In Memoriam: Judge Laurence H. Silberman (1935-2022)
Colleagues and clerks—including Justice Amy Coney Barrett, in an exclusive interview—shared remembrances with me.
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Judge Laurence Silberman, a leading light of the federal judiciary for almost 40 years, passed away on Sunday at 86, just 10 days shy of his 87th birthday. His son Robert Silberman confirmed the judge’s death to the Wall Street Journal, the first outlet to report the news, and said it was caused by an undiagnosed infection, according to the Washington Post.
Appointed to the U.S. Court of Appeals for the D.C. Circuit in October 1985 by President Ronald Reagan, Judge Silberman served on that court, second only to the U.S. Supreme Court in power and prestige, for 37 years. Although he took senior status in 2000, Judge Silberman continued to hear cases to this day—and was scheduled to sit on panels this month and next, in fact. Chief Judge Sri Srinivasan praised his late colleague as “a public servant of the highest order,” noting that “he earned Senate confirmation for five different positions, spanning an extraordinarily wide range of duties; he received the Nation’s highest civilian honor, the Presidential Medal of Freedom; and he served on our Court for well over three decades.”
After graduating from Dartmouth College, serving in the Army, and earning his law degree from Harvard Law School in 1961, Silberman embarked upon a long and varied career. It included stints in private practice—in Honolulu at his own firm, then in D.C. at two elite law firms, Steptoe & Johnson and Morrison & Foerster—and even three years in banking. But government service is where he made his mark.
As noted by one of his ex-clerks, former U.S. Solicitor General Paul Clement, in a Wall Street Journal op-ed, Judge Silberman served as undersecretary of labor (1970-73), deputy attorney general (1974-75), and ambassador to Yugoslavia (1975-76)—all before turning 40. At the Labor Department, Silberman helped draft two important laws, the Occupational Safety and Health Act and the Employee Retirement Income Security Act, which set minimum standards for workplace safety and retirement and healthcare plans, respectively.
President Reagan appointed Judge Silberman to the D.C. Circuit in 1985, and over the next four decades, he made a name for himself as a “titan of conservative jurisprudence,” per the Washington Post, and “one of the country’s most influential jurists,” per the Wall Street Journal. As noted by Law360, he was “one of the most influential jurists to never sit on the U.S. Supreme Court”—indeed, “more consequential than most Supreme Court Justices,” according to the WSJ editorial board.
Although he never sat on the Supreme Court, Judge Silberman’s influence at One First Street cannot be denied. I’m hard-pressed to think of other lower-court judges who could generate personal tributes from all nine sitting SCOTUS justices, plus retired Justices Anthony Kennedy, a classmate from their Harvard Law days, and Stephen Breyer (collected below, with my thanks to the Court’s Public Information Office).
In his WSJ piece, Paul Clement cited two examples of Judge Silberman’s contributions to American jurisprudence. First, his majority opinion in In re Sealed Case (1988), concluding that the independent counsel statute was unconstitutional, “formed the first draft of [Justice Antonin] Scalia’s most famous dissent, in Morrison v. Olson—and was vindicated when Congress, having seen both parties’ oxen gored by the law, let the law expire in 1999.”
Second—and even more influential, since it ultimately became the law of the land—was Judge Silberman’s opinion in Parker v. District of Columbia (2007). Judge Silberman’s conclusion that the Second Amendment protects an individual right to bear arms wound up enshrined in what many view as Justice Scalia’s most important majority opinion, District of Columbia v. Heller.
As a leading “feeder judge” for many years, Judge Silberman also influenced the Supreme Court by sending dozens of his clerks into prestigious clerkships with the justices. His former clerks—who are, in Clement’s words, “as important to his professional legacy as his judicial opinions and other speeches and writings”—have enjoyed remarkable careers in government, academia, and private practice. Interestingly enough, they include a striking number of general counsel and chief legal officers of major corporations, including Viet Dinh of Fox Corporation, Brett Gerry of Boeing, Brent McIntosh of Citigroup, and Jennifer Newstead of Meta aka Facebook—who succeeded a fellow Silberman clerk, Colin Stretch, in the role. (I have collected tributes to Judge Silberman from former clerks at the end of this post, and I will update the web version of this post with any additional ones as I receive them.)
