One of the true titans of the federal judiciary, Judge Laurence H. Silberman of the D.C. Circuit Court of Appeals, has passed away at 86.
As it should be, reflections are pouring in. I recommend those of Josh Blackman at Volokh (which includes a great story about Judge Silberman’s views on keeping the judiciary out of politics) and Paul Clement in the Wall Street Journal. Clement, like Justice Amy Coney Barrett and our friend Professor John Yoo, is just one of the country’s brilliant and legal lights who was mentored by Judge Silberman before clerking on the Supreme Court. The Journal also has a great editorial on the judge’s life and, as Blackman observes, made a point Friday of publishing as an op-ed Silberman’s stirring talk last month during a Constitution Day event at his undergraduate alma mater, Dartmouth, on the vital place of free speech in American democracy.
One of the themes of Silberman’s speech was an opinion he wrote not so long ago — I’d say a notable and insightful opinion, but that would describe too many of his opinions to be very helpful — urging that the Supreme Court’s libel ruling in New York Times v. Sullivan be overturned. I wrote about the dissent shortly after Silberman issued it last year. Characteristically, it is rooted in the Constitution and a deeply principled grasp of the judicial role, which is more than can be said about the high court’s 1964 decision, so beloved by the media and by progressives who look to the judiciary to drive their policy preferences through the Constitution’s strictures.
Could Sullivan ever be overturned? Judge Silberman had a way of making the unlikely seem possible. That is attested by his opinions that laid the groundwork for the Supreme Court’s articulation of Second Amendment safeguards in Heller and for Justice Scalia’s great dissent in Morrison v. Olson, which dismantled the concept of prosecutors independent from the executive branch — wisdom that led Congress to let the statutory experiment lapse (after presidents of both parties had been burned by it).
Judge Silberman’s contributions to our nation transcend his stellar service as a judge. Silberman’s Dartmouth speech fondly recalled his time as American ambassador to Yugoslavia. As Charlie recently pointed out, it was Silberman who, as deputy attorney general in 1974, was assigned to review J. Edgar Hoover’s secret files, and was horrified by the extent to which the FBI’s founding director had exploited the bureau’s awesome powers for nakedly political and extortionate purposes.
The Journal’s editorial recounts Silberman’s service, in conjunction with former Senator Chuck Robb, on the commission that reviewed intelligence failures in connection with the Iraq War and refuted the partisan claims that the Bush 43 administration had deliberately misrepresented intelligence to justify the 2003 U.S. invasion. Blackman recounts how Silberman suspended his judicial work to serve on the commission, which — as the Journal’s editorial notes — the judge considered his most important act of public service.
The country has lost a great American patriot and a model jurist. Requiescat in pace.