,” Siegan wrote. “None other than political restraint exists on the amount of the United States’ money supply. This is not a very secure anchor when compared to that provided by tying the supply to the nation’s ownership of gold and silver,” he said.

Siegan also wrote that the Supreme Court was wrong to insist on the “separation of church and state,” a phrase that does not appear in the Constitution. The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The 14th Amendment of 1868 says no state may “abridge the privileges and immunities of citizens of the United States.”

Siegan says he agrees that states may not interfere with the free exercise of religion, but they may support or promote a favored religion. The authors of the Constitution knew that their states were supporting churches and they took no action to end that practice, he says.

His position on the 1954 Brown vs. Board of Education decision is complicated, and, according to some scholars, “bizarre.” The 14th Amendment, enacted after the Civil War, said states may not deny their citizens the “equal protection of the laws,” and in 1954 the high court declared that segregated schools in the South were “inherently unequal” and therefore, unconstitutional.

Sees Ruling as Correct

Siegan says the reasoning in this case is wrong, but the ruling was correct. The authors of the 14th Amendment did not intend to abolish school segregation, he concludes.

“Although such segregation is totally repugnant in modern society, it does not follow that the Constitution necessarily provides relief in this area. The original Constitution accepted slavery and the 14th Amendment accepted segregation in contemporary public educational facilities,” Siegan wrote.

But he goes on to say that “a persuasive argument can be made” that black children were being denied an implied constitutional “right of access” to all-white schools.

Harvard University law professor Laurence Tribe, in a letter to the Senate Judiciary Committee, said this argument was “so bizarre and strained--so incompatible with meaningful enforcement of the right to integrated education and so at odds with ordinary ways of thinking about constitutional law--as to bring into question both Mr. Siegan’s competence as a constitutional lawyer and his sincerity as a scholar.”

Tribe said that Siegan’s writings show he “is unfit to serve as a federal judge--even by standards that give wide latitude to the President.”

Liberals Not United

However, the liberal legal community is not united against Siegan. He has the support of several prominent legal academics, both liberal and conservative, who say his constitutional scholarship should not disqualify him. They also say he is less likely than Bork to seek to implement an ideological agenda upon taking the bench.

“Bernie is a person of integrity. He would follow the commands of a higher court,” said University of Chicago law professor Philip B. Kurland.

Harvard University professor Alan M. Dershowitz, who opposed Bork, said in a letter to the Senate committee that Siegan is a “libertarian” whose legal views are “iconoclastic and not widely shared by judges and academics.” But he urged confirmation, arguing that the Senate should not insist on a “single orthodox view” of constitutional law.

The battle over Siegan’s suitability for the judiciary will be heightened by the sensitivity of the post he would hold. The 9th Circuit appeals court covers California and eight other Western states. Its 26 judges, meeting in three-judge panels, handle all manner of appeals from federal district courts.

The importance of a single judge was highlighted recently when one appeals panel ruled that the Army could not refuse re-enlistment to homosexuals and another decided that the government could not require drug testing of railroad crews who were involved in an accident. Both decisions came on 2-1 votes.