One of the many clerks that Justice Silberman sent into a SCOTUS clerkship—Amy Coney Barrett, who went on to clerk for Justice Scalia—now sits on the high court. Last night, I spoke with Justice Barrett by phone about her former boss (as her eleven-year-old and my five-year-old made noise in the background).
“The Wall Street Journal and others have pointed out the judge’s many contributions to the law and his long record of public service,” Justice Barrett told me. “But he prioritized relationships, and he was very devoted to his clerks.”
“I try to be hyper-efficient—I was like this even before I had children, even when I was clerking for Judge Silberman—and I would often just eat lunch at my desk. But one of the things he taught me was to get away from the desk.”
During her clerkship with Judge Silberman, he would lunch with his clerks multiple times a week—even more often than Justice Scalia, who lunched with his clerks regularly. Given Judge Silberman’s important responsibilities and busy schedule as a judge, the fact that he spent so much time with his clerks made an impression on her, and she remembers their lunches fondly to this day.
“He loved taking us to the Labor Department cafeteria,” Justice Barrett recalled. “The food was really gross, but he had this nostalgic attachment to it from his time there.”
Another frequent venue: the dearly departed A.V. Ristorante, the Italian restaurant that was also a favorite of Justice Scalia.
“A.V. had one of those bowls of colored mints that were just sitting there, unwrapped—and he would just stick his hand in there to grab some on the way out. Who knows how many hands had been in that bowl?”
During these lunches, Judge Silberman would regale the clerks with war stories, often from his prior jobs. Because he had such a wide variety of professional experiences, having served as a top Justice Department official, a top Labor Department official, and an ambassador, he had many such stories. But the lunches weren’t just Judge Silberman holding court; he was also deeply interested in what his clerks had to say, particularly about current events.
“I attended a dinner at his house within the last six months, and he had preplanned a conversation but hadn’t told us in advance: he started going around the table, asking everyone for their view on the U.S.’s next move in Ukraine,” Justice Barrett said. “It took me back to our lunches during the clerkship, when we had to read the newspaper, the physical newspaper back then, and anticipate what he might want to discuss—which wasn’t easy, because he was so well-read and his interests were so wide-ranging.”
Judge Silberman enjoyed hour-and-a-half lunches. But he also enjoyed—and took very seriously—his judicial work, which he approached differently compared to many other judges.
For starters, he did not want bench memos, the often lengthy memoranda that law clerks prepare to brief their judges about cases. As Paul Clement wrote in the WSJ, working with Judge Silberman was “an entirely oral clerkship”, with “verbal sparring over the right answers” expected in lieu of memos.
That wasn’t what young Amy Coney was expecting when she showed up in chambers.
“The first time I was preparing the judge for oral argument, I got there so early, hours before he arrived, and spread out all these cases and briefs,” she told me. “When he arrived and saw it all, he was practically laughing at me—’I don’t need you to walk me through all this!’”
Judge Silberman did let clerks draft opinions but edited extensively, to the point of basically rewriting—an editing process that was itself a form of education and mentoring. And for many of his clerks, the mentorship and advice continued for years after the clerkship’s end. As recently as just a few months ago, Clement reached out to Judge Silberman—interrupting his vacation in Cornwall, England—to get his counsel on leaving Kirkland & Ellis to start a boutique.
Then-Professor Barrett spoke to Judge Silberman before deciding to leave Notre Dame Law for the federal bench. He supported her throughout the confirmation processes for both the Seventh Circuit and the Supreme Court, sitting right behind her, next to her parents, at her Seventh Circuit hearings. (Her SCOTUS hearings were closed to the public because of the Covid-19 pandemic.)
