Laurence Silberman
Laurence Hirsch Silberman is a Senior United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. He was appointed in October 1985 by Ronald Reagan and took senior status on November 1, 2000. On June 11, 2008, Silberman was named a recipient of the Presidential Medal of Freedom, the highest civilian honor granted by the government of the United States.
Family and education
Born in York, Pennsylvania, Silberman graduated from Dartmouth College with an Artium Baccalaureus degree in 1957 and Harvard Law School with a Bachelor of Laws in 1961. He served in the United States Army from 1957 to 1958. His first wife, Rosalie "Ricky" Gaull Silberman, co-foundress of the Independent Women's Forum, died on February 17, 2007. Silberman has since married Patricia Winn Silberman. Silberman has three children, Robert S. Silberman, Kate Balaban, and Anne Otis.Silberman is also a friend of Justice Clarence Thomas and in 1989 encouraged a young and then-reluctant Thomas to accept a federal judgeship on the United States Court of Appeals for the District of Columbia Circuit.
Career
Silberman has worked in the private sector as a partner at the law firms Moore, Silberman & Schulze in Honolulu and Morrison & Foerster and Steptoe & Johnson in Washington, D.C. He has also served as Executive Vice President of Crocker National Bank in San Francisco. His government service includes stints as an attorney in the NLRB's appellate section, as Solicitor of Labor from 1969 to 1970, and as Undersecretary of Labor from 1970 to 1973. As Solicitor, he was largely responsible for developing the requirement of goals and timetables as an enforcement device for the affirmative action order. He subsequently regretted his stance, writing, "Our use of numerical standards in pursuit of equal opportunity has led to the very quotas guaranteeing equal results that we initially wished to avoid."He also led the development of legislation to implement "final offer selection" as a means of resolving labor disputes. As Undersecretary, he repeatedly clashed with Charles "Chuck" Colson and tendered his resignation in order to compel the hiring of a black regional director in New York in 1972.
As Deputy Attorney General of the United States from 1974 to 1975, Silberman was tasked with reviewing J. Edgar Hoover's secret files, which he has described as "the single worst experience of my long governmental service." Silberman has stated that "this country—and the Federal Bureau of Investigation—would be well served if name were removed from the bureau's building. It is as if the Defense Department were named for Aaron Burr. Liberals and conservatives should unite to support legislation to accomplish this repudiation of a very sad chapter in American history."
Silberman also served briefly as Acting Attorney General during the Watergate crisis, an experience he has described as awkward: "We were simultaneously carrying out President Nixon's agenda and supporting those who were vigorously prosecuting him."
Gerald Ford appointed Silberman as Ambassador to Yugoslavia from 1975 to 1977. At the same time, Silberman also served as the Presidential Special Envoy for International Labor Organization Affairs. As Ambassador, he succeeded in freeing an American, Laszlo Toth, who had been falsely imprisoned by the regime as a "CIA agent," by putting pressure on both the Yugoslav regime and the State Department. During the campaign for the 1980 presidential election, he was co-chairman of Ronald Reagan's foreign policy advisors. From 1981 to 1985, he served as a member of the General Advisory Committee on Arms Control and Disarmament and the Defense Policy Board.
Federal judicial service
Silberman was nominated by President Ronald Reagan on September 11, 1985, to the United States Court of Appeals for the District of Columbia Circuit, to a new seat created by 98 Stat. 333. He was confirmed by the United States Senate on October 25, 1985, and received commission on October 28, 1985. He assumed senior status on November 1, 2000.Silberman was on the short list of potential nominees to the Supreme Court on three separate occasions in 1987, 1990, and 1991.
He was a member of the United States Foreign Intelligence Surveillance Court of Review at the time of its first ever session in 2002.
On February 6, 2004, Silberman was appointed co-chairman of the Iraq Intelligence Commission, an independent blue-ribbon panel created to investigate U.S. intelligence surrounding the United States' 2003 invasion of Iraq and Iraq's weapons of mass destruction. In the wake of the resignation of Alberto Gonzales as United States Attorney General in 2007, Silberman was mentioned as a possible successor.
In 2008, Silberman, joined by five other federal court colleagues, filed suit against the United States, "claiming that when Congress refused to authorize statutory cost-of-living raises for federal judges, it violated the Compensation Clause ." The suit was ultimately successful, leading to a nationwide rise in pay for all federal judges as of January 1, 2014.
In 2015, Silberman wrote an op-ed in the Wall Street Journal, writing that the charge that "President Bush deceived the American people about the threat from Saddam" reminded him of "a similarly baseless accusation that helped the Nazis come to power in Germany".
Legal opinions
As a judge, Silberman has authored a number of noteworthy opinions:- In In re Sealed Case, 838 F.2d 476, Silberman held that the procedures for appointing independent counsels violated the Appointments Clause of the Constitution and the separation of powers, because they interfered with the President's ability to ensure that the laws are "faithfully executed." This decision was subsequently reversed by the Supreme Court in Morrison v. Olson, 487 U.S. 654, over a vigorous dissent by Justice Antonin Scalia. After the Clinton impeachment episode, many changed their minds on this issue and praised Judge Silberman and Justice Scalia's position.
