Judge Laurence Silberman of the D.C. Circuit Court of Appeals died on Sunday. The Wall Street Journal has full coverage, including an obituary, house editorial, and op-ed by Paul Clement. (Indeed, I suspected something was up when the WSJ published Judge Silberman's Constitution Day address at Dartmouth.) He was a legal giant. Few today could ever scale to his height and influence. Here, I will include a short anecdote about my experiences with Judge Silberman.
In November 2021, I wrote about an unusual judicial misconduct issue. Judge Silberman alleged that Judge Sullivan (D.D.C.) should not be able to sit on the District of Columbia's judicial selection committee. Silberman's complaint was grounded in the separation of powers, as well as the code of conduct. Eventually, my post came across Judge Silberman's radar. In April 2022, his law clerk contacted me, and said that the Judge would be happy to chat with me about the matter. By chance, I was scheduled to be in D.C., and asked if we could meet in person. Judge Silberman obliged.
My brief hour with Judge Silberman is a time I will never forget. He explained why he was motivated to bring this complaint. There was noting personal against Judge Sullivan. Rather, he did not want judges getting involved in the political process. Judge Sullivan told me that when President George W. Bush asked him to co-chair the commission on the intelligence failures leading up to the Iraq War, Silberman considered resigning from the bench. However, he learned that he could simply stop all judicial business while performing his role for the executive branch. And so he did. For a period, Judge Silberman did not decide any cases or participate in any court business. Silberman couldn't even use his judicial clerks and staff during that time. Silberman explained that if Judge Sullivan really wanted to serve on this judicial selection committee, he could put on hold all of his court business.
