News Scrapbook 1986-1988

san Diego, CA (San Diego Co.) Evening Tribune (Cir. D. 127,454)

San Diego, CA (San Diego Co.) Evening Tribune (Cir. D. 127,454)

AR 2 81987

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Court nominee s·egan: t ning back the clock? By Ann Levin Tl"lbune tall Writer In 1905 th U.S. upreme Court stru down tale law hmiting b.ik to a 60•bour workweek, ay• mg ll interfered with their right to ent r into "fr contracts" with their employe

*Siegan.------------------------ Continued Fron ,ige 1 al law s olar in the nation. terprise system and opened a law practice with a fellow University of Chicag• alumnus, also from the old Jewish neighborhood.

Amendment," Siegan wrote. David Boaz of the Cato Institute is quick to point out that Siegan never directly criticized the reasoning or the court in Brown vs. Board of Edu- cation - the landmark 1954 civil rights case that declared segregated schools unconstitutional - but rather attacked the methods that subjected the schools to what Rehnquist has described as "in practice a federal receivership." Siegan's attack on busing sent Susan Liss of People for the American Way, a civil rights watchdog group founded by television producer Norman Lear, and Nancy Broff of the Judicial Selection Project, a coalition of about two dozen civil rights and labor groups in Washington, D.C., scurrying to libraries to sift through Siegan's writ- ings. In addition, the Senate Judiciary Committee - eight of whose 14 members are Democrats - launched its own investigation into Siegan and plans to hold hearings in late spring or early sum- mer. "H his views really are at such sharp variance with earlier case law, will he be able to follow precedent or will his personal views make that difficult?" askedd Steve Metalitz, a committee aide assisting Sen. Patrick Leahy, D-Vt., chairman of a four-member committee task force set up to review judicial nominations. But the attacks on s· an are " a torture of liberal Democrats who have careers of their own to advance" to Daniel Popeo's way of thinking. He is founder of the conservative Wash- ington Legal Foundation, a research group that he describes as "working for the American public, not for criminal lobbies" like other organizations that call themselves public interest groups. "The joke is that a lot of less qualified liberal Democrats were not scrutinized when their names came before the Senate," Popeo said. "They were Carter and Johnson appointments, nothing more than staff attorneys in activist legal organizations whose only credentials were membership in a mi- nority." · Siegan acknowledges that at first glance he is an unlikely mouthpiece for the laissez-faire, dog- eat-dog world of free-market economics. A thin man who walks conscientiously for an hour every day, Siegan has for most of his adult life eaten cottage cheese topped with yogurt for lunch to control his weight, said his lifelong friend Karlin. With jowls that sag slightly, wire-rim glasses and longish graying hair parted on the side, he evoked on a recent spring day the old-fashioned image of a college professor, sporting a rainbow of earth tones from a mustard tweed jacket to brown-cuffed pants. Though he practiced civil law for more than two decades, he has virtually no trial experience and "has never practiced in federal court," said Broff at the Judicial Selection Project - another area of concern to his rritics. He has never served as a judge. When Siegan enrolled in the University of Chi- cago Law School on the GI Bill in the fall of 1946, after a two-year stint in the U.S. Army, he was a self-described New Deal liberal: ''There was no other way of looking at the world coming from my origins." He was born on the west side of Chicago, then a Jewish neighborhood, to a family so poor they barely scraped by. When his father worked, he sold ladies' dresses. Siegan distinguished himself in school at an early age, though be had only mastered English at the age of 5, when the public school system forced him to abandon Yiddish, the language he spoke at home with his mother, an immigrant from East- ern Europe. There is still a slightly Yiddish lilt to his soft, measured speech. In immigrant communities across the nation bit hard by the Depression, Franklin !Rlano Roose- velt was a secular equivalent of God. But in law school, Siegan veered sharply to the right under the tutelage of a group ofconservative free-market scholars that included well-known economist · ton Friedman and his ess celebrat- ed brother-in-law, law professor AaJOn Director, who nevertheless had a major ill'.l)act on the course of modern scholarship. Siegan describes himself as a Dire.tor devotee, which puts him in the same category ~s Robert H. Bork, a U.S. appeals judge for the Diltrict or Col- umbia and likely Supreme Court n,minee, who two years ago delivered at 1Jil) la, school the Sharon Siegan Memorial Lecture, eitablisbed in memory of Siegan's late wife. The rouple never bad children. In a round-table discussion severii years ago convened to chart the impact of the law and eco- nomics movement, Bork said Directoc's antitrust and economlcs courses inspired "what can only be called a religious conversion. It chan~ our view of the entire world." No, demurred UCLA professor Wesley J. Liebeler, it was not a "religious con,ersion" but rather a "religious reinforcement." "I r.ame from North Dakota and have been a son of a bitch for a long time,'' Liebeler said, accord- ing to the proceedings of the seminar published by Emory University. Sieg11n took his newfound faith in the free en-

