Notice & Comment

Laurence Silberman: The Public Service that Helped to Form a Judge

The news of Judge Laurence Silberman’s passing on October 2 spurred a wave of remembrances from colleaguesadmirersformer protegesSupreme Court justices, and many more. Some of my AEI colleagues contributed writings of their own: Robert DoarYuval Levin, and John Yoo

His contributions to the law—particularly in respecting and reinforcing the Constitution’s separation of powers—were immense, as many of his friends and admirers recalled in their writings. “Silberman will go down in history as one of the most influential American judges never to serve on the Supreme Court,” wrote his former clerk John Yoo and “the work of the Roberts Court, especially its blockbuster term just ended,” reflects “Silberman’s profound intellectual influence at work.” 

Reflecting on his life and work, I’ve found myself struck most of all by Silberman’s pre-judicial career—and by his own appreciation of how it formed him as a judge.

“Silberman’s judicial career is only a small part of the story,” wrote Paul Clement, another Silberman clerk and the greatest Supreme Court litigator of our time, in the Wall Street Journal. “Before his 40th birthday, Silberman had been appointed as undersecretary of labor (1970–73), deputy attorney general (1974–75) and ambassador to Yugoslavia (1975–76). Even after his confirmation to the D.C. Circuit in 1985, Article III was insufficient to contain his talents. President George W. Bush tapped him as a co-chairman of the Robb-Silberman Commission on intelligence failure in Iraq. In 2008 Mr. Bush awarded Silberman the Presidential Medal of Freedom.”

In short, when Silberman was finally appointed to the D.C. Circuit by President Reagan at age fifty, he had accumulated immense experience in extraordinary times. He served in the crucible of Watergate, which occasioned my favorite moment in his oral history for the D.C. Circuit Historical Society, recalling the collapse of Nixon’s presidency in August 1974:

Silberman: [T]he most vivid memory I have about that week was … I was informed that Jim Schlesinger, who had been the Secretary of Defense, had instructed the military not to follow any orders from the President concerning deployment of military forces without his approval, and I remember that.

Interviewer: Yes.

Silberman: That impressed me as a major constitutional crisis.

Interviewer: I would say so.

Silberman: My response was to resume smoking.

It was a constitutional crash course, at a moment when the Constitution itself seemed at risk of crashing.

Many years later, he emphasized the value of his service in the executive branch to prepare him for eventually serving as a judge. “I do think there is an advantage in being a Federal judge, particularly a Federal appellate judge, and perhaps particularly the D.C. Circuit to have a background in government and in politics,” he told the D.C. Circuit historian.

In fact, Silberman could have become a federal judge much earlier in his career. President Nixon had offered him a seat on the west coast’s Ninth Circuit in 1972, at the end of Silberman’s service in the Department of Labor. As he recalled for the D.C. Circuit oral history: “Nixon’s view, according to Ehrlichman, was that I was a good lawyer, but I was too rigid for politics. So he offered me a seat on the Ninth Circuit, which I quickly accepted although I was only 37, and then I went to the White House and Nixon congratulated me at a dinner for departing appointees, he congratulated me on going to the Ninth Circuit.”

Yet the seat ultimately went to someone else; Silberman instead was offered a seat as a district judge, which he declined. He wound up becoming the Deputy Attorney General, and was eventually offered another spot on the Ninth Circuit. And this time he declined the opportunity: “Obviously I could have it if I wanted it,” he told the D.C. Circuit historian. “But I had decided that it was a blessing that the other one had gone by because I really was too young.” (The seat, he explained elsewhere, went to future Justice Anthony Kennedy.)

Silberman wanted to build a nest egg for his young family, but he also wanted to build more experience. He explained this to Paul Clement in another oral history project, for NYU:

Silberman: When I was deputy attorney general, I had the view that nobody should go on the court of appeals, including me, below forty-five. I think somewhere around fifty is the best age.

Clement: And why is that?

Silberman: Well, several reasons. First of all, you have enough experience and prestige that you carry both with you to the court of appeals. Secondly, you’re not going to get bored and I’m afraid if you go off—there are many people who will go on the court in their late thirties or even earlier and they get antsy.

A decade later, Silberman was ready. He wasn’t particularly focused on becoming a judge—he was more interested in possibly leading the CIA—but two prominent friends caused him to consider the bench. As he explained for the D.C. Circuit oral history:

This time around the ones who were influential in persuading me to be a judge were Nino Scalia, particularly Nino, Bill Rehnquist, because he had first suggested it … Bill Rehnquist and I had lunch when I moved back from San Francisco and he was the first one to say, you know, why don’t you think about being a judge.

… It was the furthest thing from my mind. And there was a good deal of speculation in ’84 that, in fact some press speculation, that Bill Casey would leave the CIA and I would be asked to come in then. And I, that was one job that I was thinking that I would still be interested in. But when Bill Rehnquist first mentioned being a judge I began to think about it. And I have always been a little ambivalent, part of me has, as is obvious was very much of an activist, but part of me had been attracted to the scholarly life, or this time at AEI, my writings and so forth.

