Laurence Silberman

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Laurence Silberman
WMD intelligence commission.jpg
Silberman (right) with President Bush and Chuck Robb announcing the formation of the Iraq Intelligence Commission
Senior Judge of the United States Court of Appeals for the District of Columbia Circuit
Incumbent
Assumed office
November 1, 2000
Chairperson of the Iraq Intelligence Commission
In office
February 6, 2004 – March 31, 2005
Served with Chuck Robb
President George W. Bush
Preceded by Position established
Succeeded by Position abolished
Judge of the United States Court of Appeals for the District of Columbia Circuit
In office
October 28, 1985 – November 1, 2000
Appointed by Ronald Reagan
Preceded by Seat established
Succeeded by Brett Kavanaugh
United States Ambassador to Yugoslavia
In office
May 8, 1975 – December 26, 1976
Appointed by Gerald Ford
Preceded by Malcolm Toon
Succeeded by Lawrence Eagleburger
United States Deputy Attorney General
In office
1974–1975
President Gerald Ford
Preceded by William Ruckelshaus
Succeeded by Harold Tyler
United States Under Secretary of Labor
In office
1970–1973
President Richard Nixon
Preceded by James D. Hodgson
Succeeded by Richard F. Schubert
Personal details
Born (1935-10-12) October 12, 1935 (age 79)
York, Pennsylvania, U.S.
Political party Republican
Spouse(s) Ricky Gaull
Patricia Winn
Alma mater Dartmouth College
Harvard University

Laurence Hirsch Silberman (born October 12, 1935) is a senior federal judge on the United States Court of Appeals for the District of Columbia Circuit. He was appointed in October 1985 by Ronald Reagan and took senior status on November 1, 2000. He continues to serve on the court. On June 11, 2008, Silberman was named a recipient of the Presidential Medal of Freedom, the highest civilian honor granted by the government of the United States.[1]

Biography[edit]

Silberman graduated from Dartmouth College in 1957 and Harvard Law School in 1961. He served in the United States Army from 1957 to 1958. His first wife, Rosalie "Ricky" Gaull Silberman, co-foundress of the Independent Women's Forum, died on February 17, 2007. Silberman has since married Patricia Winn Silberman.

Silberman is also a friend of Justice Clarence Thomas and in 1989 encouraged a young and then-reluctant Thomas to accept a federal judgeship on the United States Court of Appeals for the D.C. Circuit.[2]

Career[edit]

Silberman has worked in the private sector as a partner at the law firms Moore, Silberman & Schulze in Honolulu and Morrison & Foerster and Steptoe & Johnson in Washington, D.C. He has also served as Executive Vice President of Crocker National Bank in San Francisco. His government service includes stints as an attorney in the NLRB's appellate section, as Solicitor of the Department of Labor from 1969 to 1970, and as Undersecretary of Labor from 1970 to 1973. As Solicitor, he was largely responsible for developing the requirement of goals and timetables as an enforcement device for the affirmative action order. He subsequently regretted his stance, writing, "Our use of numerical standards in pursuit of equal opportunity has led to the very quotas guaranteeing equal results that we initially wished to avoid."[3]

He also led the development of legislation to implement "final offer selection" as a means of resolving labor disputes.[4] As Undersecretary, he repeatedly clashed with Charles "Chuck" Colson and tendered his resignation, compelling the hiring of a black regional director in New York in 1972.[5]

As Deputy Attorney General of the United States from 1974 to 1975, Silberman was tasked with reviewing J. Edgar Hoover's secret files, which he has described as "the single worst experience of my long governmental service."[6] Silberman also served briefly as Acting Attorney General during the Watergate crisis, an experience he has described as awkward: "We were simultaneously carrying out President Nixon's agenda and supporting those who were vigorously prosecuting him."