Siegan supporters say his cost-benefit approach to the justice sy tern represents an unsentimental view of the world that is starting to gain ground as President Reagan appoints to the federal bench other members of the University of Chicago-based school of thought known as "law and economics.• "We have won the intellectual battle," said Nor- man Karlin, Siegan's former law partner and now a law professor in Los Angeles, who shares Siegan's libertarian approach to economics, roughly described as advocating minimal govern- ment. Siegan's students say he is kind and fair, and they hope he is appointed because of the honor it will bring their future alma mater. Though one of his liberal colleagues says he hopes Siegan wins the appointment because Siegan is willing to engage liberals in discussion, another law professor worried privately that Siegan is dangerous to liberals precisely because he is so affable. Even Siegan acknowledges that his interpreta- tion of the Supreme Court and the Constitution - a view that stresses property rights, liberty of contract and other tenets of free-market en• terprise - is a minority view. Every since the New Deal, the U.S. Supreme Court has approved "in economic and social wel• fare basically whatever Congress or the states want lo do," said Herman Schwarz, a law profes- sor at American University and contributing em: tor of The Nation. But Siegan says the U.S. Supreme Court has abdicated its responsibility to review flawed legis lation, often the creation of special-interest groups, that winds up hurting the average con- sumer by placing restrictions on the inherently healthy ebb and flow of the free-market system. To Siegan, the glory days of the court were in the early part of this century, when the court routinely struck down laws meant to curb the abuse; of sweatshop operators and union busters. "Because relatively few welfare laws and unions existed in those decades, the betterment of life must be attributed to the success of the eco- nomic system," Siegan wrote in the 1980 book "Economic Liberties and the Constitution." "It was not difficult to conclude that this suc- cess could be undermined by limiting en- trepreneurial freedom: That which harms busi- ness also injures the livelihoods of the people." At the same time, Siegan flails the post-New Deal court for going out of its way to broaden the meaning of the 14th Amendment's guarantee of "life, liberty or property" and "equal protection under the a ." He says the modern court has created rights - c as the right to privacy, to an abortion in the first trimester of a pregnancy and to enrollment in a racially integrated school - never contem- plated by the Founding Fathers. While the court will closely scrutinize laws lim- iting 1st Amendment freedoms and those discrimi- nating against women and minorities, it seems to care little if at all about government restraints on the use of private property and on the production and distribution of goods and services, he argues. "Constitutional history does not support this ... ," Siegan wrote. "The framers of the original Con- stitution, the Bill of Rights, and the 14th Amend- ment were committed to securing the material liberties." But there are good reasons why the court for the last 50 years has extended greater protections to the fundamental freedoms of speech, press and religion, the right to counsel, and those rights Siegan describes as "political," such as voting, jury service and public education, according to Michael Parrish, an expert on colonial America and the Constitution at UCSD. "Without them," Parrish said, "we would live in basically a police state." Parrish says Siegan's defense of Lochner vs. New York, the case that struck down the 60-hour workweek as unconstitutional because it deprived workers of the economic freedom to work long hours if they wanted, makes him "somewhat of an anachronism." "When this vision of economic liberty flour- ished, life was nasty, brutish and short for large numbers of American people," Parrish said. ''The American people rejected that (view) and have rejected it ev r since." It was Siegan's criticism of forced busing and other federally mandated integration methods that triggered a full-blown investigation into his published writings last month, including five years' worth of weekly columns written for Free- dom Newspapers, a chain of more than two dozen papers, including the Orange County Register, that espouses the libertarian view. In a 1985 article published by the Washington, D.C., libertarian Cato Institute, Siegan criticized the court for "judicial excesses" and for "usurp(ing)" functions of government belonging to the legislative and executive branches of govern- ment. ''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

