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A Judge for First Principles


Clarence Thomas

is celebrating his 30th anniversary on the Supreme Court. And how fitting it is that the Gray Center at

Antonin Scalia

Law School at George Mason University honored that milestone last week with its first annual Justice Clarence Thomas First Principles Award. Even more fitting is that the first honoree is

Laurence Silberman

of the D.C. Circuit Court of Appeals.

Laurence Hirsch Silberman



Photo:

Alamy Stock Photo

Judge Silberman has taken senior status but continues to hear cases at age 86. He is one of the all-time giants of the federal bench, and he may be the most influential judge never to have sat on the Supreme Court. Dozens of his former law clerks, including Justice Amy Coney Barrett, have populated the federal bench, the executive branch, and even a law school faculty or two.

Judge Silberman is revered as a judge for his fealty to the law as written and the proper understanding of the Constitution. In 2007 (Parker v. D.C.), he plumbed the historical record to explain how the District of Columbia’s sweeping regulation of firearms violated the Second Amendment. His opinion offered a constitutional roadmap that was the basis for Justice Scalia’s landmark opinion in Heller v. D.C. that found the right to bear arms is an individual right and not merely for militias.

In 1988 (In re Sealed Case), he held that the independent counsel statute violated the Constitution’s Appointments Clause. The Supreme Court failed to agree in one of its worst decisions, Morrison v. Olson. But Judge Silberman’s view was echoed in Justice Scalia’s famous dissent in Morrison that has been vindicated by history.

The judge proved in the first ObamaCare case that he could rule against his policy preferences if he believed the law required it. His opinion found against the constitutional challenge to the law on grounds that he was obliged to follow the precedent of Wickard v. Filburn. The Supreme Court ruled differently on the Commerce Clause, but the High Court has the luxury of interpreting its own precedents.

As deputy Attorney General in the 1970s, Judge Silberman was asked by Congress to testify on the late FBI director

J. Edgar Hoover’s

secret and confidential files and so was obliged to read them. In a 2005 op-ed in these pages, he called examining those files the “single worst experience of my long governmental service.” He vowed to take the secrets he read about politicians to his grave, and so they have never leaked to this day.

The judge also did a great service by answering

George W. Bush’s

call to co-chair (with former Sen. Chuck Robb) the commission that investigated the intelligence failure on weapons of mass destruction in Iraq. The commission found lamentable failures but put to rest the partisan claims of deception. In a time when too many people think judges are politicians in robes, Judge Silberman has shown by example how to live and work by first principles.

Wonder Land: Justices Stephen Breyer and Amy Coney Barrett share at least one opinion: The Supreme Court is in trouble. Images: Pool/AFP/Getty Images Composite: Mark Kelly

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Appeared in the October 25, 2021, print edition.



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