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.