Gerald Ford appointed Silberman as Ambassador to Yugoslavia from 1975 to 1977. At the same time, Silberman also served as the Presidential Special Envoy for International Labor Organization Affairs. As Ambassador, he succeeded in freeing an American, Laszlo Toth, who had been falsely imprisoned by the regime as a "CIA agent," by putting pressure on both the Yugoslav regime and the State Department.[7] During the campaign for the 1980 presidential election, he was co-chairman of Ronald Reagan's foreign policy advisors. From 1981 to 1985, he served as a member of the General Advisory Committee on Arms Control and Disarmament and the Defense Policy Board. He was a member of the United States Foreign Intelligence Surveillance Court of Review at the time of its first ever session in 2002.[8]

Silberman was on the short list of potential nominees to the Supreme Court on three separate occasions in 1987, 1990, and 1991.[9]

On February 6, 2004, Silberman was appointed co-chairman of the Iraq Intelligence Commission, an independent blue-ribbon panel created to investigate U.S. intelligence surrounding the United States' 2003 invasion of Iraq and Iraq's weapons of mass destruction. In the wake of the resignation of Alberto Gonzales as United States Attorney General in 2007, Silberman was mentioned as a possible successor.[10]

Legal opinions[edit]

As a judge, Silberman has authored a number of noteworthy opinions. In Parker v. District of Columbia, Silberman held that the District of Columbia’s flat ban on the registration and carrying of firearms violated the Second Amendment right “to keep and bear arms.”[11] The case was subsequently upheld by the Supreme Court in District of Columbia v. Heller.[12]

In In re SEALED CASE (Three Cases), Silberman held that the procedures for appointing independent counsels violated the Appointments Clause of the Constitution and the separation of powers, because they interfered with the President’s ability to ensure that the laws are “faithfully executed.”[13] This decision was subsequently reversed by the Supreme Court in Morrison v. Olson, over a vigorous dissent by Justice Antonin Scalia.[14] After the Clinton impeachment episode, many changed their minds on this issue and praised Judge Silberman and Justice Scalia’s position.[15]

In a later per curiam decision captioned In re: Sealed Case No. 02-001, the court upheld a provision of the Patriot Act that made it easier for law enforcement officers and intelligence officers to share information with each other.[16] This was an important decision involving interpretation of the Patriot Act, the use of foreign intelligence, and the role of the FISA Court. Silberman subsequently disclosed that he had in fact written the opinion.

In Seven-Sky v. Holder, Silberman authored an opinion upholding the Affordable Care Act as a constitutional exercise of the Commerce Power, on the grounds that individuals' decisions to remain uninsured, in the aggregate, have a substantial effect on interstate commerce.[17] At the time, a number of commentators viewed Judge Silberman's opinion as an important bellwether of how the Supreme Court might decide the case.[18][19] The Supreme Court ultimately rejected Judge Silberman's reasoning in National Federation of Independent Business v. Sebelius by a vote of 5 to 4, upholding the Affordable Care Act instead as an exercise of the taxing power.[20]

Criticism[edit]

Silberman has attracted some criticism for being involved in overturning the conviction of Oliver North, who had been a key figure in perpetrating the Iran-Contra Affair.[21][22] After the case Lawrence Walsh, who was appointed Independent Counsel to investigate Iran–Contra during the Reagan Administration, wrote that Silberman ought to have been disqualified from judging the case owing to his sympathies for individuals involved in the affair and their cause.[23][21]

In his book Blinded by the Right, David Brock dedicates several pages to criticizing Silberman. Brock alleges that Silberman helped him to defame Anita Hill in Brock's own book, The Real Anita Hill. Brock also alleged that Silberman willfully mixed his political endeavors with his judicial responsibilities.[24] In 2006, Silberman responded at length on Michael Barone's blog to Brock's allegations.[25]

Silberman was implicated by several political commentators as having been involved in the October Surprise conspiracy theory. Silberman responded as follows:

It's ironic because I was responsible for creating the damn story. This was 1980. Bill Safire was then a columnist for The New York Times. He called me and said he had picked up some information that [Reagan national security advisor] Bud McFarlane had picked up a person to come to see [Reagan national security advisor] Dick Allen and me concerning the hostages. So I said, "Yes." I had come back from San Francisco for a meeting of the foreign policy advisors for the Reagan campaign. I was co-chairman of his foreign policy advisors. We were meeting, as I recall, with a group of people on Middle East policy involving Israel and the Palestinian-Israeli question. McFarlane walked in with a fellow who had been a strong supporter of the shah. He was not an Iranian. I thought he said he was from Morocco. I was there for only five or 10 minutes. Allen's contemporaneous memo, which he gave to Congress, said he was a Mr. Mohammed from Malaysia. I got the "M" right. I didn't get the country right. In any case, he was a friend or a supporter of the shah and he was very annoyed at Carter for having abandoned the shah. He had this scheme to contact somebody in the Iranian government or Iranian regime to induce them to release the hostages to Gov. Reagan to humiliate President Carter. My response was, "We have one president at a time." We shortly thereafter got up and walked out. I told Dick to write a memo of that occasion, because I was concerned it could become some kind of a setup and a congressional investigation into the matter chaired by Rep. Lee Hamilton concluded that the allegations were groundless. One of the things I'm grateful about is that The Washington Post never dignified that story. The only newspaper that wrote about the fanciful allegations was the Miami Herald. And the Los Angeles Times at one point.[26]

