US JUDICIAL APPOINTEE. Libertarian law professor slated for largest US appeals court. Opposition expected in Senate, but turndown is considered unlikely
San Diego — Nomination of a mild-mannered, bespectacled law professor at the University of San Diego to the Ninth US Circuit Court of Appeals has Washington, D.C., liberals scurrying to law libraries in search of material that might help derail his appointment. Prof. Bernard Siegan's libertarian, free-market views are not expected to provoke a full-blown United States Senate showdown like the one that occurred last summer when Democrats bitterly opposed President Reagan's nomination of conservative Indiana lawyer Daniel Manion to the Seventh Circuit Court of Appeals. Mr. Manion was confirmed in a 50-to-49 Senate vote.
Critics of former real estate lawyer Siegan concede that he is likely to win the appointment to the largest and busiest federal appeals court, which decides cases for California, eight other Western states, Guam, and the Mariana Islands.
Siegan was nominated to the Ninth Circuit Court along with Oregon federal district Judge Edward Leavy. Mr. Leavy's confirmation by the US Senate in March created a majority of Republican-appointed judges on the appellate court long regarded as the most liberal in the nation.
With one of its 28 seats vacant, the Ninth Circuit Court now includes 12 judges appointed by Jimmy Carter, nine by Reagan, three by Richard Nixon, two by Gerald Ford, and one by John Kennedy. But even if Siegan is confirmed, as expected, University of Santa Clara law school dean Gerald Uelmen says, it would be hasty to assume the balance on the court will be tipped toward one side of the political spectrum, since cases are heard by randomly selected three-judge panels.
Dean Uelmen, who has closely studied the Ninth Circuit Court, says the Reagan administration ``probably targeted'' the court for conservative appointments, feeling it ``had to correct an imbalance.''
Siegan's supporters say that, regardless of the extreme positions he has often taken as an academic and as a weekly columnist for a libertarian newspaper chain based in southern California, he would feel bound to follow the law in deciding cases.
``As an intermediate court judge, he'll follow the rules from above. To the extent it leaves him a gap, he'll follow his own inclinations. That's what everyone does,'' says University of Chicago law Prof. Richard Epstein, a leading adherent of the conservative economic theory of law, associated with the University of Chicago, that tries to view legal decisions in terms of cost-benefit analysis.
In numerous scholarly articles and books, Siegan has argued that the US Supreme Court in the post-New Deal era has failed to give economic rights equal weight with other liberties. He holds that the framers of the Constitution considered economic rights to be at least as important as personal rights, and that much of the economic and social legislation flowing from Franklin D. Roosevelt's New Deal is unconstitutional.
As a private lawyer and later as a member of President Reagan's Commission on Housing, Siegan criticized zoning laws, saying they reduce the stock of affordable housing for low-income families.
``He clearly is not part of the intellectual mainstream, but you can't assume the status quo is correct because it's been around 50 years,'' Mr. Epstein said. ``I don't think Bernie [Siegan] should be judged a relic solely because he disagrees with [liberal Supreme Court] Justice [William] Brennan.''
But moderate-to-liberal constitutional law scholars label Siegan a ``judicial activist'' from the right who would be inclined to strike down environmental legislation, minimum-wage laws, rent control, and zoning on grounds that they infringe upon individual property rights.
``His views reflect a philosophy of radical judicial activism in support of those with wealth and property that seems so inconsistent with the ideals of a restrained judiciary that it casts grave doubts on whether the Reagan administration has any idea what it's doing,'' says Harvard University law Prof. Laurence Tribe.
Siegan's ``philosophy would mean that child-labor laws, minimum-wage laws, and virtually the entire safety net of economic protection could be struck down by federal judges,'' Professor Tribe says.
Siegan's critics are focusing on a 1985 article he wrote for the libertarian Cato Institute in which he criticized the Supreme Court for ``judicial excesses'' in ordering forced busing and in permitting abortion during the first trimester of pregnancy. He said the Supreme Court's landmark 1954 desegregation case, Brown v. Board of Education, demonstrated the court's ``flagrant'' usurpation of legislative and executive powers.
``There is no fundamental or natural right to education, nor to an integrated education; each is a political right created by government and is accordingly not within the guarantees of the 14th Amendment,'' Siegan wrote.
Critics have cited portions of a questionnaire Siegan filled out for the Senate Judiciary Committee in which he said that during his more than 20 years in private practice he appeared in court only occasionally, mostly on civil matters.
He has also come under fire for listing free legal and policy advice to a libertarian San Diego city councilman in the late 1970s and early 1980s as representative of his ``pro bono'' work.
Since his nomination Feb. 2, Siegan has been unavailable for comment, saying that the Justice Department has asked him to turn down requests for interviews while the nomination is pending.
So far, no critic has made charges or produced evidence as potentially damaging as some leveled at Manion, or at William Rehnquist when the present Chief Justice of the US was being considered for confirmation. But Senate staff members deliberately scheduled Siegan's confirmation hearing for early summer - at the tail end of a string of less controversial nominees - to provide plenty of time to investigate his background.
Siegan earned his law degree from the University of Chicago in 1949. He practiced real estate law in Chicago with a partner before moving to San Diego to teach in 1973. His law practice was augmented by his own real estate development companies.
Last year Siegan was appointed to the national commission chaired by former Chief Justice of the US Warren Burger, to plan the bicentennial of the Constitution. This year he is directing a Justice Department-funded study at the University of San Diego to determine the original intentions of the framers of the Constitution.