Who is Judge Silberman?

November 8th, 2011 at 4:27 pm | 17 Comments |

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Who is Laurence H. Silberman, the judge who has just written a ruling for the DC Appellate court upholding the President’s healthcare law?

He is a judge who came of age at the time when conservatives were responding to the activism of the Supreme Court in the 50′s and 60′s. He is a significant member of the conservative legal world, with membership in the Federalist Society and with a record of service in the Nixon, Ford, and Reagan administrations.

The ruling he perhaps was most famous for before this one was when he ruled that DC’s gun ban was too restrictive and violated the 2nd Amendment. The case was eventually taken up by the Supreme Court and Silberman’s ruling was affirmed.

But Silberman has been in politics for much longer than just the past decade. It could be argued that some of the more profound and significant events in his career occurred much earlier. In 1974, two years after the death of FBI director J. Edgar Hoover, Silberman (who back then was the Deputy Attorney General) was directed by Congress to read the secret files the Hoover kept on public figures.

Silberman recounted that time as “the single worst experience of my long governmental service.” Adding:

Hoover had indeed tasked his agents with reporting privately to him any bits of dirt on figures such as Martin Luther King, or their families. Hoover sometimes used that information for subtle blackmail to ensure his and the bureau’s power.

I intend to take to my grave nasty bits of information on various political figures–some still active. As bad as the dirt collection business was, perhaps even worse was the evidence that he had allowed–even offered–the bureau to be used by presidents for nakedly political purposes.

It would be particularly ironic if liberals used the new court ruling to rehabilitate their image of Silberman. Suffice to say, they have not always had a high opinion of him. He was appointed by George W. Bush to the Iraq Intelligence Commission in 2004 and was the target of a lot of liberal criticism. A Michelle Goldberg piece from 2004 argued that “Silberman has a reputation as a fierce ideologue who doesn’t let his judicial responsibilities get in the way of his Republican activism.”

Evidently, his “Republican activism” includes upholding President Obama’s signature legislative achievement.

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17 Comments so far ↓

  • Saladdin

    “It would be particularly ironic if liberals use the new court ruling to rehabilitate their image of Silberman.”

    And it would be nice if conservatives didn’t disavow him as a RINO either, but what are you going to do?

  • medinnus

    I like the quote from his opinion:

    “It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race…”

    He may be a GOP circa 2004, but that means he’s a RINO in 2011, right?

    • Saladdin

      Medinnus, actually this line is devastating:

      “Appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent…”

      And yes he is a RINO, he was, after all appointed by Reagan (who would be a RINO today).

    • JimBob

      Silberman will never get on the Supreme court now. Bamie care will be overturned. And tonight Ohio voters are shooting down Bamie care 2 to 1.

      • Frumplestiltskin

        one, he is an old guy and as such would have never been appointed to the Supreme Court, and two, the Ohio referendum is meaningless opinion that holds zero force of law. And I guarantee you that if I made a referendum in Ohio stating that insurance companies must be allowed to rescind care due to pre-existing conditions and to deny coverage that that would go down to massive defeat, therefore people in Ohio want the best part of Obamacare but don’t want the essential parts (like the Mandate) to make it work.

        And I love that assertion, there is no way in hell the Court will get rid of Obamacare and Republicans will never get 60 votes in the Senate, therefore Obamacare is here to stay. Might I suggest a drug regimen to adapt to the new reality?

  • ottovbvs

    My eldest son is a fairly successful lawyer and of a conservative bent which means some lively christmas dinners since my other two (one of whom is also lawyer) are decidely the opposite. He’s clerked at the highest levels, is a member of the Federalist society and he was impressed that Silberman penned this opinion. I’m certainly not a expert on the relative standing of US jurists but he is and in his informed opinion for what it’s worth this was a substantial mark in favor of this legislation receiving a ok by the supreme court.

  • indy

    He was also, I believe, a bit of a mentor to Justice Thomas.

  • icarusr

    “It would be particularly ironic if liberals used the new court ruling to rehabilitate their image of Silberman.”

    It always comes back to the libruls, don’t it. And don’t you mean “rehabitilate Silberman” rather than their image of him?

    Sometimes, it is good to view things through other than lib/con, Dem/Rep lenses …

  • Graychin

    If they couldn’t convince Silberman that Obamacare is unconstitutional, how will they convince Kennedy? Roberts, Alito and Scalia may even agree with Silberman.

