The age of Sen. Patrick J. Leahy (D-Vt.) was incorrect in an article yesterday. He is 47. (Published 2/27/88)
A controversial nominee to the federal appeals court in California yesterday urged the Senate Judiciary Committee to disregard his extensive criticisms of Supreme Court decisions and trust him to faithfully follow the high court's rulings.
Bernard H. Siegan, a 63-year-old law professor at the University of San Diego, also asked the committee to disregard his lack of federal court experience, saying that his training as a scholar "will be more important in finding what the precedent is."
Siegan, whose nomination appears in serious trouble in the assessment of a number of Justice Department officials, defended his record in his second appearance before the committee, more than a year after he was nominated by President Reagan.
Siegan, a libertarian, received a skeptical reception from several committee members. Sen. Patrick J. Leahy (D-Vt.) emphasized that Siegan, whose specialty is land use law, had never tried a case in federal court or argued an appeal, and that his only federal court experience involved bankruptcy motions 35 years ago.
"I don't question your intellectual abilities. . . . My concern on the lack of experience goes to this . . .the last time you were in federal court I was 12 years old," said the 57-year-old Leahy.
"Obviously, I have limited trial and appellate experience. I readily acknowledge that," Siegan said.
Even one of the committee's Republicans, Sen. Charles E. Grassley of Iowa, expressed concern over Siegan's controversial views that courts should exercise broad powers to overturn economic and social regulations. Siegan's views, Grassley said, "suggest a return to the discredited day of Lochner v. New York," a 1905 case that ushered in an era when the Supreme Court overturned a number of New Deal laws.
"We do have a right to pass stupid laws," Grassley said.
Siegan, a friend of Attorney General Edwin Meese III, has drawn fire from liberal groups for his writings on civil rights, free speech, separation of church and state, abortion, and other areas.
Siegan shares with rejected Supreme Court nominee Robert H. Bork an emphasis on the importance of abiding by the intent of the Constitution's framers. However, Siegan differs from Bork in a willingness to have courts intervene to overturn legislation.
Despite the controversy the nomination has sparked, yesterday's hearing was relatively low-key and nonconfrontational. "Why turn up the heat when the goose is already cooked?" a Senate aide observed.
Siegan was accompanied to the hearing by Housing and Urban Development Secretary Samuel R. Pierce Jr., who met Siegan when he served on a presidential housing commission, and said he urged the committee "in the strongest terms" to approve the nomination.
Leahy, noting that Pierce had worked on the landmark libel case of New York Times v. Sullivan, asked the secretary whether he had read Siegan's criticism of Sullivan and other libel decisions in a 1987 book.
Pierce acknowledged he had not, adding, "It's obvious that we differ, but that's the law. Judges and lawyers differ in the law." More important, he said, is that Siegan has "said that as a judge of the court of appeals he would follow the Supreme Court."
Siegan repeatedly vowed that he would ignore his personal views and his lifetime of scholarly interpretation and apply the law as interpreted by the Supreme Court. "I will do what I think the Supreme Court wants done," he said as Sen. Howell T. Heflin (D-Ala.) attempted to get Siegan to describe his views on equal protection.
"I am left in a little bit of a quandary as to what your general principles . . . would be," Heflin said.
Sen. Orrin G. Hatch (R-Utah) defended Siegan, saying he had been the victim of "exaggerated press accounts" and urged the committee to "resist the temptation to make judicial nominations just one more poltical battleground."