“I didn’t work in government before I went on the bench, and I had no experience working on a campaign or in politics,” Justice Barrett explained. “The hearing was my first time dealing with the rough and tumble of politics, in a very personal way.”
“After the hearing, I felt as if I had just been hit by a Mack truck. But he was gleeful in the hallway—he was so giddy, he wanted to go through everything.”
In addition to advising her throughout her confirmation processes, Judge Silberman served as a role model for Justice Barrett on the bench—particularly in terms of his emphasis on judicial restraint. He didn’t like the Affordable Care Act as a policy matter, but he wrote the D.C. Circuit opinion upholding it against constitutional challenge. He supported law and order, but he didn’t hesitate to rule for criminal defendants when the government cut corners.
“He would go where the law led—even if it led him to places he didn’t always like,” Justice Barrett said. “And that’s what a judge has to do.”
“I am not a fan of common-good constitutionalism,” Justice Barrett added, presumably because it gives judges too much leeway to smuggle their policy preferences into the law. “Judge Silberman was just horrified by it.”
And when something horrified Judge Silberman—like, say, the excessive use of acronyms in briefs—he spoke up. Justice Elena Kagan recalled hearing from him often when she was dean of his alma mater “because he was a devoted, if also opinionated, alumnus of Harvard Law School.”
In recent years, Judge Silberman courted controversy with public comments opposing the renaming of military installations named after Confederate leaders, referring to it as “the desecration of Confederate graves”; urging the Supreme Court to revisit New York Times v. Sullivan, the landmark First Amendment precedent, based in part on what he viewed as liberal bias in the media; suggesting that federal judges refrain from hiring Yale law students who disrupted a free-speech event back in March; and complaining about fellow judges getting involved in the inherently political process of picking other judges.
“He had opinions, and he shared them,” Justice Barrett said of her former boss. “In sharing his opinions, he assumed they’d be received in good faith—but in our modern discourse, that assumption isn’t always accurate.”
Indeed, Judge Silberman’s candor—along with his sense of humor, which Justice Stephen Breyer diplomatically described in his tribute as “slightly biting”—was one of his signature qualities. As Justice Barrett put it, “He didn’t suffer fools, he didn’t sugarcoat things, and he was very funny.”
Judge Silberman was especially fond of his teasing his clerks. For Justice Barrett, one of the few he hired from outside the top-14 law schools, he often joked about her having graduated from Notre Dame rather than Harvard or Yale Law.
“When I started clerking for him, he had never hired anyone not from the Ivies and similar schools. He had never ‘dipped so low as Notre Dame,’ as he would have put it. But I had some professors he knew and trusted who recommended me, and he hired me without even an interview.”
“When I showed up to work, 25 years old and right out of law school, he would say things like, ‘I don’t know if this is going to work out, Amy—you’re from Notre Dame….’ Or if I came into chambers on a Saturday wearing a Notre Dame t-shirt, he’d joke, ‘You’re wearing a Notre Dame t-shirt—you’ll make me look bad!’”
“He made these comments with an assumption of goodwill on my part, and I knew he was just kidding. I knew he wouldn’t have hired me if he wasn’t confident in my abilities. And I knew that if he wasn’t happy with my work, he wouldn’t be teasing me—he would have said something. Because that was how he was: if he thought it, he said it.”
As our conversation drew to a close, I asked Justice Barrett what she felt would be the most enduring aspect of Judge Silberman’s legacy. She returned to the topic she opened with: relationships.
“My assessment is skewed based on where I have felt his impact, but if you ask his clerks—and not just his clerks, but so many others in law, government, business, or academia—you’d be amazed at how much time he spent on mentoring and advising. His legacy lies in the influence he has had, and will have, on succeeding generations.”
Well said. Judge Laurence Hirsch Silberman, rest in peace.
