WASHINGTON — After nine months of delays, the confirmation process for University of San Diego law professor Bernard Siegan finally opened Thursday, with the nominee for the U.S. 9th Circuit Court of Appeals pledging that as a judge he would be guided by legal precedent, not by his own conservatism.
"I'm not there (on the appeals court) to tell the world how it should run. . . . I wouldn't dream of imposing my will over that of the Supreme Court," Siegan said under sharp questioning from Sen. Dennis DeConcini (D-Ariz.).
The professor's libertarian positions on such questions as the government's power to regulate commerce have drawn the ire of some liberal critics and in part have stalled his nomination since February.
He was the first judicial nominee to undergo intense scrutiny by a newly formed task force of Democratic senators. And his critics, explaining their delaying of the proceedings, say that his controversial views have made Siegan deserving of a long, careful look before the hearings began.
DeConcini and Republican Sen. Gordon J. Humphrey of New Hampshire expressed regret to Siegan for what Humphrey called "an unconscionable (and) indecent" delay in the proceedings. And Siegan said that he hopes that the process can end "in short order."
But even after questioning the professor for more than 80 minutes--two earlier nominees to the Circuit Court breezed through the process Thursday in half an hour--Senate Judiciary Committee members said that he may be called back at a later time for more questioning.
One staff member called that prospect likely and said that Siegan's nomination may be slowed further by demands on the committee from the confirmation proceedings for Supreme Court nominee Douglas H. Ginsburg.
Voicing his own concerns over many of Siegan's legal positions, DeConcini said "the committee will give him very careful consideration."
DeConcini, who volunteered to chair the Siegan confirmation hearings to speed along the stalled process, took the nominee on a hard, lengthy line of questioning about Siegan's positions on the scope of equal protection under the 14th Amendment, the government's power to intrude on individual property and economic rights and respect for judicial precedent.
A 'Very Violent Statement'
Many of Siegan's libertarian positions, which come largely out of the economic influences of his University of Chicago law background, "trouble me," DeConcini said. The senator found Siegan's assertion that education is a "political right"--not a natural, fundamental right--to be a "very violent statement," DeConcini said.
But Siegan suggested that DeConcini failed to recognize the distinction between the professor's scholarly viewpoints in his extensive writings and research and the way in which he would act as a federal judge.
As a scholar, Siegan said he finds difficulty with the Supreme Court's incorporation of the establishment clause within the 14th Amendment. But as a U.S. circuit judge, he said, "I'd be laughed off the block if I were to say otherwise.
"What I think on a subject is really irrelevant," he said. "The sole question . . . is what the Supreme Court has said in a particular situation."
But DeConcini, whose questioning dominated the hearing, maintained that Siegan's personal opinions are indeed relevant to his nomination as a federal judge. DeConcini also wanted to know why Siegan, a former colleague of Atty. Gen. Edwin Meese III and an advocate of the "original intent" doctrine of judicial restraint, once wrote that the Supreme Court has often shown a disregard for the intent of the Constitution's Founding Fathers.
'A Marvelous Institution'
Siegan, again stressing that he was then speaking "as a scholar," said of the court: "I don't think it's always done what it should have done." But under questioning by DeConcini, he said: "The Supreme Court, on the whole, has been a marvelous institution" and he pledged to adhere to its decisions "without question."
Questioned by a supportive Sen. Gordon J. Humphrey (R-N.H.), Siegan also clarified his position on the 1954 Brown vs. Board of Education decision, the landmark school desegregation case that he had been quoted as saying he opposed.
"I fully agree with the judgment," he said, but "the reasoning is where I differ."