Court Nomination Turned Quiet, Scholarly Life Into Maelstrom

Bernie Siegan spent the first 63 years of his life believing he was a well-liked fellow with scarcely an enemy in the world. A genial, soft-spoken man, Siegan claims he rarely ruffled a feather during his initial career as a Chicago land-use attorney and later as a constitutional law professor at the University of San Diego.

Then President Reagan nominated him for a seat on a federal appeals court.

Suddenly, scholars, politicians and commentators from coast to coast had something to say about Bernard Herbert Siegan and his Libertarian ideas. He was a “crank,” said some; “eccentric,” according to others. One of Siegan’s legal arguments was “so bizarre and strained,” a Harvard University law professor opined, that it raised doubts about his competence and “sincerity as a scholar.”

‘A Terrible Shock’

For Siegan, the transition from relative obscurity to the national spotlight was a painful one. Indeed, had he foreseen the public flogging that lay ahead, Siegan says, he would have declined the nomination.

“At times I felt like Public Enemy No. 1,” he said recently. “It came as a terrible shock. People everywhere were taking shots at me for no reason at all.”

During an interview last week at his home on the La Jolla waterfront, Siegan recounted his 18-month experience as a judicial nominee, an episode that ended in July when the Senate Judiciary Committee killed his nomination. The seat remains unfilled.

Despite endless pondering and “600 discussions” with friends, Siegan said he is still unsure what precipitated his defeat. Politics undoubtedly played a role, he said, speculating that committee Democrats delayed a vote on his nomination to deprive Reagan of time to submit another name for the judgeship.

Also, the ill-fated nominations of two other conservatives for the U. S. Supreme Court--Robert Bork and Douglas Ginsburg--probably persuaded liberal activists that Siegan’s ascension to the bench could be blocked as well.

But most disturbing to Siegan is the notion that he was rejected because he espoused the wrong ideas.

“It seems I was not given a position because I had a political perspective that was inconsistent with the dominant perspective on that committee,” Siegan said. “That’s about the worst reason I can think of in our society for denying a person a job.”

On July 14, Siegan climbed into his brown Mercedes sedan and drove to Los Angeles for lunch with some friends. But his mind wasn’t on the upcoming meal. Hundreds of miles away, 14 U.S. senators were taking the long-delayed vote on his languishing nomination for a seat on the U.S. 9th Circuit Court of Appeals, which handles federal appellate matters for California and eight other Western states.

As he approached the restaurant, Siegan spotted a public telephone. Succumbing to temptation, he placed the call that would tell him what he would be doing for the rest of his life.

“They told me it was over,” said Siegan, now 64, recalling his conversation with officials at the Justice Department. “Then I went inside and ate lunch.”

The news was not exactly unexpected. Four months earlier, outgoing Atty. Gen. Edwin Meese III, a one-time colleague of Siegan’s at USD, had warned him that the nomination was in trouble. Nonetheless, Siegan said he held out hope until the end that the vote might go his way.

“I really never gave up,” he said. “As the process wore on, I think I convinced some of the senators that I wasn’t just some guy off the street who didn’t know anything. So I thought I had a chance.”

Beginning of Saga

The committee’s 8-to-6 party-line vote capped a saga that began Feb. 2, 1987, when Reagan announced he had selected the slight, bespectacled professor for an opening on the powerful 9th Circuit Court.

Right from the start, the nominee was something of a cause celebre. A graduate of the University of Chicago’s School of Law, Siegan shares the free-market thinking on economics associated with the campus and its most celebrated exponent, Milton Friedman.

In his four books, many scholarly articles and five years of columns he wrote for the Freedom Newspapers chain, Siegan advocates an understanding of the Constitution based on the “original intent” of its authors. The framers, according to Siegan, intended the Constitution to vigorously protect individual liberties--including property rights--from government interference.

As Siegan sees it, the Supreme Court has failed to adequately safeguard those rights--particularly economic rights. Exercising “judicial activism,” he argues, the court has often intruded on issues--from busing to abortion--that should have been left to the political process.

