Laurence Silberman

Laurence Silberman
Born	Laurence Hirsch Silberman (1935-10-12) 12 October 1935 York, Pennsylvania, U.S.
Died	2 October 2022(2022-10-02) (aged 86)
Occupation(s)	Jurist, diplomat, professor
Years active	1961–2022
Known for	United States Court of Appeals for the District of Columbia Circuit judge; U.S. Ambassador to Yugoslavia; Presidential Medal of Freedom recipient
Notable work	Co-chair of the Iraq Intelligence Commission; influential judicial rulings on constitutional law

Laurence Hirsch Silberman (October 12, 1935 – October 2, 2022) was a distinguished American jurist and diplomat who served on the United States Court of Appeals for the District of Columbia Circuit from 1985 until his passing. Appointed by President Ronald Reagan in October 1985, he transitioned to senior status on November 1, 2000. On June 11, 2008, President George W. Bush honored Silberman with the Presidential Medal of Freedom.

Early life and education

Born in 1935 into a Jewish family in York, Pennsylvania, Silberman earned a Bachelor of Arts degree in history from Dartmouth College in 1957. Following six months of active duty in the US Army and an additional five-and-a-half years in the reserves, he pursued legal studies at Harvard Law School, obtaining his Bachelor of Laws degree in 1961.

Career

Silberman’s legal career included partnerships at firms such as Moore, Silberman & Schulze in Honolulu, as well as Morrison & Foerster and Steptoe & Johnson in Washington, D.C. He also held the position of Executive Vice President at Crocker National Bank in San Francisco. His public service roles comprised work as an attorney within the appellate section of the National Labor Relations Board, Solicitor of Labor from 1969 to 1970, and Undersecretary of Labor between 1970 and 1973. During his tenure as Solicitor, he pioneered the implementation of goals and timetables to enforce affirmative action directives, though he later expressed reservations regarding quotas that emerged from these policies. Additionally, he championed legislation endorsing "final offer selection" as a mechanism for resolving labor disputes. As Undersecretary, Silberman encountered conflicts with Charles Colson and ultimately resigned to support the appointment of a black regional director in New York.

In January 1974, President Richard Nixon nominated Silberman to serve as Deputy Attorney General. During this period, he reviewed the confidential files compiled by J. Edgar Hoover, describing this task as "the single worst experience" of his government service and recommending that Hoover’s name be removed from the FBI headquarters. Amidst the Watergate scandal, Silberman briefly acted as Attorney General. His resignation was accepted by President Gerald Ford pending confirmation of a successor.

Appointed by Ford as ambassador to Yugoslavia in April 1975, Silberman held this diplomatic post until stepping down during the transition to President Jimmy Carter’s administration. Concurrently, he served as Presidential Special Envoy for International Labor Organization Affairs. In his ambassadorial role, he successfully advocated for the release of an American wrongfully imprisoned on espionage charges by Yugoslav authorities. During the 1980 presidential campaign, Silberman co-led Ronald Reagan’s foreign policy advisory team. From 1981 to 1985, he contributed to both the General Advisory Committee on Arms Control and Disarmament and the Defense Policy Board.

Throughout his career, Silberman received Senate confirmation for six different appointments without encountering opposition.

Federal judicial service

President Ronald Reagan nominated Silberman on September 11, 1985, to fill a newly created seat on the United States Court of Appeals for the District of Columbia Circuit established by statute (98 Stat. 333). The Senate confirmed him on October 25, 1985, and he officially received his commission three days later. He assumed senior status on November 1, 2000.

Silberman appeared on the shortlist for nomination to the U.S. Supreme Court on three occasions—in 1987, 1990, and 1991. After Robert Bork's rejection—who had served alongside Silberman on the D.C. Circuit—he became regarded as a contentious candidate. Unlike conservative contemporaries such as Pasco Bowman II and John Clifford Wallace, some Republican senators opposed him due to his personal pro-choice views despite his judicial conservatism that likely conflicted with Roe v. Wade. Critics pointed to his temper during his Deputy Attorney General tenure; however, supporters emphasized his administrative skills and decisiveness. Allegations linked to his time at Crocker National Bank were cleared following FBI investigation and unanimous Senate approval. He also served on the inaugural session of the United States Foreign Intelligence Surveillance Court of Review in 2002.

On February 6, 2004, Silberman was named co-chair of the Iraq Intelligence Commission, an independent body tasked with examining U.S. intelligence before the 2003 invasion of Iraq and claims regarding weapons of mass destruction. After Alberto Gonzales resigned as Attorney General in 2007, Silberman was considered a potential candidate for that role.

In 2008, along with five other senior judges, Silberman filed suit against the United States over Congress’s refusal to approve statutory cost-of-living adjustments for federal judges’ salaries—arguing this violated the Compensation Clause. Despite opposition from the Federal Judges Association, their lawsuit prevailed, leading to a nationwide pay increase effective January 1, 2014.

In a Wall Street Journal opinion piece published in 2015, Silberman drew parallels between accusations that "President Bush deceived the American people about Saddam Hussein" and unfounded claims that contributed to Nazi Germany's rise.

In June 2020, Silberman circulated an email condemning Senator Elizabeth Warren’s amendment aimed at renaming Confederate military installations—labeling it "madness" and "the desecration of Confederate graves." An African American law clerk responded by emphasizing the Confederacy’s association with slavery and noted Silberman's previous support for renaming FBI headquarters. The amendment was ultimately incorporated into the final version of the NDAA 2021.

