Lawrence Silberman: Federal Judge Who Advocated Judicial Restraint

From a Wall Street Journal obit by Jess Bravin, James R. Hagerty, and Jan Wolfe headlined “Lawrence Silberman, Federal Appeals Court Judge, Shaped Conservative Legal Theory”:

Laurence Silberman, an influential conservative during a long career as an appeals court judge and federal government official, died Sunday at his home in Washington, D.C.

Judge Silberman sat for decades on the U.S. Court of Appeals for the District of Columbia Circuit, often called the second-most powerful U.S. court because it hears many challenges to federal regulations and has sent many of its members onto the Supreme Court.

One of the country’s most influential jurists, Judge Silberman shaped Second Amendment jurisprudence and advocated for a philosophy of “judicial restraint,” an approach that emphasizes the limited role of the judiciary in the U.S. constitutional system.

“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,” Judge Silberman said in a 2002 interview for an oral-history project.

“One of the things that has disappointed me terribly about being a judge is the recognition as to how few judges and justices are really believers in judicial restraint,” the judge added.

Judge Silberman had a varied career in government before joining the bench, serving as a high-ranking government lawyer in the Nixon and Ford administrations and as President Gerald Ford’s ambassador to Yugoslavia.

Laurence Hirsch Silberman was born Oct. 12, 1935 in York, Pa.

When he was a child, his paternal grandfather—a wealthy businessman who worked in the steel industry—began encouraging him to attend Harvard Law School, he recounted. wanted to be a lawyer from the time I was 6 years old,” he said in the interview, another oral history.

Judge Silberman said that he had limited memory of his father, who divorced his mother when he was 9.

He earned a bachelor’s degree in history at Dartmouth in 1957 and, after service in the U.S. Army, a law degree at Harvard University in 1961.

He worked in the Labor Department in the early 1970s, helping draft the Occupational Safety and Health Act, a workplace-safety law, and the Employee Retirement Income Security Act, or Erisa, which establishes minimum standards for pension plans in private industry.

Judge Silberman became deputy attorney general in 1974, during the final months of Richard Nixon’s presidency. During his Senate confirmation hearings, he pledged to respect the independence of the special prosecutor investigating the Watergate scandal.

While in the Justice Department, he conducted a review of former FBI Director J. Edgar Hoover’s secret files. In a 2005 op-ed for The Wall Street Journal, Judge Silberman called that assignment “the single worst experience” of his government career.

“I intend to take to my grave nasty bits of information on various political figures—some still active,” Judge Silberman wrote. “As bad as the dirt collection business was, perhaps even worse was the evidence that [Mr. Hoover] had allowed—even offered—the bureau to be used by presidents for nakedly political purposes.”

President Ronald Reagan nominated him to the D.C. Circuit in 1985.

In 1988, Judge Silberman wrote an influential decision on the Independent Counsel Act, a law that allowed for the appointment of special prosecutors. Judge Silberman said the statute was unconstitutional because it unduly interfered with the president’s powers.

The Supreme Court later disagreed and found the law was constitutional. But Judge Silberman’s decision has been praised as prescient, said John Yoo, a law professor at the University of California at Berkeley.

“His criticism of the independent counsel law is one of the classic cases and, like his rigorous approach to the separation of powers, has eventually won the day,” said Mr. Yoo, one of Judge Silberman’s former law clerks.

In 2007, he wrote an appeals court opinion finding that a District of Columbia ordinance regulating gun ownership was unconstitutional. The ordinance effectively banned handguns and required that rifles be disassembled or disabled by trigger locks in the home.

Judge Silberman took a broad view of the Second Amendment, laying out the historical case for it protecting the individual right to gun ownership, unconnected with service in a militia.

In 2008, the Supreme Court ruled 5-4 to strike down the District of Columbia ordinance. The majority decision, Heller v. District of Columbia, adopted Judge Silberman’s reasoning.

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