SUPREME COURT JUSTICES ON JUDGE LAURENCE SILBERMAN
Chief Justice John G. Roberts, Jr.
Judge Silberman had a powerful legal mind, enormous energy, and a passion for freedom. Our country benefited greatly from that combination. And there was never a dull moment when he was in the room.
Justice Clarence Thomas
Virginia and I are deeply saddened by the untimely death of our very dear friend, Larry Silberman. He was an outstanding jurist, statesman, and counsel to many. But, most important, he was a truly great man. We are truly fortunate to have known him these many years and to have been among his friends. We will miss him greatly, but we will cherish our many memories of him. Our hearts go out to Tricia and their family.
Justice Samuel A. Alito, Jr.
Judge Silberman was one of the greatest federal judges of his generation, and his work will live on. He was also a man of courage, who devoted his life to defending our Constitution and the rule of law.
Justice Sonia Sotomayor
Judge Laurence Silberman was a lion of the District of Columbia’s Circuit Court of Appeals. He will be missed by all.
Justice Elena Kagan
I first came to know Larry Silberman because he was a devoted, if also opinionated, alumnus of Harvard Law School. As dean there, I admired his intellect, enjoyed his wit, and benefited often from his counsel. Since then, I’ve been grateful for his continuing friendship. Larry was a superb judge, whose opinions reflected a penetrating legal mind and an unwavering commitment to the principle of judicial restraint. My deepest condolences to Tricia and all his family. May his memory be a blessing.
Justice Neil M. Gorsuch
Larry was a steadfast public servant and a brilliant judge. He was also my friend. I will miss our afternoon lunches and working together on Beer v. United States [ed. note: not a euphemism for federal employees drinking during the workday], enjoying a wit and wisdom that had been honed over a long and fascinating career. Louise and I join so many others in offering our deepest condolences to his family.
Justice Brett M. Kavanaugh
Ashley and I are heartbroken by the passing of our dear friend Judge Larry Silberman. We extend our prayers and deepest condolences to Tricia and the entire Silberman family, and to all of the extraordinary former law clerks to Judge Silberman. In 2006, after Judge Silberman took senior status, I was honored to be appointed to the D. C. Circuit, and especially honored that I would hold the “Silberman seat” on that court. As a senior judge, Judge Silberman continued his judicial service with an active docket, and I was blessed to work with him for 12 eventful years. Judge Silberman had an unsurpassed understanding of how the three branches of the federal government work in the real world, not just in theory, and of the properly limited role of judges within our constitutional system. No judge was better able to see both the big picture and the smallest details of a case, and how both were essential when deciding the dispute in question.
Larry was a great friend and colleague. He was a regular at the judges’ lunch table at the D.C. courthouse, and he entertained and educated me, and all of us, with his stories from prior government service and earlier cases. I cannot fully put into words how much I benefitted from his support, humor, wisdom, and sage advice on countless occasions, in good times and in bad. Just two months ago, I had a wonderful dinner with him, and he was his usual self—insightful, spicy, and full of great stories and wise counsel. Our last phone conversation occurred a few days after that dinner, and I remember it vividly—both the concrete advice and the humor. I will miss Larry Silberman dearly and daily. I will always try to live up to his example of service to the American people and the Constitution. May God bless Larry Silberman and the entire Silberman family.
Justice Amy Coney Barrett
Judge Silberman’s passing is a loss not only to the country he served, but also to the law clerks who loved him. Since I was 25 years old, he has been a wise mentor, dear friend, and unfailing support. I will miss him greatly.
Justice Ketanji Brown Jackson
In the time that we overlapped on the Court of Appeals, I often looked to Judge Silberman for guidance on that court’s practices and procedures, and he was unfailingly gracious, thoughtful, and welcoming. There is no question that he has had an enormous influence on the D.C. Circuit’s work, and the Judiciary as a whole. He will be sorely missed.