Academic career[edit]

He was an Adjunct Professor of Administrative Law at Georgetown University Law Center from 1987 to 1994 and from 1997 to 1999, at NYU from 1995 to 1996, and at Harvard in 1998. He currently holds the position of Distinguished Visitor from the Judiciary at Georgetown University Law Center and teaches both administrative law and labor law. Silberman received the Charles Fahy Distinguished Adjunct Professor Award for the 2002-2003 academic year. He has also received a Lifetime Service Award (2006) and a Distinguished Service Award (2007) from the Federalist Society chapters of Georgetown and Harvard, respectively.

References[edit]

  1. ^ White House Press Release
  2. ^ Clarence Thomas: Becoming a Judge--and perhaps a Justice
  3. ^ Silberman, Laurence (Aug 11, 1977). "The Road to Racial Quotas". Wall Street Journal. 
  4. ^ Silberman, Laurence (Spring 2012). "The Development of 'Final Offer Selection'". The Green Bag. 
  5. ^ Hersh, Seymour (July 1, 1973). "Colson Is Accused of Improper Use of His Influence". New York Times. 
  6. ^ "Hoover's Institution," Wall St. Journal (July 20, 2005)
  7. ^ Malcolm W. Browne, “Tito Attacks U.S. Envoy for ‘Pressure Campaign,’” New York Times Aug. 1, 1976.
  8. ^ Members of the Foreign Intelligence Court of Review
  9. ^ "He's Always on the Short List," Charley Roberts, Los Angeles Daily Journal, 1992.
  10. ^ Job opening for attorney general with credibility, CNN.com, (Aug. 30, 2007)
  11. ^ Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).
  12. ^ District of Columbia v. Heller, 554 U.S. 570 (2008), 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).
  13. ^ In re SEALED CASE (Three Cases), 838 F.2d 476 (D.C. Cir. 1988).
  14. ^ Morrison v. Olson, 457 U.S. 654 (1988).
  15. ^ Dartmouth Alumni Magazine, Nov./Dec. 2008, p. 48.
  16. ^ In re: Sealed Case No. 02-001, 310 F.3d 717 (United States Foreign Intelligence Surveillance Court of Review 2002).
  17. ^ Seven-Sky v. Holder, 661 F.3d 1, 14–20 (D.C. Cir. 2011).
  18. ^ Simon Lazarus (2011-11-09). "May It Please the Court." Slate.com. Retrieved 2012-11-18.
  19. ^ Noah Feldman (2011-11-13). "Conservative Health-Care Split Offers Court a Path". Bloomberg. Retrieved 2012-11-18.
  20. ^ National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012), 132 S. Ct. 2566 (2012)
  21. ^ a b Borger, Julian (9 February 2004). "Ex-judge on Iraq inquiry 'involved in cover-up'". The Guardian. Retrieved 5 December 2014. 
  22. ^ Lewis, Neil (28 November 1990). "North Prosecutor is Set Back Again". The New York Times. Retrieved 5 December 2014. 
  23. ^ Goldberg, Michelle (10 February 2004). "The partisan “mastermind” in charge of Bush’s intel probe". Salon (website). Retrieved 5 December 2014. 
  24. ^ Brock, David (2003). Blinded by the Right. Three Rivers Press. pp. 104–106. ISBN 9781400047284. 
  25. ^ Judge Silberman's response to David Brock's book
  26. ^ Dartmouth Alumni Magazine, Nov./Dec. 2008, p. 49-50.
Political offices
Preceded by
William Ruckelshaus
United States Deputy Attorney General
1974–1975
Succeeded by
Harold Tyler
Legal offices
New seat Judge of the United States Court of Appeals for the District of Columbia Circuit
1985–2000
Succeeded by
Brett Kavanaugh
Government offices
New office Chairperson of the Iraq Intelligence Commission
2004–2005
Served alongside: Chuck Robb
Position abolished