Laurence Silberman

Laurence Hirsch Silberman (born October 12, 1935) 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.[1]

Laurence Silberman
Chair of the Iraq Intelligence Commission
In office February 6, 2004 – March 31, 2005 Served with Chuck Robb
President	George W. Bush
Preceded by	Position established
Succeeded by	Position abolished
Judge of the United States Foreign Intelligence Surveillance Court of Review
In office June 18, 1996 – May 18, 2003
Nominated by	William Rehnquist
Preceded by	Robert W. Warren
Succeeded by	Ralph K. Winter Jr.
Senior Judge of the United States Court of Appeals for the District of Columbia Circuit
Incumbent
Assumed office November 1, 2000
Judge of the United States Court of Appeals for the District of Columbia Circuit
In office October 28, 1985 – November 1, 2000
Nominated by	Ronald Reagan
Preceded by	Seat established by 98 Stat. 333
Succeeded by	Brett Kavanaugh
United States Ambassador to Yugoslavia
In office May 8, 1975 – December 26, 1976
President	Gerald Ford
Preceded by	Malcolm Toon
Succeeded by	Lawrence Eagleburger
14th United States Deputy Attorney General
In office 1974–1975
President	Gerald Ford
Preceded by	William Ruckelshaus
Succeeded by	Harold R. Tyler, Jr.
United States Under Secretary of Labor
In office 1970–1973
President	Richard Nixon
Preceded by	James Day Hodgson
Succeeded by	Richard F. Schubert
Solicitor of the United States Department of Labor
In office 1969–1970
President	Richard Nixon
Preceded by	Charles Donahue
Succeeded by	Peter Nash
Personal details
Born	Laurence Hirsch Silberman (1935-10-12) October 12, 1935 York, Pennsylvania
Political party	Republican
Spouse(s)	Ricky Gaull Patricia Winn
Education	Dartmouth College (BA) Harvard Law School (LLB)

Silberman (right) with President George W. Bush and Chuck Robb announcing the formation of the Iraq Intelligence Commission in 2004

Silberman and President George W. Bush in 2008

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.[2] 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,[3] and Anne Otis.[4]

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.[5]

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."[6]

He also led the development of legislation to implement "final offer selection" as a means of resolving labor disputes.[7] 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.[8]

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."[9] Silberman has stated that "this country—and the Federal Bureau of Investigation—would be well served if [Hoover's] 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."[10]

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.[11] 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.[2]

Silberman was on the short list of potential nominees to the Supreme Court on three separate occasions in 1987, 1990, and 1991.[12]

He was a member of the United States Foreign Intelligence Surveillance Court of Review at the time of its first ever session in 2002.[13][2][2]

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.[14]

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 [of the Constitution]."[15] The suit was ultimately successful, leading to a nationwide rise in pay for all federal judges as of January 1, 2014.[16]

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".[17]

Legal opinions

As a judge, Silberman has authored a number of noteworthy opinions:

• In In re Sealed Case, 838 F.2d 476 (1988), 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."[18] This decision was subsequently reversed by the Supreme Court in Morrison v. Olson, 487 U.S. 654 (1988), over a vigorous dissent by Justice Antonin Scalia.[19] After the Clinton impeachment episode, many changed their minds on this issue and praised Judge Silberman and Justice Scalia's position.[20]
• In a later per curiam decision captioned In re: Sealed Case No. 02-001, 310 F.3d 717 (2002), 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.[21] 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 (2007), 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."[22] The case was subsequently upheld by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008).[23]
• In Seven-Sky v. Holder, 661 F.3d 1 (2011), 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.[24] 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.[25][26] The Supreme Court ultimately rejected Judge Silberman's reasoning in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), by a vote of 5 to 4, upholding the Affordable Care Act instead as an exercise of the taxing power.[27] 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 [Affordable Care Act]."[28]

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.[29]

Silberman has publicly responded as follows to the allegations:

In the early fall of 1980 when I was Co-Chairman of Governor Reagan's foreign policy advisors and then a San Francisco banker, I came back to Washington for a meeting of Governor Reagan's advisors. Dick Allen, who subsequently became President Reagan's National Security Advisor, was playing a similar role in the campaign. As our session ended (I recall it dealt with Arab-Israeli issues), Dick asked me if I could accompany him to a meeting at the L'Enfant Hotel. He explained that Bud McFarlane, then working for Senator Tower, wished him to see someone who had information on the hostage crisis—which, of course, was a matter of great political consequence to both campaigns. He asked me to join him, as an ex-Deputy Attorney General, because he was a bit apprehensive. At about noon McFarlane walked into the lobby with a gentleman whom I remembered as a Moroccan. But, as Dick Allen's contemporaneously-written memorandum had it, the man was a Malaysian named Mohammed (at least I got the "M" right). He was a fervent supporter of the Shah and an adversary of the Iranian revolution, but he was definitely not an Iranian, still less a representative of the Iranian government [the contrary of which assertion being the essence of the allegations of inappropriate contact with the Iranian government]. He was also hostile to the Carter Administration for having abandoned the Shah. It was his plan to contact someone with influence in Iran to propose that the hostages be released before the election to Governor Reagan, thereby embarrassing President Carter. I was shocked and responded spontaneously that we Americans have only one President at a time, and although Dick asked him for any actual information he might have on the hostages—which he did not have—we left after only a few minutes. I advised Dick to write a memo of the meeting, which he did. Unfortunately the memo, subsequently authenticated by the FBI, was mislaid for years. Ironically, it was I who unwittingly initiated the so-called "October Surprise" story, which grew into an utterly fantastic tale, even including George H. W. Bush's alleged secret trips to Paris to meet with Iranian emissaries. Bill Safire heard something of the L'Enfant Plaza meeting when he was doing a rather critical story on McFarlane, who had been Reagan's National Security Advisor. He called me (I was by then on the bench), and I told him what occurred. He made brief mention of it in a column raising, perhaps, unfair questions about McFarlane's judgment—it may well be that McFarlane was acting for Senator Tower.[30]

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 (D) and Rep. Henry J. Hyde (R), 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."[31]

Iran-Contra Affair

Silberman served on a panel of the D.C. Circuit in U.S. vs. Oliver L. North, 910 F.2d 843 (1990), 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:

Yet I was reluctant to request that Silberman disqualify himself. Prior government service or political activity did not bar him from serving on the panel. His unfavorable view of independent counsel, if it arose in the course of litigation rather than outside the courtroom, was not a basis for disqualification. Too late, I learned that he had a personal animus: He despised Judge Gerhardt Gesell [who presided over the North case in the lower court]. Indeed, Silberman had stopped having lunch in the judges' lunchroom because of his antipathy for Gesell. Had I known that, the scales certainly would have tipped in favor of my seeking his recusal.[32][33]

Silberman has also observed that David Brock, latterly a Silberman critic (see below), has published a refutation of Lawrence Walsh's characterization of Judge Silberman's involvement in the North case:

I am still gratified, however, by Brock's review of Lawrence Walsh's book, which he has never (or at least, not yet) repudiated. In that review, Brock, by interviewing federal judges, demolished Walsh's bizarre and unique claim that I should have recused myself from sitting on the North case because of my supposed hostility to the federal district judge who decided the case. As Brock established, that assertion—which no one ever heard of as a ground for recusal—was untrue.[34]

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.[35]

Confederate Monuments

On June 15, 2020, The Intercept 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 [sic] Indeed he was willing to put up with slavery if the Confederate States Returned [sic],” 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, “[s]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."

Academic career

Silberman was a Lecturer at the University of Hawaii Law School from 1962 to 1963. He was an Adjunct Professor of Administrative Law at Georgetown University Law Center from 1987 to 1994 and from 1997 to 1999, at NYU from 1995 to 1996, and at Harvard in 1998. He currently holds the position of Distinguished Visitor from the Judiciary at Georgetown University Law Center and teaches both administrative law and labor law. Silberman received the Charles Fahy Distinguished Adjunct Professor Award for the 2002-2003 academic year. He has also received a Lifetime Service Award (2006) and a Distinguished Service Award (2007) from the Federalist Society chapters of Georgetown and Harvard, respectively.