For more than 20 years, Siegan and Karlin, the best man at Siegan's wedding, specialized in cut- ting through land-use and zoning regulations, dab- bling on their own in real estate projects in the Chicago suburbs. "We kind of had a supply-side view. We thought the more housing there was the better it was for people," Karlin said. In 1967 Siegan was appointed a research fellow in law and economics at the University of Chicago. There he studied the effects of no zoning in Hous- ton. Where others bad seen only an ugly sprawl of commercial and residential development that re- spected no principle of urban planning, Siegan saw a plentiful supply of cheap housing. To him, the system was clearly working in Houston. After moving to San Diego in the 1970s, Siegan advised San Diego City Councilman Fred Schnau- belt, a libertarian candidate, on legal and policy issues. Siegan was named to President Reagan's Com- m1SSion on Housing, and when the study group presented its findings in 1981, it included, not sur- prisingly, recommendations to strike down zoning regulations to boost the supply of affordable hous- ing. h i not the only consulting that Swgan, a distinguished professor of law appointed to the USD law faculty in 1973, has done for the Justice Department. Last summer he won a $15,000 grant from the Justice Department to compile a bibliography of "origmal intent." That is the hotly debated issue of whether modern-day judges should interpret the federal Constitution according to the changing cir- cumstances of the day or should attempt to stick by the original intentions of that slender docu- ment's framers. Like his good friend U.S. Attorney Gener .11 Edwin Meese, whom Siegan met during Meese's brief stint at the USD law school, Siegan adhe~es ' to the latter point of view. Opposed to the theorists who try to plumb the minds of men who have been dead for nearly two centuries is the so-called "living Constitution" school, of which Robert C. Ritchie, an American history professor and director of UCSD's own bi- centennial project, is a member. "Original intent isn't there. What's the constitu- tional basis for the Air Force or the Nuclear Reg- ulatory Commission?" Ritchie said. UCSD historian Parrish agrees. In fact, Parrish says, 18th-century colonial life was brimming with wage and price controls, tariffs and vigorous gov- ernment regulation. The infant nation under the new constitution was granted more power to control its citizens' lives than bad been exercised by the British, be said. "Sure, the Constitution protects private proper- ty from arbitrary confiscation," Parrish said, "but the framers of the Constitution would have been astonished by Bernie's argument that government play a minimal role." Parrish and other liberals say that while Siegan "poses as being concerned with economic freedom and liberty," his views are essentially "meaning- less unless you have economic security." Said Tribe, ''They reflect a philosophy . . . in support of those with wealth and property." Two years ago Reagan appointed Siegan to the national Commission on the Bicentennial of the U.S. Constitution, the group headed by former U.S. Supreme Court Chief Justice Warren Burger and charged with the task of planning the 200th birth- day party for that blueprint of government. Siegan's liberal critics worry that the scholarly debate over original intent, reaching a feverish pitch in this bicentennial year when plenty of fed- eral money is available for research projects, is being used by a Republican administration to hide a blatantly political agenda. Siegan's government-funded project to docu- ment the framers' intentions, for instance, "shows bow tightly he d eir little ne ts there (at the Justice Department)," said Broff of the Judicial Selection Project. Appointments to the federal bench are always political - equally so under Democratic adminis- trations - and the posts are bitterly fought over, many attorneys noted. Much of the criticism directed at Siegan, includ- ing several professors' disparaging remarks about Siegan's "average intellect," suggest professional jealousy, another lawyer said. "I'd be happy to see Siegan seated," said USD law professor Paul Wohlmuth, of a moderate to liberal stripe. "He talks to liberals. He engages in dialogue conscientiously. He's a good listener." Some of Siegan's constitutional law students said they were tired of seeing hit pieces on Siegan in the newspapers. Shelley Zifferblatt, a self-described "bleeding- heart liberal from the '60s" and a second-year law student, said Siegan is "eminently ethical and rea- sonable and would not bring his own personal views to the bench." ''The criticism of him bothers me," she contin- ued. "The thought of him on the 9th Circuit com- forts me. He's a man of incredible integrity."

