The Leadership Conference on Civil and Human Rights

Volume 3, Number 1

SIEGAN'S NOMINATION TO THE COURT OF APPEALS OPPOSED BY THE CIVIL RIGHTS AND PUBLIC INTEREST COMMUNITY

San Diego Law Professor Bernard Siegan, nominated by the President on February

2, 1987, to fill a vacancy on the 9th Circuit Court of Appeals is strongly opposed by civil rights and public interest groups because of his extraordinary views on constitutional doctrines relating to civil rights, separation of church and state, freedom of speech, and economic regulation.

For example, the nominee has espoused the view that the 114th Amendment's Equal Protection Clause does not prohibit states from discriminating against minorities and women in education, jury service, voting and office holding. Professor Siegan has also stated that the Brown v. Board of Education decision was decided on the wrong grounds, and that the courts have no constitutional authority to force recalcitrant school districts to desegregate.

The following discussion of Professor Siegan's judicial philosophy as it relates to civil rights borrows heavily from a report by People for the American Way Action Fund, and a report prepared by 26 organizations and available from the Judicial Selection Project, Alliance for Justice.

Civil rights issues

Professor Siegan brings to all constitutional questions a philosophy that views the Constitution as a static document to be interpreted by the literal intent of the Founding Fathers. His philosophy allows no room for interpretation of the Constitution to accommodate modern day issues, as he views the document as frozen in time. Opponents of this view see the Constitution as a living document written in broad terms which were "deliberately left undefined so that future generations could apply new knowledge and experience in interpreting constitutional questions" (People for the American Way Report).

In his writings, Siegan makes a distinction between natural or civil rights - the protection of life, liberty, and property which he contends the Constitution authorizes the courts to protect, and political rights - education, voting, jury service and holding office which he contends can be judicially protected only if Congress enacts laws. Thus, Siegan holds that the Equal Protection Clause of the 14th Amendment does not prohibit states from discriminating against minorities and women in education, jury service, voting, and office holding as these are political rights and thus not directly protected by the Constitution.

Siegan has also suggested that decisions of the Supreme Court barring gender discrimination are morally objectionable. In his book, The Supreme Court's Constitution: An Inquiry Into Judicial Review and Its Impact on Society, he wrote:

"A definitional equality in gender is being protected at a price possibly a very significant one. Making this outcome even harder to justify is the dubious authority of the Court in the matter. As has frequently occurred in other areas, the Court's projected moral position is compromised by the harm it imposes on those who trace their rights to original understanding. [The Court's ruling in the gender area]... results in both benefits and costs and when properly effected is morally as well as legally objectionable."