References

1. "Statement by the Press Secretary". georgewbush-whitehouse.archives.gov.
2. "Silberman, Laurence Hirsch - Federal Judicial Center". www.fjc.gov.
3. Dec 2009, Kate Silberman Balaban ’81 | Nov-. "Soccer Mom". Dartmouth Alumni Magazine. Retrieved 2020-08-14.
4. "WEDDINGS; Anne Silberman, Nathaniel Otis". The New York Times. 1998-06-28. ISSN 0362-4331. Retrieved 2020-08-14.
5. "Part VI: Becoming a Judge — and perhaps a Justice". ABC News. 1 October 2007.
6. Silberman, Laurence (Aug 11, 1977). "The Road to Racial Quotas". Wall Street Journal.
7. Silberman, Laurence (Spring 2012). "The Development of 'Final Offer Selection'". The Green Bag.
8. Hersh, Seymour (July 1, 1973). "Colson Is Accused of Improper Use of His Influence". New York Times.
9. "Opinion & Reviews - Wall Street Journal". www.opinionjournal.com.
10. ""Judge Silberman's response to Dasvid Brock's book," U.S. News & World Report (Aug. 18, 2006)".
11. Malcolm W. Browne, "Tito Attacks U.S. Envoy for 'Pressure Campaign,'" New York Times Aug. 1, 1976.
12. "He's Always on the Short List," Charley Roberts, Los Angeles Daily Journal, 1992.
13. "www.thememoryhole.org / server maintenance". www.thememoryhole.org.
14. Patterson, Thom. "Job opening for attorney general with credibility". www.cnn.com.
15. Frankel, By Alison. "Federal Circuit: Congress can't renege on pay promises to judges".
16. "Federal judges in cost-of-living suit collect a 14 percent raise after years of legal battles". Washington Post.
17. Brendan James, Federal Appeals Judge Compares People Who Say Bush Lied To Rise Of Nazis Talking Points Memo Feb 9, 2015
18. In re SEALED CASE (Three Cases), 838 F.2d 476 (D.C. Cir. 1988).
19. Morrison v. Olson, 457 U.S. 654 (1988).
20. Dartmouth Alumni Magazine, Nov./Dec. 2008, p. 48.
21. In re: Sealed Case No. 02-001, 310 F.3d 717 (United States Foreign Intelligence Surveillance Court of Review 2002).
22. Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).
23. District of Columbia v. Heller, 554 U.S. 570 (2008), 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).
24. Seven-Sky v. Holder, 661 F.3d 1, 14–20 (D.C. Cir. 2011).
25. Simon Lazarus (2011-11-09). "May It Please the Court." Slate.com. Retrieved 2012-11-18.
26. Noah Feldman (2011-11-13). "Conservative Health-Care Split Offers Court a Path". Bloomberg. Retrieved 2012-11-18.
27. National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012), 132 S. Ct. 2566 (2012)
28. "Why this week's decision upholding Obamacare may carry extra eight at the Supreme Court," Simon Lazarus, Slate (Nov. 9, 2011).
29. "Surprising Look At Hostage Scandal".
30. [32 Harv. J.L. & Pub. Pol'y 503. See also Dartmouth Alumni Magazine (Nov./Dec. 2008), at pp. 49-50.]
31. United States. (31 July 1993). "Joint report of the Task Force to Investigate Certain Allegations Concerning the Holding of American Hostages by Iran in 1980 ("October Surprise Task Force")". [U.S. G.P.O.] : For sale by the U.S. G.P.O., Supt. of Docs. – via Hathi Trust.
32. [Firewall, by Lawrence Walsh, pp. 249-50.]
33. "American Spectator American Spectator - Insanity or Vanity? The Case Against Lawrence Wlash". search.opinionarchives.com.
34. "Judge Silberman's Response to David Brock's Book, U.S. News & World Report (Aug. 18, 2006)".
35. "Judge Silberman's response to David Brock's book". Retrieved 2015-10-07.

External links

• Appearances on C-SPAN
• FJC Bio

Political offices
Preceded by James Day Hodgson	United States Under Secretary of Labor 1970–1973	Succeeded by Richard Schubert
Legal offices
Preceded by William Ruckelshaus	United States Deputy Attorney General 1974–1975	Succeeded by Harold R. Tyler, Jr.
New seat	Judge of the United States Court of Appeals for the District of Columbia Circuit 1985–2000	Succeeded by Brett Kavanaugh
Preceded by Robert W. Warren	Judge of the United States Foreign Intelligence Surveillance Court of Review 1996–2003	Succeeded by Ralph K. Winter Jr.
Diplomatic posts
Preceded by Malcolm Toon	United States Ambassador to Yugoslavia 1975–1976	Succeeded by Lawrence Eagleburger
Government offices
New office	Chair of the Iraq Intelligence Commission 2004–2005 Served alongside: Chuck Robb	Position abolished