In October 2021, Silberman was honored with the first-ever Justice Clarence Thomas First Principles Award recognizing his judicial contributions. The Wall Street Journal editorial board lauded him as "one of the all-time giants of the federal bench" and arguably "the most influential judge never to have sat on the Supreme Court."

Yale Law School demonstration

On March 17, 2022, Silberman sent an email to all Article III federal judges regarding a demonstration at Yale Law School. He recommended that students who interrupted a Federalist Society event by vocally opposing a speaker should be disqualified from future clerkship opportunities, citing their apparent disregard for free speech values. The discussion panel focused on remedies for First Amendment infringements and included Monica Miller, legal director of the American Humanist Association, alongside Kristen Waggoner, general counsel for Alliance Defending Freedom. Silberman's remarks elicited a range of responses, with some opposing and others endorsing his viewpoint.

Judicial rulings

During his judicial tenure, Silberman authored numerous influential rulings shaping legal and regulatory landscapes:

• In In re Sealed Case, 838 F.2d 476 (1988), Silberman determined that the appointment process for independent counsels contravened the Appointments Clause and principles of separation of powers, thereby restricting presidential enforcement authority. The Supreme Court later reversed this judgment in Morrison v. Olson, 487 U.S. 654 (1988).

• Authoring a per curiam opinion in In re: Sealed Case No. 02-001, 310 F.3d 717 (2002), Silberman upheld a Patriot Act provision that enabled enhanced information exchange between law enforcement and intelligence agencies, reinforcing the jurisdiction of the FISA Court.

• In Parker v. District of Columbia, 478 F.3d 370 (2007), he ruled that the District’s prohibitions on firearm registration and carrying infringed upon the Second Amendment. This decision was subsequently affirmed by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008).

• In Seven-Sky v. Holder, 661 F.3d 1 (2011), Silberman upheld the constitutionality of the Affordable Care Act under the Commerce Clause, reasoning that individuals’ choices to forgo insurance significantly affect interstate commerce. This ruling was viewed as an important predictor of Supreme Court action, although the high court ultimately upheld the ACA through its taxing authority in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012). Despite being appointed by Reagan, Silberman received commendations for judicial restraint in endorsing a landmark statute from a Democratic administration.

• In his dissent in Tah v. Global Witness Publishing, Inc., Silberman advocated overturning New York Times v. Sullivan, accused major media outlets of Democratic partisanship, criticized large technology firms for suppressing conservative voices, and cautioned that media dominance by one political faction could imperil democratic governance.

These rulings underscore Silberman’s significant role in shaping constitutional interpretation related to governmental powers, regulatory policies, and prominent national legislation.

Academic contributions

Silberman’s academic career included teaching at the University of Hawaiʻi from 1962 to 1963 and serving as an adjunct professor specializing in Administrative Law at Georgetown University Law Center (1987–1994, 1997–1999), NYU (1995–1996), and Harvard (1998). He held the position of Distinguished Visitor from the Judiciary at Georgetown Law Center between 2000 and 2019, focusing on administrative and labor law instruction. His accolades include the Charles Fahy Distinguished Adjunct Professor Award (2002–2003) as well as Lifetime Service (2006) and Distinguished Service Awards (2007) from Federalist Society chapters at both Georgetown and Harvard.

"October Surprise"

There have been allegations suggesting Silberman’s participation in the so-called "October Surprise" related to the Iran hostage crisis prior to the 1980 presidential election, with claims that he was present at discussions aimed at postponing the hostages' release.

Silberman addressed these accusations by stating:

The bipartisan Joint Report issued by the Task Force to Investigate Certain Allegations Concerning the Holding of American Hostages by Iran in 1980 ("October Surprise Task Force") on January 3, 1993, determined that there was "wholly insufficient evidence" indicating any communications conducted by or on behalf of Reagan’s campaign with Iranian officials or hostage holders, and found no credible proof supporting efforts to delay the hostages’ liberation.

Iran–Contra affair

Silberman was a member of the D.C. Circuit panel in the case U.S. vs. Oliver L. North, 910 F.2d 843 (1990), which issued a per curiam decision reversing North’s conviction; North played a central role in the Iran–Contra scandal.

In his 1997 memoir, Firewall, Independent Counsel Lawrence Walsh expressed regret for not requesting Silberman’s recusal, citing Silberman’s personal animosity toward Judge Gerhard Gesell, who oversaw the trial at the district court level. Walsh suggested that Silberman’s hostility toward Gesell influenced his judicial behavior and could have justified disqualification.

Silberman later pointed out that David Brock, one of his critics, published a rebuttal to Walsh’s assertion. Brock conducted interviews with federal judges and demonstrated that the claim regarding Silberman’s alleged antagonism toward the district judge as grounds for recusal was baseless and without precedent.

Personal life and death

Silberman’s first wife, Rosalie "Ricky" Gaull Silberman, who co-founded the Independent Women's Forum, passed away on February 17, 2007. Together, they had three children: Robert S. Silberman, Kate Fischer, and Anne Otis. Among his eight grandchildren is screenwriter and film producer Katie Silberman. In 2008, Silberman married Patricia Winn Silberman.

He maintained a close friendship with Justice Antonin Scalia, having been instrumental in recruiting Scalia into the Ford administration. Additionally, Silberman played a significant role in encouraging Justice Clarence Thomas to accept a federal appellate judgeship on the United States Court of Appeals for the District of Columbia Circuit in 1989. Several of Silberman’s former law clerks have advanced to become federal judges themselves, including Justice Amy Coney Barrett.

Silberman passed away on October 2, 2022, just ten days before what would have been his 87th birthday.

See also

• List of Jewish American jurists
• List of Presidential Medal of Freedom recipients