Laurence Silberman

Laurence Silberman
Chairman 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 January 20, 1974 – April 6, 1975
President	Richard Nixon 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
United States Solicitor 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 (age 85) York, Pennsylvania
Political party	Republican
Spouse(s)	Ricky Gaull Patricia Winn
Children	3, including Robert
Education	Dartmouth College (BA) Harvard University (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

Laurence Hirsch Silberman (born October 12, 1935) is an American lawyer, Diplomat, Jurist, and government official who serves as a circuit judge of the U.S. Court of Appeals for the D.C. Circuit. He was appointed in October 1985 by Ronald Reagan and took senior status on November 1, 2000. On June 11, 2008, George W. Bush awarded Silberman the Presidential Medal of Freedom.^[1]

Family and education[]

Born to a Jewish family in York, Pennsylvania, Silberman graduated from Dartmouth College with a Bachelor of Arts in history in 1957. He served one year in the U.S. Army, then attended the Harvard Law School, graduating in 1961 with a Bachelor of Laws degree.^[2]

His first wife, Rosalie “Ricky” Gaull Silberman, co-founder 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 was a close friend of Justice Antonin Scalia beginning when he recruited Scalia into the Ford administration.^[5] 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.^[6]

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."^[7]

He also led the development of legislation to implement “final offer selection” as a means of resolving labor disputes.^[8] 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.^[9]

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".^[10] 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."^[11]

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.^[12] 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.

In total, Silberman has held six Senate-confirmed positions and never received a dissenting vote.^[13]

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.^[14] However, after the rejection of Robert Bork, with whom Silberman had served on the District of Columbia Circuit, he was regarded as controversial.^[15] Unlike fellow conservatives Pasco Bowman II and John Clifford Wallace, Silberman even drew some opposition from Republican senators,^[16] because, although he was a judicial conservative and thus likely against Roe v. Wade as a legal matter, he was thought to be personally pro-choice.^[17] And some criticized him for having an explosive temper,^[18] though "he expects people to pound the table and shout right back."^[19] It was also reported Silberman faced criticism over legal issues arising from his time at Crocker National Bank where Silberman had been executive vice-president between 1979 and 1983,^[20] but that appears to have been pretextual given the FBI had cleared him of any wrongdoing and he had since been confirmed to the D.C. Circuit unanimously.^[21]

He was a member of the United States Foreign Intelligence Surveillance Court of Review at the time of its first ever session in 2002.^[22][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.^[23]

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]".^[24] The suit was ultimately successful, leading to a nationwide rise in pay for all federal judges as of January 1, 2014.^[25]

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”.^[26]

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".^[27] 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.^[28]
• 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.^[29] 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".^[30] The case was subsequently upheld by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008).^[31]
• 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.^[32] 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.^[33][34] 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.^[35] 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".^[36]
• Dissenting vigorously in Tah v. Global Witness Publishing, Inc. Silberman called on the Supreme Court to overturn New York Times v. Sullivan, and claimed that the New York Times and The Washington Post are "virtually Democratic Party broadsheets," and labeled "[n]early all television—network and cable—a Democratic Party trumpet." His dissent also accused big tech companies of censoring conservatives and warned that "Democratic Party ideological control" of the media may be a prelude to an "authoritarian or dictatorial regime" that constitutes "a threat to a viable democracy".^[37]

Criticism[]

"October Surprise"[]

Some 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.^[38]

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.^[39]

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."^[40]

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, he mused that in retrospect, he wished 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.^[41][42]

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.^[11]

Confederate graves[]

On June 15, 2020, The Intercept reported on an email exchange initiated by Silberman related to Confederate graves. 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." Silberman appeared to be referring to a debate over the National Defense Authorization Act, to which Senator Warren proposed an amendment requiring the renaming of military assets that bear the names of or otherwise honor anyone who served in the Confederacy. Senator Warren opposed an exception for graves and monuments,^[43] but the final version passed by the Senate included an exception for gravesites.^[44] In his email, Silberman argued that the graves of Confederate soldiers should not have the names removed merely because the dead fought for the Confederacy. He went on to argue that slavery was a sin of the entire nation, not just the South, saying "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]." Silberman explained his personal connection to the issue, stating that “My great great grandfather Never owned slaves as best I can tell”, but that his two sons fought on opposite sides in the war. Silberman’s great-grandfather fought for the union under Ulysses S. Grant and was badly wounded at Shiloh, and the other brother joined the Confederate Army and was captured at Gettysburg. Silberman concluded both should be allowed to rest in peace.

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."

Silberman responded to the clerk’s email, thanking the clerk for the thoughtful message and claiming that his "concern was limited to cemeteries" and not monuments or forts.

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 held the position of Distinguished Visitor from the Judiciary at Georgetown University Law Center from 2000 to 2019 and taught 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.

See also[]

• List of Jewish American jurists

References[]

External links[]

• Appearances on C-SPAN
• FJC Bio