Controversial Opinion

His position on the 1954 desegregation case, Brown vs. Board of Education, is one that has come under wide attack. Although he applauds the result the landmark opinion yielded, Siegan believes the unanimous decision declaring segregated schools unconstitutional was based on faulty reasoning.

“Although such segregation is totally repugnant in modern society, it does not follow that the Constitution necessarily provides relief in this area,” he wrote in “The Supreme Court’s Constitution,” his 1987 book. “The original Constitution accepted slavery and the 14th Amendment accepted segregation in contemporary public educational facilities.”

He added, however, that “a persuasive argument can be made” that black children were denied an implied constitutional right of access to all-white schools.

Siegan hotly insists that neither his views on the Brown decision, an opinion he says has been roundly criticized by many scholars, nor his positions on other issues are “out of the mainstream.”

“What’s the mainstream? The mainstream is what I’m in and the next person isn’t,” Siegan said. “I have views that many scholars share. Many of my views are shared by the (Republican) nominee for vice president. Would they nominate him if he was out of the mainstream?”

More to the point, he argues, such views have no connection with the role he would play on a federal appeals court: “The job of a circuit court judge is to find out what the Supreme Court has said on an issue and rule accordingly. My political views really are irrelevant.”

Not All Agree

Clearly, a lot of people disagree.

As soon as Reagan announced his choice for the 9th Circuit seat, Siegan was showered with criticism from a wide range of liberal legal activists, one of whom labeled him “off the charts” of traditional constitutional interpretation. Groups like the Alliance for Justice, which lobbied hard to defeat Bork, and Norman Lear’s group, People for the American Way, predicted that Siegan would impose his strict views as a jurist and undermine decades of progress on civil rights, environmental and consumer protections.

“All zoning. All building codes. All environmental laws. The minimum wage. All of it would go if Siegan had his way,” said Carlyle W. Hall, co-director of the Center for Law in the Public Interest in Los Angeles, who has analyzed Siegan’s writings.

Siegan was also challenged for his lack of trial experience. Although he practiced land-use and real estate law in Chicago for two decades, he tried just one case in federal court and has never argued an appeal.

Conceding that his background may be weak in that area, Siegan said his detractors failed to “look at the whole person.”

“My credentials are as strong as those of anyone nominated for the job,” he argued. “The job of a circuit court judge is a scholarly job, one of studying and applying the law. Well, I’ve been studying the law for 20 years. I’ve more than made up for any lack of experience on the trial level.”

Although Siegan was nominated before Bork, the vote on his appointment was delayed while the Senate heard hours of testimony on Reagan’s controversial selection for the Supreme Court. After Bork’s rejection, Siegan was again put on hold while Ginsburg endured a brief moment of scrutiny before withdrawing after disclosures that he had smoked marijuana while a Harvard law professor.

Attacks Mount Again

Then in February, Anthony Kennedy, a veteran 9th Circuit Court of Appeal judge, won confirmation to the high court, and Siegan again began to make headlines. By this time, the liberal forces that had teamed up to defeat Bork and Ginsburg were emboldened, confident that Siegan, too, could be brought down.

In addition, Siegan said, the situation became “very attractive for Democrats,” who knew that “if I failed, there would not be time for the President to get another nomination through” before the end of Reagan’s term.

As the frequency and severity of their attacks mounted, the picture turned gloomy for the professor from La Jolla. Ed Meese told Siegan as much in a March 24 telephone call. The call prompted Siegan to contemplate pulling out. He had had enough of the criticism, of constantly fending off the reporters. Why not just bail out?

“The temptation was very strong,” he recalled. “But then I received calls and letters from many people, some of whom I did not know, urging me to stick it out. They said it was important to make these senators put their feelings on the record. And I’m glad I stayed in, because, if I hadn’t, people would have assumed, ‘Well, he must have something in his closet.’

“But, if not for that support, those calls, I believe I would have withdrawn my name.”