- In a later per curiam decision captioned , 310 F.3d 717, the court upheld a provision of the Patriot Act that made it easier for law enforcement officers and intelligence officers to share information with each other. This was an important decision involving interpretation of the Patriot Act, the use of foreign intelligence, and the role of the FISA Court. Silberman subsequently disclosed that he had in fact written the opinion.
- In Parker v. District of Columbia, 478 F.3d 370, Silberman held that the District of Columbia's flat ban on the registration and carrying of firearms violated the Second Amendment right "to keep and bear arms." The case was subsequently upheld by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570.
- In Seven-Sky v. Holder, 661 F.3d 1, Silberman authored an opinion upholding the Affordable Care Act as a constitutional exercise of the Commerce Power, on the grounds that individuals' decisions to remain uninsured, in the aggregate, have a substantial effect on interstate commerce. At the time, a number of commentators viewed Judge Silberman's opinion as an important bellwether of how the Supreme Court might decide the case. The Supreme Court ultimately rejected Judge Silberman's reasoning in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, by a vote of 5 to 4, upholding the Affordable Care Act instead as an exercise of the taxing power. Some commentators praised Silberman, a Reagan appointee, for his "judicial restraint" in upholding the signature statute of a Democratic administration. Writing in Slate, Simon Lazarus described Silberman as a "conservative icon" and noted that "despite intense short-term political pressures and long-term ideological stakes, leading conservative jurists appear likely to stick to their traditional judicial restraint canon when deciding the fate of the ."
Criticism
"October Surprise"
Some politically hostile commentators have speculated that Silberman may have been involved in the so-called "October Surprise" with respect to the Iran hostage crisis prior to the 1980 presidential election, alleging that Silberman and others had attended meetings to negotiate the delayed release of the hostages by the Iranian government.Silberman has publicly responded as follows to the allegations:
On January 3, 1993, the bipartisan Joint Report of the Task Force to Investigate Certain Allegations Concerning the Holding of American Hostages by Iran in 1980, also known as the "October Surprise Task Force," was released. The Task Force, led by Rep. Lee H. Hamilton and Rep. Henry J. Hyde, specifically concluded that "there is wholly insufficient evidence of any communications by or on behalf of the 1980 Reagan Presidential campaign with any persons representing or connected with the Iranian government or with those holding Americans as hostages during the 1979-1981 period" and that "there is no credible evidence supporting any attempt or proposal to attempt, by the Reagan Presidential Campaign—or persons representing or associated with the campaign—to delay the release of the American hostages in Iran."
Iran-Contra Affair
Silberman served on a panel of the D.C. Circuit in U.S. vs. Oliver L. North, 910 F.2d 843, in which a per curiam opinion was issued that overturned the conviction of Oliver North, who had been a key figure in perpetrating the Iran-Contra Affair.In his memoir, Firewall, published seven years after the case in 1997, Lawrence Walsh, the Independent Counsel appointed by President Reagan to investigate the Iran-Contra affair, mused that in retrospect, he wishes that he had moved for Silberman's recusal from the panel:
Silberman has also observed that David Brock, latterly a Silberman critic, has published a refutation of Lawrence Walsh's characterization of Judge Silberman's involvement in the North case:
Clarence Thomas confirmation
In his book Blinded by the Right: The Conscience of an Ex-Conservative, David Brock dedicates several pages to criticizing Silberman.In 2006, Silberman responded to Brock's allegations in a posting on Michael Barone's U.S. News & World Report blog.
Confederate Monuments
On June 15, 2020, reported on an email exchanged initiated by Silberman and focused on Confederate statutes. In his email to all staff at the court, Silberman wrote, “Since I am about to be interviewed I thought it would be appropriate to unburden myself in opposition to the madness proposed by Senator Warren: the desecration of Confederate graves.” He went on to say, “It’s important to remember that Lincoln did not fight the war to free the Slaves Indeed he was willing to put up with slavery if the Confederate States Returned ,” and went on “My great great grandfather Never owned slaves as best I can tell.”The email went unanswered for roughly a day, until a clerk responded saying, “I am one of only five black law clerks in this entire circuit. However, the views I express below are solely my own.” The clerk went on, “ince no one in the court’s leadership has responded to your message, I thought I would give it a try.” The response included an analysis of how a newly freed slave would view Lincoln vis-a-vis Silberman's comments, as well as the point of view that the Confederacy was at its heart about supporting slavery and that in the end the Confederacy was defeated. The clerk ended his email by using Silberman's own legal writings and logic. "...I will note that the current movement to rename Government owned facilities is in line with your previous opinions on the importance of names and what they represent. In 2005, you publicly advocated for the removal of J. Edgar Hoover’s name from the FBI Building due to the problematic material you came across in your review of his FBI files after his death. You equated it to the Defense Department being named for Aaron Burr. In view of your opinion of J. Edgar Hoover’s history and your advocacy for renaming the FBI building because of the prominence it provides Hoover’s legacy, it is very strange that you would be against renaming our military facilities, since the legacy of the Confederacy represents the same thing. This moment of confronting our nation’s racial history is too big to be disregarded based on familial ties."