In 2020, Elizabeth Warren proposed an amendment to the National Defense Authorization Act seeking to rename a number of U.S. military installations. For over a century, military base names have functioned as the highest profile federally sanctioned Confederate monuments. Generally located in the South, segregationist politicians serving in the early to mid-20th century successfully branded these massive federal sites after Confederate generals — digging far enough in the barrel to name one after Braxton Bragg who was not only a traitorous cur but wasn’t even good at his job!
Judge Laurence Silberman of the D.C. Circuit sent an email blast to the entire court’s membership and staff laying out his “opposition to the madness proposed by Senator Warren: the desecration of Confederate graves” complete with some glib observations downplaying the role slavery played in the war. The proposal had nothing to do with graves, just removing names slapped on facilities by bigots decades after they lost the Civil War, though fringe media outlets floated the false talking point that Warren’s law would dig up Confederate graves. The D.C. Circuit leadership did nothing in response, but one of the circuit’s five Black clerks responded detailing the actual history of the war, even quoting a specific man whose name adorns a base explaining that it was a struggle to maintain white supremacy.
As the clerk pointed out, years earlier, Judge Silberman called upon the federal government to remove J. Edgar Hoover’s name from the FBI Building, noting that “this country – and the Federal Bureau of Investigation – would be well served if [Hoover’s] name were removed from the bureau’s building. It is as if the Defense Department were named for Aaron Burr. Liberals and conservatives should unite to support legislation to accomplish this repudiation of a very sad chapter in American history.” The judge understood the value of a nation refusing to honor its most disgraceful citizens at one point.
“At one point” is a bit of a theme.
The short Civil War history lesson also put Silberman’s most enduring judicial accomplishment in context. It’s Silberman’s work on the D.C. Circuit’s Heller opinion that found itself parroted in the Supreme Court opinion. As the Wall Street Journal put it in a sentence of pure unintentional hilarity, Silberman is credited with “laying out the historical case for it protecting the individual right to gun ownership, unconnected with service in a militia.” That amateur history is riddled with errors, but defines the modern originalist approach: armchair historians cherry-picking and hand-waving their way to the policy result they want.
Yet at one point, he had championed judicial restraint and criticized both liberal and conservative judges for overstepping their charge and reverse engineering opinions to get a result. It’s a level of circumspection at odds with the project of cobbling together a Frankenhistory of guns in order to strike down decades of established precedent
Silberman also made a name for himself as a committed opponent of acronyms, castigating litigants for using the standard acronyms deployed in government cases. Agency names, regulations, titles of statutes… the judge didn’t want to read any of that. His edict even forced a party to seek an emergency word limit extension to accommodate acronyms so central to FCC — sorry, Federal Communications Commission — practice that other judges use them in the opening paragraphs of opinions. Silberman had worked in the government where all these acronyms fly around daily for the better part of half a century.
This all doesn’t quite match up with the rest of his career. He worked to implement affirmative action from 1969-70 (work for which he later expressed public regret). As Deputy AG, he scoured Hoover’s files, forming the basis for his demand that the former FBI Director have his memorials stripped. The defender of judicial restraint recently wrote in dissent that the First Amendment should be curtailed because mainstream media are “Democratic Party broadsheets” and Big Tech is conspiratorially trying to silence conservatives.
When we talk about judicial term limits, it’s usually about securing the legitimacy of the courts by maintaining a credible link between the judiciary and the elections that install them. We also talk about breaking the incentives that end in unqualified judges and overlooked veteran lawyers as presidents “race to the bottom” to place the youngest possible nominees to ensure outsized deadhand influence over the courts.
But there’s also a value in giving judges the opportunity to get out while the getting is good — and before the headlines are all about complaining about the First Amendment and spouting off about protecting the memories of Confederate generals. Most pieces about the judge’s passing will focus on the rest of his long and distinguished career — and that’s good! — but it’s irresponsible to gloss over the tail end of his tenure. This job is too important.
Earlier: Hero Federal Clerk Puts Judge In His Place Over Confederate Monuments
Quote of the Day: WTF? Please STFU or GTFO
Benchslap Of The Day: LMAO At D.C. Cir.
Benchslap Of The Day: The D.C. Circuit Calls Out A Top Law School Professor
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.