Laurence Silberman, titan of conservative jurisprudence, dies at 86

Laurence H. Silberman, one of the most influential conservative judges on the federal appeals court, whose views on Second Amendment rights, separation of powers and limits on freedom of the press resonated in rulings of the Supreme Court of the United States and in American jurisprudence, who died on October 2 at his home in Washington. He was 86 years old.

His son Robert Silberman confirmed his death and said the cause was an undiagnosed infection.

Mr Silberman was appointed to the United States Court of Appeals for the DC Circuit by President Ronald Reagan in 1985. He served full-time on that bench – widely considered the second most important judicial body of the country after the Supreme Court – until assuming higher status in 2000. He continued to hear cases until shortly before his death and was celebrated among conservatives as a constant, if sometimes provocative, exponent of judicial restraint, the idea that judges must limit the exercise of their power to the analysis of legal questions. who come just before them.

Mr. Silberman’s decades on the DC Court of Appeals capped a government career that dates back to the administration of Richard M. Nixon, one of the many Republican presidents he served. Under Nixon, Mr. Silberman was a labor lawyer, the top lawyer in the Department of Labor and an assistant attorney general. Under President Gerald Ford, Mr. Silberman served as U.S. Ambassador to what was then Yugoslavia from 1975 to 1976.

Three decades later, Mr. Silberman suspended his judicial duties when President George W. Bush named him and Chuck S. Robb, a Democrat who served as a U.S. senator and governor of Virginia, co-chairmen of a presidential commission that published a scathing report. about the intelligence failures that led to the US invasion of Iraq in 2003.

Bush then awarded Mr. Silberman the Presidential Medal of Freedom, the nation’s highest civilian honor, calling him a “stalwart guardian of the Constitution” whose “work to strengthen our national security institutions has made Americans safer “.

But Mr. Silberman was best known as a jurist and for the rigorous, sometimes bitterly worded opinions he offered to elucidate his view of the legal world.

“It has always seemed quite simple to me that in a democracy, federal judges appointed for life cannot afford, or should not afford, to make political judgments,” he once said in a oral history for the Circuit District Historical Society of Columbia. Rather, he said, they “should do their best to interpret the political judgments that Congress makes and transform into legislation as well as the political judgments that are embodied” in the Constitution.

This position “didn’t sit well with everyone — or anyone all the time,” Paul Clement, a former judge’s clerk turned U.S. Solicitor General, wrote in The Wall Street Journal. “But disappointing those who view court decisions through a political lens was part of the job.”

Mr. Silberman “wrote important opinions and spotted hidden jurisdictional flaws,” Clement observed, “as he struggled to model his view of judicial restraint.”

Mr. Silberman offered one of his most important opinions in Parker v. District of Columbiaauthor of the 2-1 ruling in 2007 that found a district gun control measure in violation of Second Amendment protections of the right to bear arms.

The case went like District of Columbia v. Heller to the Supreme Court, which voted 5-4 the following year to strike down the DC law. Justice Antonin Scalia’s majority opinion, one of the most important of his career, reflected Mr. Silberman’s view that Second Amendment protections apply not only to militia members, but also to individuals. .

Mr. Silberman wrote a majority opinion in 1988 that would have struck down the law that created independent counsel to investigate government officials, including the president, charged with certain federal crimes. The judge saw the law as a violation of the separation of powers.

The case is brought before the Supreme Court as Morrison v. Olson, in which the court voted to keep the Independent Counsel Act. It was, Mr. Silberman said, “my greatest disappointment as a judge.” Scalia wrote a noted dissent – of which Mr. Silberman’s earlier opinion had “formed the first draft”, according to Clement – and the law was allowed to expire in 1999.

Mr. Silberman has sometimes surprised court watchers, including when he voted to uphold the Affordable Care Act of 2010, one of President Barack Obama’s landmark policy achievements, in the face of Republican challenges. He disliked the law but argued that it was supported by the Constitution’s “trade clause” allowing Congress to regulate interstate commerce.

Mr. Silberman has often been put forward as a candidate for a seat on the Supreme Court, including when Justice William Brennan Jr. resigned in 1990. Around that time, Mr. Silberman ruled in favor of Oliver L. North, the assistant to the National Security Council who appealed his convictions in the Iran-Contra case. (The charges against him were eventually dropped.) According to The Washington Post, Silberman’s decision in the case was seen as possibly costing him the Supreme Court nomination, which ultimately went to David Souter.

