D. C. Circuit Review – Reviewed: Civic Charity and Judge Silberman
It’s hard to imagine the D. C. Circuit without Judge Larry Silberman. As has been noted by many since his passing last week he was a commanding presence, an iconic judge. https://www.nytimes.com/2022/10/05/us/laurence-silberman-dead.html; https://www.washingtonpost.com/obituaries/2022/10/03/laurence-silberman-federal-appeals-judge/; https://www.yalejreg.com/nc/the-most-intimidating-judge-i-ever-met-reflections-on-judge-laurence-silberman/; https://www.wsj.com/articles/america-loses-a-judicial-giant-laurence-silberman-restraint-dc-circuit-constitution-judge-legacy-scalia-clerks-second-amendment-11664750990
I shall miss him. Before joining the D. C. Circuit I was in awe of Judge Silberman and his singular career of distinguished public service. Six presidential commissions!?! Five Senate confirmations!?! The stuff of legends.
Close scrutiny of an icon sometimes leads to disillusionment, but not so with Judge Silberman. My fifteen years working alongside him only increased my deep respect for his talents as a jurist and a public servant. One could have no better ally when he was on your side and no more fearsome opponent when he wasn’t. I was blessed with both experiences!
As to the first sort, in my second term on the D. C. Circuit, he and I formed the majority in the case that was known as Heller when affirmed by the Supreme Court. As the senior judge in the majority on that panel, I could have assigned myself the writing of that opinion, but asked him to do so instead. Watching Judge Silberman craft that opinion was a powerful tutorial for this new and impressionable judge. That he sought my input, which he did not need, was a gracious act that I appreciated deeply.
As to the second sort, I remember the first time Larry took strong issue with a position I had advanced on a matter of court policy. I was taken aback and a little shaken. I was already feeling a little overwhelmed by being on the court and now I had been dressed down in front of my new colleagues by Larry Silberman! A phone call from a more senior colleague comforted me. “Welcome to the Court. You’re not fully a member until Larry has taken you to task. Don’t worry, it’s a compliment — a sign that he takes you seriously.”
A highlight of each term of the court was the off-the-record lunch my law clerks and I would enjoy with Judge Silberman. He was a raconteur without peer, and I wanted my clerks to spend time with a person whose life had been defined by the dedication of his extraordinary gifts to the service of our nation. I wanted them to be inspired by Judge Silberman the way he always inspired me.
I have enjoyed the descriptions offered by others of his public service, but many of them have overlooked what I think of as one of his greatest achievements, which may come as a surprise to those who did not know him well. Judge Harry Edwards, his good friend on the Court and in life, described it best:
“One of Larry’s greatest contributions to the court came in 1987, when he reversed his position and voted to deny petitions for en banc review in Bartlett v. Bowen, 824 F.2d 1240, 1246 (D.C. Cir. 1987) (Silberman, J., concurring in the denials of rehearing en banc), and in two other highly controversial cases in which the court had initially granted en banc review. During the 1980s, the court was badly fractured because judges appointed by Presidents of the same party too often sided with one another seemingly out of partisan loyalty. Given the politics of the court at that time, and the public’s perception of our overly politicized voting tendencies, Larry’s decision to change his vote was as important as anything that I have seen during my 42 years on the court. He opted in favor of institutional integrity over personal ideology and political expediency. And the result in Bartlett helped to curb judicial tendencies that might have proven disastrous in the long run. It also helped to set the stage for our court to be recognized as a model of collegiality in judicial decision making. During my term as Chief Judge, Larry also used his influence with our colleagues to help ensure that ideological differences would not be significant in judicial interactions. His efforts paid huge dividends. And, as the members of the court were coming together, he graciously opened his home at the end of several terms to host festive dinner parties for the judges and our spouses or mates, during which we shared raucous tales about one another and laughed about the trying moments of the year that had just ended. I will always be grateful to him for doing so much to promote collegiality on our court.”
I was a beneficiary of the leadership of Judge Silberman (and Judge Edwards) to help make the D. C. Circuit a collegial court where the judges worked hard to find common ground and to express their disagreements with respect when they could not. When he was appointed Chief Justice, John Roberts, who had served on the D. C. Circuit that Judge Silberman helped create, pointed to the Court as a model of collegiality for the judiciary. I’ll do the Chief one better. In a time of hyper-partisanship marked by a toxic polarization in much of our nation’s public life, Judge Silberman’s commitment to collegiality serves as an example for all of our institutions and for each of us.
The Court released only one opinion last week. In Washington Alliance of Technology Workers v. DHS, the Court, in an opinion written by Judge Pillard and now-Senior Judge Tatel upheld the district court’s rejection of a challenge to a 2016 Department of Homeland Security rule authorizing up to one year of post-graduation on-the-job practical training directly related to the academic concentration of a student on an F-1 foreign-student visa, with up to two additional years for students in science, technology, engineering and mathematics fields. The Court concluded that the rule is reasonably related to the nature and purpose of the F-1 visa class, which is to pursue a full course of study at an academic institution, and the optional practical training program is a valid exercise of the long-standing statutory authority of the Executive Branch to set the “time and conditions” of a non-immigrant’s stay in the United States. The majority thought the case could be resolved at Chevron Step One or Two. Judge Henderson dissented at Chevron Step One and suggested that the Secretary’s rule may run afoul of the emerging Major Questions Doctrine.