Today we are surprised when the judicial wars do not turn violent. The relatively easy confirmations of John Roberts and Samuel Alito reflected their qualifications and the administration’s political savvy. If Democrats gain seats in the Senate in November, the treatment of Robert Bork is likely to return as the Democratic model of a perfect confirmation process.
But there was a time when judicial nominations were generally approved irrespective of political disagreements. That was still the case when Ronald Reagan became president. But by his second term the rules had changed, and Bernard H. Siegan became one of the first victims.
Bernie, who died last week at 81, was a legal giant, an innovative thinker who transformed the way we think about land use regulation, property rights, economic liberty, and the 14th Amendment. Indeed, he was one of the leading proponents of the view that the Constitution protected economic freedom as well as free speech and other “personal” liberties. More than two decades ago he published Economic Liberties and the Constitution, a seminal work in the field.
However, he was no ivory tower egg-head. Some 30 years ago the op-ed editor of the Orange County Register, Ken Grubbs, recruited Bernie to write opinion pieces on legal topics. (The left later used the articles, Grubbs notes ruefully, “to sink his [judicial] nomination.”)
Bernie never was captured by his many achievements. Soft-spoken, kind, and courteous, Bernie was well-liked by his students at the University of San Diego Law School. With a warm smile and wry sense of humor, he enlivened any conversation.
Unfortunately, being a gentleman did not put him in good stead in Washington. His belief that the Constitution protected economic liberty was anathema to the usual left-wing suspects, who believed that the Constitution enshrined most every “right” except those actually mentioned in the text or supported by the nation’s Founders
President Ronald Reagan nominated him to the 9th Circuit Court of Appeals, long a liberal haven, but in 1988 the Democratic-controlled Senate Judiciary Committee blocked the appointment. The hearings were painful to watch, as left-wing hacks worked assiduously to embarrass and discredit him. His nomination became Bork II, a public footnote to the rejection of the nomination of Robert Bork to the Supreme Court.
He was disappointed, but carried on the fight. Bernie continued to teach generations of future lawyers. He wrote several more books, making 13 in all — The Supreme Court’s Constitution and Property and Freedom were but two.
Moreover, he delighted in the spread of human freedom after the collapse of the Soviet empire, and consulted with nearly a dozen nations on constitution writing. He also authored books on this topic: Adopting a Constitution to Protect Freedom and Abundance was read more abroad than at home. A former student, Mark Brnovich, writes of how Bernie recently had turned his attention to China, which desperately needs to continue down the path toward economic liberty.
Bernie’s success came despite painful personal challenges. His parents were poor and he lost his first wife, Sharon, to cancer more than 20 years ago. She was a loving partner and her death was a bitter blow. But he found happiness when he remarried — Shelley was an adult student at the law school whose intellect well-matched his own.
I last saw him late last year, when several of us “regulars” got together for dinner. A disparate group of conservatives and libertarians, we had been meeting for years whenever I was out visiting my father near San Diego. Bernie was a bit slower, but his wit was as sharp as ever. There was no reason to think that our gatherings would not go on for years to come.
Alas, it was not to be.
We owe much to Bernie. He helped reinvigorate both political support and judicial respect for property rights; he showed how policy debates could be conducted with civility and integrity. He will be missed, especially by his many friends.
Doug Bandow is the author of Washington’s Bipartisan Big Government Consensus (forthcoming, Allegiance Press). He is a graduate of Stanford Law School and a member of the California and D.C. Bars.