Laurence H. Silberman, one of the most influential conservative judges on the federal appellate bench, whose opinions on Second Amendment rights, the separation of powers, and the limits of press freedom resonated in the decisions of the US Supreme Court and across American jurisprudence, died Sunday at his home in Washington. He was 86.
His son Robert confirmed his death and said the cause was an undiagnosed infection.
Judge Silberman was named to the US Court of Appeals for the D.C. Circuit by President Reagan in 1985. He remained in full-time service on that bench - widely considered the second-most important judicial body in the country after the Supreme Court - until taking senior status in 2000. He continued hearing cases until shortly before his death and was celebrated among conservatives as a constant if sometimes provocative exponent of judicial restraint, the notion that judges must limit the exercise of their power to the analysis of the legal questions that come immediately before them.
Judge Silberman’s decades on the D.C. appeals court capped a government career that dated to the administration of Richard Nixon, one of several Republican presidents he served. Under Nixon, Judge Silberman was the Labor Department’s top lawyer and deputy attorney general. Under President Ford, he served as ambassador to what then was Yugoslavia from 1975 to 1976.
Three decades later, Judge Silberman paused his judicial duties when President George W. Bush named him and Chuck S. Robb, a Democrat who served as senator and governor of Virginia, as co-chairmen of a presidential commission that issued a scathing report on the intelligence failures leading to the US invasion of Iraq in 2003.
Bush later awarded Judge Silberman the Presidential Medal of Freedom, the nation’s highest civilian honor, calling him “a stalwart guardian of the Constitution” whose “work to strengthen our national security institutions has made Americans safer.”
But Judge Silberman was best known as a jurist, and for the rigorous, sometimes tartly worded opinions he issued elucidating his legal worldview.
"It has always seemed rather simple to me that in a democracy federal judges appointed for life may not allow themselves, or should not allow themselves, to make policy judgments," he once said in an oral history for the Historical Society of the District of Columbia Circuit." Rather, he said, they "should do their very best to interpret the policy judgments Congress makes and turns into legislation as well as the policy judgments that are embodied" in the Constitution.
That position, “didn’t please everyone - or anyone all of the time,” Paul Clement, a former clerk to the judge who became US solicitor general, wrote in the Wall Street Journal. “But disappointing those who view judicial decisions through a political lens was part of the job.”
Judge Silberman “wrote important opinions and spotted lurking jurisdictional defects,” Clement observed, “as he strived to model his vision of judicial restraint.”
Judge Silberman issued one of his most important opinions in Parker v. District of Columbia, authoring the 2-1 decision in 2007 that found a District gun control measure in violation of Second Amendment protections of the right to bear arms.
The case proceeded as District of Columbia v. Heller to the Supreme Court, which voted 5-4 the following year to strike down the D.C. law. Justice Antonin Scalia’s majority opinion, one of the most significant of his career, reflected Judge Silberman’s view that Second Amendment protections apply not only to militia members, but also to individuals.
Judge Silberman wrote a majority opinion in 1988 that would have invalidated the law that created an independent counsel to investigate government officials, including the president, accused of certain federal crimes. The judge saw the law as a violation of the separation of powers.
The case advanced to the Supreme Court as Morrison v. Olson, in which the court voted to uphold the independent counsel law. It was, Judge Silberman said, “my greatest disappointment as a judge.” Scalia wrote a noted dissent - of which Judge Silberman’s earlier opinion had “formed the first draft,” according to Clement - and the law was allowed to expire in 1999.
Judge Silberman occasionally surprised court-watchers, including when he voted to uphold the 2010 Affordable Care Act, one of President Obama’s signature policy achievements, against Republican challenges. He disliked the law but argued that it was supported by the “commerce clause” of the Constitution allowing Congress to regulate commerce between the states.
Judge Silberman was frequently floated as a contender for a seat on the Supreme Court, including when Justice William Brennan Jr. resigned in 1990. Around that time, Judge Silberman ruled in favor of Oliver L. North, the National Security Council aide who had appealed his convictions in connection with the Iran-contra affair. (The charges against him were eventually dropped.) According to The Washington Post, Judge Silberman’s decision in that case was seen as possibly costing him the Supreme Court nomination, which ultimately went to David Souter.
“Judge Silberman had a powerful legal mind, enormous energy, and a passion for freedom,” Chief Justice John Roberts said in a statement. “Our country benefited greatly from that combination. And there was never a dull moment when he was in the room.”
Laurence Hirsch Silberman was born in York, Pa., on Oct. 12, 1935. His paternal grandfather made a fortune in the steel industry, and he described his father as "spoiled and pretty much a ne'er-do-well who lost a great deal of money in various ventures financed by my grandfather."
Laurence Silberman was a baby when his 5-year-old brother was fatally struck by a car. His parents soon relocated to Philadelphia and then to New Jersey. His parents divorced when he was 9, and his mother later worked in real estate and remarried. He said that his mother, his grandfather, and an uncle who was a lawyer all encouraged him to enter the legal field.
He graduated with a history degree from Dartmouth College in 1957 and, after Army service, from Harvard Law School in 1961. He practiced law in Hawaii before joining the National Labor Relations Board as a lawyer in 1967. At the Labor Department, he helped draft the Occupational Safety and Health Act of 1970 and the Employee Retirement Income Security Act of 1974.
At the Labor Department, Judge Silberman threatened to resign when the Nixon administration attempted to block the nomination of an African American labor scholar. He was deeply affected by an episode in 1975 when, as a top Justice Department official, he was tasked with reviewing the secret files of J. Edgar Hoover, the powerful FBI director who had died three years earlier.
“It was the single worst experience of my long governmental service,” Judge Silberman wrote years later in the Journal. “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,” Judge Silberman continued. “I have always thought that the most heinous act in which a democratic government can engage is to use its law enforcement machinery for political ends.”
In between his stints in government, he worked in private practice, as a senior fellow at the American Enterprise Institute in Washington and as an executive at Crocker National Bank in San Francisco.
Judge Silberman was married for 49 years to Rosalie Gaull “Ricky” Silberman, who co-founded the Independent Women’s Forum, an advocacy organization representing conservative women. She was a vocal supporter of Supreme Court nominee Clarence Thomas during his 1991 confirmation process, which was bitterly contested over allegations that he had sexually harassed Anita Hill, a former colleague at the Equal Employment Opportunity Commission, where Judge Silberman’s wife also had worked. Thomas was ultimately confirmed to the high court.
Ricky Gaull Silberman died in 2007.
In 2008, Silberman married Patricia Winn. Besides his wife, of Washington, and son Robert, of Potomac, Md., he leaves two daughters, Katherine Fischer of Washington and Annie Otis of Hartford; a sister; eight grandchildren; and a great-granddaughter.