    It could break 8-1.

  • Brutal: D.C. Circuit upholds ObamaCare mandate — in opinion authored by Reagan appointee « Hot Air

    [...] a guy I’ve described before quite rightly as a “conservative judicial icon.” (Frum Forum has a quickie bio.) Four years ago, he wrote the landmark D.C. Circuit opinion striking down [...]

  • Bobby McGee

    “It would be particularly ironic if liberals used the new court ruling to rehabilitate their image of Silberman”

    Why would they need to do so? PPACA is a Republican plan through and through. A liberal plan would be single payer.

    Republican player upholds Republican ideals, water is wet, the sky is blue. All this and more at news at 11.

  • Emma

    It’s not a matter of “convincing” the conservative wing of the Court; rather, it’s a question whether undercutting ObamaCare is sufficiently important to Roberts/Alito/Scalia/Thomas that they would be willing to expend the last bit of the credibility-capital of Court.

    Def: Credibility is lost when a decision of the Court rests on shaky grounds (i.e., legal luminaries such as Tribe, normally inclined to give the Court every benefit of the doubt, are unwilling to endorce it) and the Court appears politically interested in the outcome. Example: Gore v. Bush.

    The answer, of course, is no. R/A/S/T are not willing to risk it just to take down ObamaCate. There will be bigger targets down the road and they need to keep their remaining powder dry. And, of course, no one knows what Kennedy will do.

  • rbottoms

    The cult of the GOP won’t be satisfied until the Keyan has been ejected from “their” house. If this judge has supported him then he must have been brainwashed or ACORN is blackmailing him or something.

    Give the Republican’s fat gasbag time and he’ll come up with a theory.

    Here’s how he deals with 13 year old’s.

    Rush Limbaugh escalated his attack on Sharon Bialek, the woman who has publicly accused Herman Cain of sexual harassment, on his Tuesday show. Limbaugh even compared Bialek’s teenage son to a Nazi.
    On Tuesday, Limbaugh played an interview that Bialek did with CNN’s Carol Costello. Costello brought up Limbaugh’s Monday soundbite, saying that the host had made a “not very attractive sound with his mouth” in referring to Bialek.

    Limbaugh cried foul, choosing to focus on Costello’s other claim that he had mispronounced Bialek’s name. He said that he was only pronouncing it as Allred had. “I’m used to it, folks,” he said of the criticism.

    Limbaugh also attacked Bialek’s son. In the CNN interview, she told Costello that her son had encouraged her to make her allegations public. “You think Obama doesn’t love hearing this?” Limbaugh said. “A 13-year-old tattle-tale. I mean, that is a brownshirt preview here. Exactly what big government types like.”


    Coming up with a line of attack on the judge should be a piece of cake.

    And still you wonder why we black folks despise the GOP.

  • Steve D

    The problem with the Supreme Court is that, whether they’re “liberal” or “conservative,” they’re all statists. They never met a regulation or a violation of personal freedom they didn’t like.

    Kennedy, Ginzburg and Breyer all voted for the infamous Kelo decision, which stated that the government could take your property if they thought there was a better use for it. Scalia, Roberts, Thomas and Alito have voted against allowing wrongfully imprisoned victims to sue prosecutors, even if the prosecutors engaged in blatant misconduct. Scalia has gone so far as to say that innocence is not a Constitutional bar to incarceration. Sotomayor, before she even got to SCOTUS, handed down an outrageous decision overturning a civil judgement against a thug of an off-duty cop, on the grounds that police are entitled to be taken at their word in court. None are fit to serve and all are in flagrant dereliction of their oath to defend the Constitution.

    • indy

      At least on the Kelo decision, you can take some solace from the fact that the Mississippi ballot measure passed by am overwhelming majority, joining the other 5 or 6 or whatever number of States that have already done something about the decision.

      I also think it is unfair to characterize the Supreme Court decision in this way. The decision basically revolved around the meaning of ‘public use’ and ultimately it simply punted to the states to decide it for themselves, which they are currently in the process of doing. They did a fairly nice job of not overturning prior precedents while still allowing wiggle room for corrections to be made.

  • bdtex

    Now he is the target of a lot of conservative criticism. His conservative critics were hoping for a political decision,not a legal decision on solid legal ground.