America Loses a Judicial Giant

That vision didn’t please everyone—or anyone all of the time. He horrified progressives by rescuing the Second Amendment from obscurity and confounded conservatives by upholding the Affordable Care Act. But disappointing those who view judicial decisions through a political lens was part of the job. In his view, judges were limited to considering the arguments of the parties and the text of statutes and the Constitution, which didn’t always align with anyone’s policy preferences, including his own. Sometimes his vision of judicial restraint was too much for the Supreme Court, as when he refused to look beyond the parties’ arguments to see whether the statute they were arguing about was even still on the books. But in other cases, justices followed his lead.

Two examples make the point. Relatively early in his career, Silberman penned a majority opinion for the D.C. Circuit in In re Sealed Case (1988), a name that deliberately obscured its importance. The question was the constitutionality of the independent counsel statute, and Silberman had little difficulty finding the notion of a prosecutor unaccountable to the president antithetical to the Constitution. The opinion combines great scholarship and keen practical insight born of extensive executive-branch service. While the Supreme Court disagreed, Silberman’s opinion formed the first draft of Scalia’s most famous dissent, in Morrison v. Olson, and was vindicated when Congress, having seen both parties’ oxen gored by the law, let the law expire in 1999.

In 2007 Silberman broke from the consensus of lower court opinions, which had neutered the Second Amendment by deeming it to protect only a “collective” right for millitias to bear arms, and struck down the District of Columbia’s handgun ban. This time, in Heller v. D.C., the high court agreed, and Scalia wrote perhaps his most famous majority opinion.

The connection between Silberman and Scalia ran deeper than these opinions. Silberman helped recruit Scalia to the Justice Department during the Ford administration, and President Reagan appointed both to the D.C. Circuit.

Yet Silberman’s judicial career is only a small part of the story. I interviewed him in 2017 for an oral-history project. We were several hours in before we got to his service on the bench. Before his 40th birthday, Silberman had been appointed as undersecretary of labor (1970-73), deputy attorney general (1974-75) and ambassador to Yugoslavia (1975-76). Even after his confirmation to the D.C. Circuit in 1985, Article III was insufficient to contain his talents. President

George W. Bush

tapped him as a co-chairman of the Robb-Silberman Commission on intelligence failure in Iraq. In 2008 Mr. Bush awarded Silberman the Presidential Medal of Freedom.

Silberman knew how to pick a principled fight. At the Labor Department during the Nixon administration, he repeatedly clashed with White House officials and threatened to resign rather than do the bidding of

Chuck Colson.

Years later, over the objections of the Federal Judges Association, he led a successful lawsuit arguing that Congress had violated the Constitution’s Compensation Clause by denying cost-of-living increases to federal judges.

He also knew how to pick friends. Despite disagreements on the bench, they included Justices

Ruth Bader Ginsburg

and

Stephen Breyer

and Judges

Harry Edwards

and

Merrick Garland.

His second marriage, to

Patricia Winn Silberman,

was a bipartisan alliance, after the 2007 death of his beloved first wife, Ricky.

Silberman was a national treasure, but to his former law clerks he was more. The year with the judge was a once-in-a-lifetime experience. It was an entirely oral clerkship. No bench memos were needed, but verbal sparring over the right answers was expected. He told war stories over lunch about everything from practicing law in Hawaii to dealing with Yugoslav dictator

Josip Broz Tito.

Being a Silberman clerk meant having a loyal mentor and trusted adviser for life. When I recently had to make a tough professional choice, the judge was among my first calls. I was a bit embarrassed to find I was interrupting his vacation in Cornwall, England. He gave me his full attention and his characteristic clear-eyed advice. The advice confirmed what he taught me, but I wouldn’t have made the move without consulting him.

His former clerks will be at something of a loss without him, but his example will continue to guide us. It is a quite a group, featuring numerous academics, leading practitioners and federal judges, including Justice

Amy Coney Barrett.

Those clerks, and the countless others he has mentored, are as important to his professional legacy as his judicial opinions and other speeches and writings.

It is a sad day. We have lost one of the great ones. But we have the enduring legacy of a happy warrior for judicial restraint, personal character and professional courage.

Mr. Clement served as U.S. solicitor general, 2005-08. He was a clerk for Judge Silberman (1992-93) and Justice Scalia (1993-94).