One of Mr. Silberman’s most controversial opinions was a dissent in a 2021 libel case, in which he argued that the Supreme Court’s 1964 unanimous decision in New York Times vs. Sullivana fundamental case in media law that protects journalists from public figure defamation suits, should be reassessed.

“Two of the three most influential newspapers (at least historically), The New York Times and The Washington Post, are practically Democratic Party broadsheets. And the news section of the Wall Street Journal is leaning in the same direction,” he wrote. “Almost all television – network and cable – is a Democratic Party trumpet.”

“I recognize how difficult it will be to persuade the Supreme Court to overturn such a ‘historic’ decision,” he conceded. “After all, it would anger the press and the media. … But new considerations have emerged over the past 50 years that make New York Times decision (which I believe I faithfully applied in my dissent) a threat to American democracy. It has to go.

Mr. Silberman’s opinion caused an outcry among journalists and press freedom advocates. He was strongly criticized by J. Michael Luttig, a former federal appeals court judge appointed by President George HW Bush, as “dangerous” and “frightening.” For his admirers, the decision represented Mr. Silberman’s ability to shape legal conversations in the country even when he was not in the majority.

“Judge Silberman had a powerful legal mind, tremendous energy and a passion for freedom,” Chief Justice John G. Roberts Jr. said in a statement after Mr. Silberman’s death. “Our country has benefited greatly from this combination. And he never got bored when he was in the room.

Laurence Hirsch Silberman was born in York, Pennsylvania on October 12, 1935. His paternal grandfather made his fortune in the steel industry, and he described his father as “spoiled and pretty much a scoundrel who lost a lot of money in various businesses funded by my grandfather.

Mr Silberman was a baby when his 5-year-old brother was fatally hit by a car. His parents soon moved to Philadelphia and then to New Jersey, where Mr. Silberman grew up. His parents divorced when he was 9, and his mother later worked in real estate and remarried. He said his mother, grandfather and an uncle who was a lawyer all encouraged him to enter the legal field.

He earned a history degree from Dartmouth College in 1957 and, after military service, from Harvard Law School in 1961. He practiced law in Hawaii before joining the National Labor Relations Board as an attorney in 1967 At the Department of Labor, he helped draft the Occupational Safety and Health Act of 1970 and the Employees Retirement Income Security Act of 1974.

At the Labor Department, Mr. Silberman once threatened to resign when the Nixon administration tried to block the appointment of an African-American scholar. He was deeply affected by an episode in 1975 when, as a senior Justice Department official, he was tasked with examining the secret files of J. Edgar Hoover, the powerful FBI director who had died three years earlier.

“It was the worst experience of my long government service,” Mr. Silberman wrote years later in the Journal. “I intend to take to my grave unpleasant information about various political figures, some of whom are still active.”

“As bad as the dirt-collecting business was, perhaps even worse was the evidence that he allowed — even offered — the office to be used by presidents for purely political purposes,” Silberman continued. . “I have always thought that the most heinous act a democratic government can commit is to use its apparatus of law enforcement for political purposes.”

Between his terms in government, he worked in private practice, as a senior fellow at the American Enterprise Institute in Washington, and as an executive at Crocker National Bank in San Francisco.

Mr. Silberman was married for 49 years to Rosalie Gaull “Ricky” Silberman, who co-founded the Independent Women’s Forum, an advocacy organization representing conservative women. She was a strong supporter of Supreme Court nominee Clarence Thomas during his confirmation process in 1991, who was bitterly challenged over allegations that he had sexually harassed Anita Hill, a former colleague on the Equal Opportunities Commission. employment opportunities, where Mr. Silberman’s wife had also worked. Thomas was eventually confirmed at the high court.

Ricky Gaull Silberman died in 2007.

In 2008, Mr. Silberman married Patricia Winn. Besides his wife, of Washington, survivors include three children from his first marriage, Robert Silberman of Potomac, Md., Katherine Fischer of Washington, and Annie Otis of Hartford, Conn.; a sister; eight grandchildren; and a great-granddaughter.

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