Justice Anthony M. Kennedy (Retired)
Larry Silberman was incisive, scholarly, and dynamic on the bench, just as he had been throughout his distinguished public career before that and at Harvard Law School, where he was my classmate and good friend. He considered intellectual honesty and forthrightness, along with friendly laughter, to be part of his duty as a public servant. This is why he made valuable contributions to so many dimensions of our government, both here and abroad. He taught civic commitment to all of us during his career in serving the public, the nation, and the cause of freedom.
Justice Stephen G. Breyer (Retired)
Larry Silberman was a good judge and a good friend. He was fun—a lively mind, a slightly biting sense of humor—a pleasure, always, to be with. And, he devoted his life to helping this country—bar and bench—which he loved. He contributed the fruits of his excellent mind, his common sense, his practical abilities to making our justice system work better. We all shall miss him.
FORMER LAW CLERKS ON JUDGE LAURENCE SILBERMAN
I am at a total loss. I don’t even know how to feel without the Judge here guiding me.
Judge Silberman epitomized the single most important quality in a judge: the integrity to decide cases based on principle, irrespective of public opinion—or his own. Judge Silberman knew the limited role of a federal judge, and was always careful to adhere to those limits. Foremost of those limits was his commitment that the proper role of a judge did not include making determinations of policy, and he applied that principle even when it meant reaching results that he disfavored. He was the ideal judge.
One of the aspects I hope folks will know and appreciate is that while there were no illusions as to which side of the aisle had nominated the Judge, his opinions and viewpoints were solely his own, often heterodox, and always grounded in law, not politics. His relationships and mentorships spanned the entire spectrum. In addition, as with so many of the Quiet Generation, his sometimes tough outer shell housed a very soft interior.
Judge Silberman was not only an excellent professional mentor but he also showed extraordinary personal warmth and care for those of us lucky enough to be in his extended “family.”
In text and email exchanges among Judge Silberman’s law clerks, the most frequently expressed sentiment was, “He was like a second father to me.” He was so much more than a boss, an employer, or a judge to so many of us. His loss leaves a real hole in the lives of his law clerks. He was as fine and honorable a human being as I ever knew. I feel so lucky to have learned from him during my first year after law school, and to have had him in my life as a role model, counselor, mentor, and friend ever since.
I was a clerk very late in Judge Silberman's career. What immediately struck me within the first few days of working for him was how open and relaxed he was with us. Here was a man who had seen and done it all, for who, being one of the nation’s most influential circuit judges, was only perhaps third on his list of life accomplishments. Yet he took the time to really hear what his clerks, only a few years out of law school, had to say with the same respect and attention as he would give to any of the important dignitaries he would come across in his varied career. To be sure, if I made a silly comment, Judge would have teased me mercilessly for it, but it was always with a generous smile and a wink, never in a mean spirit.
That was the way that the Judge ran chambers and how he wrote his opinions. He expected to be told the truth, and to tell the truth as he saw it. It didn’t matter if the truth was inconvenient to some purpose, or if sometimes the truth wasn’t pleasant. There’s countless examples of him telling the truth when it was inconvenient for his career or ambitions. But when I think on it, his insistence on telling the truth was a form of respect for the audience. He trusted that the listener had the same capacity as the Judge to understand and grapple with the issue. If the listener came to a different conclusion, the Judge was glad to hear it, because he wanted to get at the right answer.
I can only hope that I am able to keep this lesson with me throughout my life. It’s certainly almost unbelievable that the Judge could keep that character throughout such a long career and in Washington of all places. But ultimately, while it might be presumptuous to call such a giant a friend of mine, I feel like the only way to describe the effect of his passing on me is that I feel like I have lost a friend and that I shall miss that friend. It will always be a testament in my mind to his greatness that he treated me in a way that makes me feel that way.
