Banned from the Bench?


Bernard Siegan, says People for the American Way, is as bad as Robert Bork—only worse: "Siegan's views are extreme and exhibit no commitment to the protection of liberty and individual rights."

People for the American Way is lying. And it is lying in a way that is dangerous to the individual liberties and independent judiciary it claims to support.

Siegan, a University of San Diego law professor, was nominated to the Ninth Circuit Court of Appeals over a year ago. Since then, apparently deliberate delays by his opponents have kept the Senate from voting on his nomination.

The debate over Siegan shows how debased the judicial nomination process has become—and how reluctant both Congress and lobbying groups are to make fine distinctions.

For starters, Siegan is not another Robert Bork. True, he believes that applying the intent of the Framers and a strict constructionist approach to the Constitution "is most consistent with the notion that justice demands the rule of law and not of individuals."

But in defeating Bork, the Senate voted down a judge who would grant legislators more power over individuals. Siegan, on the other hand, would limit lawmakers' most cherished privilege—the ability to restrict, control, and outlaw individuals' economic choices.

And, while opponents nitpick about his esoteric approaches to such cases as Brown v. Board of Education, what they're really worried about are Siegan's economic views. These views make Siegan "not a judicial conservative but an ideologue of the right," says Harvard professor Laurence Tribe, a noted ideologue of the left. (Interestingly, Tribe's colleague Alan Dershowitz—the nation's leading civil liberties attorney—strongly backs Siegan.) Siegan's belief that the Constitution protects economic rights takes him "into the realm of the bizarre," says Mary D. Nichols of People For.

What are these weirdo views? "A judicial system more concerned to protect the power of government than the freedom of the individual has lost its mission under the Constitution," writes Siegan in his 1980 book, Economic Liberties and the Constitution. "In a society that extols private property and private enterprise, those who engage in economic activities in reliance on existing laws are entitled to be secure against arbitrary and confiscatory government actions." The Constitution's guarantee of due process and ban on laws "impairing the obligation of contracts," he believes, should invalidate, or at least restrict, a host of economic regulations—from zoning restrictions to the minimum wage.

These are controversial views. But Siegan is by no means the only legal scholar to subscribe to them, in one form or another. Nor would he be the only judge to have criticized court decisions that eroded economic rights.

His opponents are trying to stifle intellectual debate about the meaning of the Constitution. Siegan is a professor, whose writings reflect the theoretical work proper to the academy. But, his opponents imply, some legal theories are verboten—no matter how carefully argued or backed by evidence. "The Supreme Court has held to the contrary" is People For's favorite litany.

Unlike professors, appeals court judges are supposed to follow precedent—and Siegan has said that he will. If he strays, his rulings will be overturned or, more likely, he will find himself a minority of one in his own court.

But we have to wonder, since People For believes so strongly in the Supreme Court's infallibility, how that group would react to a scholar who decried the Hardwick decision, which upheld Georgia's sodomy statute. Or, in an earlier era, Plessy v. Ferguson—a landmark vote to support a law that infringed freedom of contract by forcing railroads to segregate passenger cars, regardless of what they or their customers wanted.

Siegan, says People For, "urges more stringent protection for property rights than individual liberties." This is a false dichotomy. Acting as if property rights were held by buildings rather than individuals is like saying freedom of the press belongs to the machines that do the printing. Life, liberty, and property—as the Constitution twice refers to basic rights—are intertwined. Judges who believe in protecting all three should not be banned from the bench.