… And ever since my law school days being an appellate judge, a federal appellate judge, has always seemed very attractive to me. So Scalia, perhaps my closest friend, had suggested that I ought to think seriously about it; he thought that I would love it. … Nino turned out to be absolutely right. I was, the more I thought about it the more I became convinced that, at the age of 50, I was prepared toward a scholarly life. I loved government.

He knew that “you can’t be a permanent cabinet officer,” but “[y]ou can be a permanent judge.” And “the idea of withdrawing from the political world seemed more and more attractive to me. And therefore when I did become a judge I liked it from the start–I loved it.”

As John Yoo’s remembrance indicates, Judge Silberman’s experience in the executive branch surely informed his instinct to favor some judicial deference to agencies’ policy judgments, and his broader instincts for a certain kind of judicial restraint. (The same was true of Justice Scalia.)

Even more broadly, I think Judge Silberman’s experience in administration and politics informed his understanding of the constitutional judiciary. Precisely because he knew politics and political governance firsthand, he also knew that the judiciary must serve a very different institutional role.

Early in his legal career, for example, he witnessed a federal judge participating in the Nixon White House’s partisan policy deliberations. He was shocked by such “palpably inappropriate” political activity by a judge—and he did not hesitate to voice his concerns. (The judge “never appeared again,” Silberman recalled to the D.C. Circuit historian.)

But it was more than simply keeping judges out of the White House’s political meetings. Silberman understood that the judicial office entails responsibilities—and thus requires virtues—that are fundamentally different from other government offices, in terms of intellectual honesty and candor: “Federal judges are the only senior government officials who have to set down in writing exactly why they do everything that counts,” he told The Atlantic’s Ben Wittes in 2005. “I think the single most important thing judges can do when they write opinions is be honest about their reasoning.” Sometimes he complained that the Supreme Court acted like “a noncourt court,” because it was unbound by the constraints of precedent  that limit lower courts.

*          *          *

The news of Judge Silberman’s passing was all the more jarring because my AEI colleagues and I had enjoyed spending time with him and Mrs. Silberman just weeks earlier. The last time I saw him was in AEI’s dining room, in early September, when he and Mrs. Silberman met another AEI friend for lunch. In August, they came to AEI’s summer conference at Jackson Hole, where Judge Silberman joined a panel discussion about the Supreme Court. It was a wonderful day, full of insights delivered with Silberman’s characteristic style—and with no shortage of affectionate pokes at his former clerk, John Yoo. And it was a happy opportunity to celebrate Judge Silberman’s own history at AEI.

When the Ford Administration ended in 1977, Silberman took up residence at AEI with a few of his fellow public servants: Antonin Scalia and Robert Bork. There he thought and wrote about constitutional government, especially in light of his recent service as U.S. Ambassador to Yugoslavia. And he spoke on AEI panels—including this one on “the imperial judiciary” with Antonin Scalia; and another on the President, Congress, and the Separation of Powers with James Q. Wilson, Lloyd Cutler, and Laurence Tribe.

He described his AEI days in yet another oral history:

Someone once told me that during the years in government you draw down all the intellectual capital you’ve built up, and you need some time to refurbish it. I wished to do that before I went into law practice or whatever I was going to do to make sure my family lived in adequate comfort and I could send my children to college and so forth. So I spent a year at AEI, in which I wrote various articles and lectured in various universities and colleges, and two of those articles dealt with foreign policy. One was an article in Foreign Affairs and one was an article in Foreign Policy Magazine, the latter focused on Yugoslavia, particularly … I also wrote a piece for the Wilson Quarterly, on Tito. But I also wrote in the areas of law and economics and so forth and had a lot of fun.

He wasn’t the only one who had fun. Irving Kristol recalled those AEI days in Neoconservatism: The Autobiography of an Idea:

[T]he men I formed the closest ties with were three newly unemployed lawyers—Robert Bork, Antonin Scalia, and Laurence Silberman—who have remained close friends to this day. AEI had no lunchroom at that time and so we ‘brown-bagged it’ every day, munching on our hamburgers or sandwiches while talking about everything but law, for this would have excluded me from the conversation. Our main topics for discussion were religion (my permanent favorite) and economics, about which none of us knew as much as we would have liked. But it was clear to all of us that the Republican party would have to be more than the party of a balanced budget if it was going to be invigorated.

It’s a captivating scene; imagine being a fly on the wall as Kristol, Silberman, Bork and Scalia discussed the great issues of the day. (And at Jackson Hole Judge Silberman assured me that there was indeed plenty of law talk, too.)  

Judge Silberman contributed immensely to American law, and to the lives of his family, friends, colleagues, and proteges. Lawyers can learn much from his judicial opinions, but there was even more to learn from his truly singular life, his example of public service.

Adam White is a senior fellow at the American Enterprise Institute and co-director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State, which last year awarded Judge Silberman its inaugural Justice Clarence Thomas First Principles Award.

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