On his total dedication to the work of a judge, even late in life:
During the 2013-14 term, OPM [U.S. Office of Personnel Management] declared a lot of snow days. On those days, however, I would inevitably get a call from the judge around 7:30 in the morning. He’d say, “Jeff, what’s this about the courts being closed? You’re coming in, right?” On one of those days, however, the judge was worked up about something different. Apparently a memo had been circulated to the entire court, and the judge thought that some of his colleagues were about to make a significant legal error. He called me early in the morning to ask if I’d seen the memo. I said that, as a lowly clerk, I couldn’t see those memos unless I was in the office. He said I needed to see it, and that we had to start working on a reply immediately. So I trudged through the silent, snowy streets of D.C., into the courthouse. After spending the morning working on a reply, and proofing it carefully, we circulated it around noon. After about 15 minutes, the judge started getting antsy. He said he expected at least a phone call from one of his colleagues by now. I said that perhaps everyone was simply taking the day off because the court was closed. The judge was nonplussed: “What do you mean the court is closed?” The snow was still falling, the lights were off everywhere, the building was silent, and only a single U.S. Marshall was on duty. At the age of 79, the prospect of a D.C. Circuit panel making a doctrinal error was so upsetting to him that he didn’t even notice that the court was closed until he had finished explaining his colleagues’ errors.
On his keen interest in his clerks’ life choices:
After explaining to the judge how to sell a roof rack on Craigslist, his then-secretary, Lisa Einsel, said, “Why don’t you give it to Jeff?” The judge scoffed and shook his head. “He doesn’t have a car. He doesn’t have a girlfriend. He just has a bar where he watches soccer.” The judge was always encouraging his clerks—usually with humor—to grow up and settle down.
On the fun parts of the job:
I was pretty fortunate during my term that we had mostly very interesting cases, but there was one case that, at least at the outset, seemed like a real dog. The FERC [Federal Energy Regulatory Commission] cases usually have that reputation, but this one involved a different agency. We thought the answer was simple, but as it turned out, one of the judge’s colleagues disagreed, and was considering a dissent. A great deal of back-and-forth ensued between chambers, sometimes by phone, sometimes with me acting as a courier. After about a week of this, I said to the judge, “We thought the one saving grace of this awful case was that at least it would be quick and easy, and now it’s not even that.” He said, “Yes, but the more we argue about it, the more interesting it becomes.”
On judicial restraint:
The judge is proud to be widely considered as a champion of judicial restraint, but the term is awfully nebulous. I never thought he was a [Judge J. Harvie] Wilkinson type. He had no problem making “big” decisions if he was convinced that’s what the law required of him. His restraint was in trying to ignore the result in favor of the right process. For instance, in one of our cases we excluded some evidence and held that a warrant was outside of the jurisdiction of the issuing court. Some weeks later, we learned that this warrant was central to a very large number of criminal convictions that were now in jeopardy. The judge, hardly a “defund the police” type, shrugged and said, if this was such an important wiretap, then the government really should’ve followed the rules! He didn’t see it as his job to clean up the executive’s mess, and he thought that “policy arguments,” outside of some discretionary areas, were almost insulting.
Finally, just because:
He and Tricia hosted a dinner for me and recent clerks at their Georgetown townhouse. It’s what you would picture: oriental rugs, bookcases, pheasants he shot for dinner. After dinner we retired to the living room for drinks. The judge went to his little bar and asked us if we had ever tried a drink called Fireball, which his grandson had introduced to him. We then proceeded to drink Fireball from brandy snifters while continuing what was otherwise a very civilized evening.
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As mentioned by Professor Josh Blackman in his own remembrance of Judge Silberman, the judge was scheduled to moderate a panel at next month’s Federalist Society National Lawyers Convention, on the topic of judges picking other judges. It’s a subject I have followed closely and written about, in these pages and for the Wall Street Journal, and I was going to be on the panel. Having never had the pleasure of meeting Judge Silberman, I am sorry to have missed the opportunity to work with him in preparing for this event.
Wonderful remembrance, David, of a shining example of a consummate member of the judiciary and genuine human being.