TO ebraska Sen. Ed- ward Zorinsky wanted everybody to be more aware of the dangers of high cholesterol. His ~enate resolution designates April 5-11 as "National Know Your Choles- terol Week." On Capitol Hill, ~e planned to preside as lawmakers took cholesterol tests. B t they'll do it without him, Zorinsky has died o[ a heart attack. THE NAMES Charger qua erback D~n Fouts is touring Lon- don Belgium and West Germany with a double play: For Nike, he's promoting shoes; for the U.S. Drug Enforcement Agency, he's warning European youths about the dangers of illegal drugs. . .. Bond analyst Don Foster is back from Japan, ready to solve the trade def'cit. He saw cantaloupes elling in Tokyo at $30, water- melons at $50. So plow up Silicon , lley, he argues, and plant it in melons. CHOW LINES: The power was out at La Valencia at noon yes- terday and a sparse luncheon crowd'ate by candlelight. Then a venturesome large party came in and ordered, but waiters turned over trays bringing in. ~ight lunches Sighed one v1s1tor: "They've turned over more than they've sold." ... Former Nixon aide .John Ehrlichman will speak tomorrow night and Thursday morning to lJ.Sil-51lldents. He's made one demand of his st dent hosts: Italian dinner after tomor- row's talk. . Nita Stein erg, who opened Fisherm~n•s rill and Vic's in La Jolla, 1s out, but still cheery: "I'm going from cooking to looking." CROSSTOWN: Architect Paul • Tboryk is hobbling on crutches. When his Porsche stalled at the Mission Gorge ramp off 1-8, he jumped out to push and ran over bis own foot. (But Tboryk's tough; be kept pushing for a quar.er- mile.) ... Fred Lewis ~arked t~e 14th anniversary last 01gbt of bis ,ox Cable talk show. And for the first time, be was speechless: A cllr bit a transformer, and Im eked the show off the air. CAROUSEL: Sheriff Duffy con- " _\S a press conference tomor- row to boost next weekend as an alcohol-free weekend. Tom Wright at the National Council on Alcoholism says he's been busy telling callers it's not an April Fool's caper. . . . At their ne Murphy Canyon headquarters, KSDO employees are in the grip of a squirrelly debate: Is the S in their sign upside down? CATCHING UP: Bruce Sclieidt's travel story in the Bakersfield Californian about the Hotel del Coronado, d 1 he's seen things we miss: "The Coro- nado's pink dome is a local land- mark." . . . D.A. Ed Miller ad word from the California Dept. o Corrections that two San Diego- based lifers died in prison. They died last July; the state rushed the news this week by priority mail. .

From the late 1800s lo the New Deal the so-called Old Court threw out ~ther maximum-hour, mimmum• wage nd child-lah?r laws, a_s _well as laws protecting union orgamnng. Th t era, says a University of Cali- fornia at n 01 o historian, was a t m wb n life w nasty, brutish and short for large numbers of Ameri an people." But lb sam four d ad rep- r nt the pinnacle of American jur- lllprud nee to B rnard Siega~. a ,Um- versity of n Diego conshtutio~l law prof r, ex-columm t for a h- bcrtar1an newspaper chain, and - m t r ntly - federal appeals m T -ye r-old ie an, who lives m mystery novehst Raymond Chan- di r's old house in La Jolla, was nom- inated by P ident Reagan in Feb- ru ry to th U.S. 9th Circuit Court of Appeal, a court that decides federal appeals for California, eight other W tern stales, Guam and the Maria- na Islands. might be expected, S1egan's nomlnallon IS controversial.

BERNARD SIEGAN A controversial approach

His critics say his views are crank- ish and further to the right than those of Chief Justice Wilham Rehnquist, 1e .S. Supreme Court's most con- servative justice. His views "have been repudiated by every serious student of th~ Con- stitution for half a century and would require dismantling the "en- tire safety net of eco~mic _protec- tion." said Harvard Uruvers1ty law professor Laurence Tribe, ~rh_aps the pre-emment liberal constitullon- P/ease see SIEGAN, .A

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NOTEPAD: Competition is so tough for top conventions that some hotels don't report to ConVis their choicest business. And sometimes it's tough on con- ventioneers: Sometimes the big- gest conventions are kept off hotel announcement boards. . .. One Symphony board member is weary of hearing that direct~rs were guilty of non-support. He m- sists that, in the year before it folded, board members donated more than $1 million to the Sym- phony.... At the Sterling mili- tary housing project in Ocean- side the average female tenant is 17 years old. She has two chil- dren. Alison DaRosa assists with the Neil Morgan column.

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