Siegan Caught Off Guard by Rough Play of Capitol Politics

Bernie Siegan spent the first 63 years of his life believing that he was a well-liked fellow with scarcely an enemy in the world.

A genial, soft-spoken man, Siegan claims that 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.”

For Siegan, the transition from relative obscurity to the national spotlight was painful. 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.

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 last month when the Senate Judiciary Committee killed his nomination.

Despite endless pondering and “600 discussions” with friends, Siegan said he is still unsure what led to 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.

And the ill-fated nominations of two other conservatives for the U.S. Supreme Court--Robert Bork and Douglas Ginsburg--very likely convinced 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.”

The committee’s 8-6 party-line vote last July 14 capped a saga that began Feb. 2, 1987, when Reagan announced that he had selected the slight, bespectacled professor for an opening on the U.S. 9th Circuit Court of Appeals, which handles federal appellate matters for California and eight other Western states.

The committee vote was not exactly unexpected. Four months earlier, then-Atty. Gen. Edwin Meese III--a one-time colleague of Siegan’s at the university--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.

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

In his four books, numerous 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 protect individual liberties--including property rights--from government interference.

As Siegan sees it, the Supreme Court has failed to 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.

His position on the court’s landmark 1954 school desegregation case, Brown vs. Board of Education, is one that has come under wide attack. Although he applauds the result the opinion yielded, Siegan believes that 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 that 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.”

Clearly, a lot of people disagree.

‘Off the Charts’

As soon as Reagan announced his choice for the U.S. 9th Circuit seat, Siegan was showered with criticism from liberal legal activists, one of whom labeled the nominee “off the charts” of traditional constitutional interpretation. “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 done an analysis of Siegan’s writings.

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 downfall, Siegan was again put on hold while Ginsburg endured a brief moment of scrutiny before withdrawing after disclosures that he smoked marijuana while a Harvard law professor.

Then in February, Anthony Kennedy, a veteran 9th Circuit Court of Appeals judge, won confirmation to the high court, and Siegan again began to make headlines. By this time, the forces that 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.

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, Siegan doesn’t look like a man chewed up by Washington politics.

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.

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. Constitutions”--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 neighborhood on Chicago’s West Side and spoke only Yiddish until age 5. But he added: “I just wasn’t quite ready for the shock of being a public figure.”