San Francisco Chronicle - (Sunday)
Conservative judge set tone for crucial, far-reaching issues
Laurence H. Silberman, a conservative federal appeals court judge and advocate of judicial restraint whose opinions on guns rights, press freedom, the Affordable Care Act and other crucial issues resonated widely and sometimes presaged Supreme Court decisions, died Sunday at his home in Washington. He was 86.
His death was announced by of Chief Judge Sri Srinivasan of the U.S. Court of Appeals for the District of Columbia, where Silberman had sat since he was appointed by President Ronald Reagan in 1985 and where he continued to adjudicate long after he assumed senior status in 2000. His son, Robert, said the cause was an infection.
Silberman was unanimously confirmed by the Senate for six federal posts; was awarded the Presidential Medal of Freedom, the nation’s highest civilian honor, by President George W. Bush in 2008; and three times was shortlisted by Republican presidents for the Supreme Court.
He never got there, but his opinions on the D.C. appeals court, considered one of the most powerful benches in the country, could nevertheless be far-reaching.
Last year, an editorial in The Wall Street Journal described him as “one of the all-time giants of the federal bench” and perhaps “the most influential judge never to have sat on the Supreme Court.”
Silberman defined judicial restraint not as acquiescence but as leaving it to Congress and other representative bodies to legislate and letting the federal courts decide whether those laws pass muster with the Constitution.
In 1988, for example, he wrote in an opinion that the Watergate-era law passed by Congress that allowed for the appointment of special prosecutors was unconstitutional because it interfered with the president’s powers. The Supreme
Court disagreed, but the law eventually lapsed anyway.
In 2002, he wrote an opinion upholding a key provision of the post-9/11 Patriot Act that enabled law enforcement and intelligence officers to share information more easily.
In 2007, he ruled that the District of Columbia’s strict gun registration requirements and ban on carrying firearms violated the Second Amendment. In a decision that cheered gunrights advocates, the Supreme Court momentously agreed with him, holding that bearing arms was an individual right.
And in 2011 he upheld the constitutionality of the Obama administration’s Affordable Care Act, which at the time required people to be insured. He wrote that individuals’ decisions to remain uninsured, in the aggregate, have a substantial effect on interstate commerce and were therefore fair game for federal regulation.
The Supreme Court went on to uphold the act on other grounds (and Congress later removed the insurance requirement), but Silberman was applauded in some circles for his consistency in exercising judicial restraint, even in assessing the constitutionality of an emblematic Democratic initiative.
He was not unwilling to challenge judicial precedents, however.
In 2021, he delivered a scathing dissent in a libel case, urging the Supreme Court to overturn its 1964 ruling in New York Times v. Sullivan. That precedent said that to sustain a claim of libel against a public figure, a plaintiff had to prove that a published statement was known to have been false or was published with reckless disregard for whether it was true.
Arguing for a ruling that would make it easier for public figures to win libel suits, Silberman said that the Times and the Washington Post had become “virtually Democratic Party broadsheets,” that “the news section of the Wall Street Journal leans in the same direction,” that nearly all TV network and
cable outlets are “a Democratic Party trumpet,” and that big tech companies censor conservatives.
“Democratic Party ideological control” of the media, he warned, could portend an “authoritarian or dictatorial regime.” His opinion on lowering the bar for libel suits, if not his same reasoning, was later echoed by the Supreme Court Justices Neil Gorsuch and Clarence Thomas.
Though a conservative paragon, Silberman defied pigeonholing.
As solicitor in the Nixon administration’s Labor Department, he developed timetables for affirmative action, including numerical quotas that he later said he had initially hoped to avoid.
As undersecretary of labor, he threatened to quit unless President Richard Nixon overruled a White House aide who sought to prevent the nomination of a Black labor expert as the Labor Department’s director for the New York region.
In 2005, Silberman was cochair, with former Sen. Charles Robb, D-Va., of a presidential commission that found serious intelligence failures in the George W. Bush administration’s march to war in Iraq two years earlier. But the panel
largely discounted claims that reports of weapons of mass destruction had been deliberately exaggerated to justify the U.S. invasion.
A believer in government rectitude, Silberman wrote that “the single worst experience of my long governmental service” occurred in the late 1970s, when, as acting attorney general under President Gerald Ford, he was asked by the House Judiciary Committee to review “secret and confidential files” hoarded by former FBI director J. Edgar Hoover.
“Hoover had indeed tasked his agents with reporting privately to him any bits of dirt on figures such as Martin Luther King, or their families,” Silberman wrote in an opinion essay in the Wall Street Journal. “Hoover sometimes used that information for subtle blackmail to ensure his and the bureau’s power.
“I intend to take to my grave nasty bits of information on various political figures — some still active,” he continued. “As bad as the dirt collection business was, perhaps even worse was the evidence that he had allowed — even offered — the bureau to be used by presidents for nakedly political purposes. I have always thought that the most heinous act in which a democratic government can engage is to use its law enforcement machinery for political ends.”
Laurence Hirsch Silberman was born Oct. 12, 1935, in York, Pa., to William Silberman and Anna (Hirsch) Silberman and raised in northern New Jersey. His parents divorced when he was 9; he was raised by his mother, the daughter of a steel recycling magnate.
“I had an uncle who was a lawyer, and it was he who, I think, probably gave me the idea of being a lawyer,” he recalled in 2017 in an interview with New York University School of Law’s Institute of Judicial Administration. “I never ever remember anything that I didn’t want to be a lawyer. So at least at the age of 5 or 6, when my classmates would say they wanted to be firemen or pilots or so forth, I always wanted to be a lawyer.”
He attended Croydon Hall Academy in Atlantic Highlands, N.J., where, as a Jew, he said, he was the only non-Catholic. At Dartmouth, where he earned a bachelor’s degree in history in 1957, he was tossed out for a semester for spending a night at a dorm at Skidmore College, then an all-women’s school. “Of course today my defense should have been, I was trying to integrate the school,” he said.
After serving in the Army, he earned a law degree from Harvard in 1961.
At the Labor Department, where he was undersecretary from 1970 to 1973, he helped draft the Occupational Safety and Health Act and the Employee Retirement Income Security Act.
He was deputy attorney general from 1974 to 1975 and ambassador to Yugoslavia from 1975 to 1977.
Silberman’s first wife, Rosalie Gaull Silberman, a founder of the Independent Women’s Forum, a conservative economic policy group, died in 2007. In addition to his son, Robert, he is survived by his wife, Patricia (Winn) Silberman; two daughters, Kate Fischer and Anne Otis; eight grandchildren; and one great-granddaughter.
Silberman said in 2017 that he had completed a draft of his memoirs but that they would not be for public consumption.
“If you write anything for publication, you’ve got to be accurate,” he said. “If you write for your grandchildren, you just have to be honest.”
“That’s the only people I care about,” he said.