If Siegan is bitter about the year and a half he spent defending his scholarly reputation, he hides it well. Sitting cross-legged on a sofa in the living room of his home, perusing a thick, carefully indexed binder of news clippings and cartoons about his nomination, he doesn’t look like a man who was chewed up by the jaws of Washington and spit back out.

Since the committee’s vote, he has spent the waning days of summer holed up in his spacious white house, once owned by mystery novelist Raymond Chandler. Encircled by an orderly, tiered garden of succulents, geraniums and juniper bushes, the home commands an expansive view of the Pacific and contains an intriguing array of sculptures and paintings collected by his late wife, Sharon, an artist.

He says he has put the past behind him and will return to his work as a teacher and member of the Commission on the Bicentennial of the U.S. Constitution. Recently, a law school project he coordinated with a $15,000 grant from the Justice Department--a first-of-its kind “Bibliography on Original Meaning of the U.S. Constitution”--was released, and there are occasional speaking engagements.

Soon, the “difficult” and “occasionally painful” chapter of his life will be a distant memory.

“This is the process, and I engaged in it willingly,” said the silver-haired Siegan, who grew up in a Jewish ghetto on Chicago’s West Side and spoke only Yiddish until age 5. “I just wasn’t quite ready for the shock of being a public figure.”

Exploring the Process

But, although he may not resent his treatment during the nomination controversy, Siegan is quick to add that, at least in his case, he believes the process failed. And that is a question he plans to explore in a book he is writing on his experience as an embattled nominee.

“The President nominated me after a very thorough investigation and after very carefully considering my qualifications,” Siegan said. “None of the senators found any moral defects in my background, nothing with the National Guard. But I was rejected because I was not politically in tune with a certain group.

“Well, in my opinion, that formula doesn’t make sense for obtaining judges.”

Moreover, Siegan believes that he, in effect, was singled out for punishment because he had expressed his opinions widely in journals, books and newspapers and thus was vulnerable to attack.

“Many judges appointed by Reagan feel the same way I do on these things, but they simply had not spread their views all over the place like I had,” Siegan said. “Take Tony Kennedy. He’s no different than Bork. He is virtually the same, as his record will show. But he has written very little. So how do you oppose someone if you don’t know what they think?”

As for regrets, Siegan says he is sorry that, despite 18 months of effort, he was never granted an audience with Sen. Alan Cranston (D-Calif.), who had threatened to put a hold on Siegan’s nomination if the committee sent it to the Senate floor.

The most painful element of the saga, he said, was the distortion of his views that he claims the media and his critics are guilty of.

“I can’t tell you how it felt to see the reduction of my scholarly views--things I spent days and days thinking about and writing and rewriting--reduced to one sentence of nonsense in the newspaper,” he said. “How do you defend yourself against that?”

Price of Being Candid

Siegan also laments the chilling effect that his treatment might have on other scholars fearful that expressing their views candidly could doom their chances for an appointment to the bench. In a letter to Sen. Edward M. Kennedy (D-Mass.) before the fatal vote, he expressed that opinion.

“The nation should encourage its scholars to probe and analyze vigorously and fearlessly in the pursuit of truth and information,” Siegan wrote. “Denying judicial confirmation to a lower court judge purely because some people disagree with his or her scholarly views would inhibit scholarship and send a discouraging message to many engaged in the academic professions.”

Indeed, if he had known years ago that he was destined to be a nominee, Siegan said, “I might have thought about it and decided to cool it a little bit. It’s obviously a factor that someone who writes about constitutional issues is going to have to think about.”

In the end, he figures it all comes down to a question of trust, or lack thereof. The bottom line is, eight senators who opposed his nomination simply did not believe Siegan would--or could--set aside his views and act impartially as a judge.

“No one ever accused me of being temperamental, dishonest or unfair. All the senators said I was a man of integrity. They found no blemishes on my record. Well, if I’m a man of integrity, then won’t I honor my oath, which is to uphold the Constitution as interpreted by the Supreme Court?

“So, what they really seem to be saying with this vote is that I’m not a man of integrity. And that’s just not true.”