Transcript of Ceremony: November 8, 2002 - Dcchs.org

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UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
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PORTRAIT PRESENTATION CEREMONY
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THE HONORABLE LAURENCE H. SILBERMAN
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The ceremony commenced at 4:00 p.m., on
November 8, 2002, in Courtroom 20 of the United States
Courthouse, Third Street and Constitution Avenue, NW,
Washington, D.C. The Honorable Douglas H. Ginsburg,
Chief Judge of the United States Court of Appeals for
the District of Columbia Circuit, presiding.
Hon. Douglas H. Ginsburg
Hon. Harry T. Edwards
Hon. Merrick B. Garland
Hon. Karen LeCraft Henderson
Hon. Judith W. Rogers
Chief Judge, United
States Court of Appeals
for the District of
Columbia Circuit
United States Court of
Appeals for the District
of Columbia Circuit
United States Court of
Appeals for the District
of Columbia Circuit
United States Court of
Appeals for the District
of Columbia Circuit
United States Court of
Appeals for the District
of Columbia Circuit
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Hon. David B. Sentelle
Hon. Laurence H. Silberman
Hon. David S. Tatel
Hon. Stephen F. Williams
United States Court of
Appeals for the District
of Columbia Circuit
United States Court of
Appeals for the District
of Columbia Circuit
United States Court of
Appeals for the District
of Columbia Circuit
United States Court of
Appeals for the District
of Columbia Circuit
Speakers:
Hon. Antonin Scalia
Hon. Clarence Thomas
Hon. Patricia M. Wald
John F. Manning, Esq.
Eugenie N. Barton, Esq.
Stuart Levey, Esq.
Hon. Ricky Silberman
Associate Justice,
Supreme Court of the
United States
Associate Justice,
Supreme Court of the
United States
Former Judge, United
States Court of Appeals
for the District of
Columbia Circuit
Professor of Law,
Columbia University
Former Law Clerk to
Judge Silberman
Former Law Clerk to
Judge Silberman
Wife of Judge Silberman
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C-O-N-T-E-N-T-S
Welcome
Hon. Douglas H. Ginsburg . . . . . . . . . . . 4
Tributes to Hon. Laurence H. Silberman
By Hon. Antonin Scalia . . . . . . . . . . . . 6
By Hon. Clarence Thomas . . . . . . . . . . . . 10
By Hon. Patricia M. Wald . . . . . . . . . . . 17
By John F. Manning, Esq. . . . . . . . . . . . 21
By Eugenie N. Barton, Esq. . . . . . . . . . . 25
By Stuart A. Levey, Esq. . . . . . . . . . . . 32
Remarks of Hon. Ricky Silberman . . . . . . . . . 37
Remarks of Hon. Douglas H. Ginsburg . . . . . . 39
Remarks of Hon. Laurence H. Silberman . . . . . . 40
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P-R-O-C-E-E-D-I-N-G-S
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4:02 p.m.
BAILIFF OF THE COURT: Oyez, oyez, oyez,
all persons having business before the Honorable
United States Court of Appeals for the District of
Columbia Circuit are admonished to draw near and
give their attention, for the Court is now sitting.
God save the United States and this Honorable Court.
Be seated, Please.
JUDGE GINSBURG: Welcome to the
unveiling of the portrait of our colleague, the
Honorable Laurence H. Silberman. It is a great
personal pleasure for me to pay tribute to my friend
and colleague today.
Judge Silberman was nominated to a new
seat on this Court on September 11, 1985. He served
as a Circuit Judge from October 28 of that year
until November 1 of 2000, when he assumed senior
status.
Before coming to the bench, Judge
Silberman had a long and illustrious career serving
as, among other things, the Solicitor of Labor, the
United States Department of Labor; the Deputy
Attorney General of the United States; United States
Ambassador to Yugoslavia; a private practitioner in
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Hawaii and in California; and as a professor of law.
Judge Silberman now serves as an adjunct professor
of law at Georgetown Law Center, as well as
continuing to hear cases as a Senior Judge of this
Court.
On behalf of the Court, I am pleased to
welcome Judge Silberman and his family to this happy
occasion. I am pleased to welcome Judge Silberman's
and our many distinguished guests: my colleagues, of
course, on the Court of Appeals and on the District
Court, members of other courts, eminent members of
the bar, and Judge Silberman's friends and law
clerks.
I would particularly like to recognize
from the Supreme Court, in addition to Justice
Stephen Breyer, our three former colleagues:
Justices Antonin Scalia, Ruth Bader Ginsburg, and
Clarence Thomas, along with Secretary Donald
Rumsfeld, Secretary of Defense.
Deputy Attorney General Larry Thompson
is here, Solicitor General Ted Olson, and former
members of our bench, Judge Patricia Wald and Judge
Kenneth Starr.
Before we begin, I would be remiss if I
didn't pass along the regrets of Judge Raymond
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Randolph for not being on the bench today. He had a
longstanding commitment to speak at the Third
Circuit Judicial Conference, which just happened to
be in the Virgin Islands.
(Laughter.)
Before the unveiling of Judge
Silberman's portrait, which will be done by Judge
Silberman's wife, the Honorable Ricky Silberman,
known to virtually everyone here very well, there
will be several tributes to Judge Silberman.
Our first speaker today will be Justice
Antonin Scalia of the United States Supreme Court.
Justice Scalia served on this Court from 1982 until
1986, when he was elevated to the Supreme Court,
which has the privilege of sitting en banc all of
the time.
Nino, it is an honor to have you back.
Please.
JUSTICE SCALIA: Chief Judge Ginsburg,
and may it please the Court, I am happy to be back
before the Court that I used to sit on. Let me
abbreviate my remarks by acknowledging the presence
of all of the people whom you named already.
(Laughter.)
And, in addition, Ricky and the
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Silberman family.
I am very happy to take part in this
ceremony honoring Judge Laurence Silberman. I have
no closer friend in the world and have no
acquaintance who has made as deep and clear a mark
upon this town. A quick review of his resume
displays at once the diversity of his abilities,
from Executive Vice President of one of the
country's major banks to Under Secretary of Labor,
from partner in a major law firm to Ambassador of
the United States to Yugoslavia, from Deputy
Attorney General of the United States to Judge of
the United States Court of Appeals for the District
of Columbia Circuit.
I first met Judge Silberman during the
political administrator phase of his career. He was
Deputy to Attorney General William Saxby and hired
me to be head of the Office of Legal Counsel in the
darkest and most besieged days of the American
Presidency.
At that time he had a governmentwide
reputation as a hard-nosed and politically-astute
executive. What many did not know, but what I had
occasion to observe firsthand serving with him in
the Justice Department, was that he had an
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absolutely first-rate analytical legal mind and even
enjoyed thinking about abstract legal questions.
When he came to be appointed to the D.C. Circuit, I
fancy that I was one of the very few who knew not
only that he would be terrific at the job, but that
he would thoroughly enjoy it.
I have not had my law clerks check out
how frequently I have voted the other way from Judge
Silberman (laughter) in cases of his that have come
before the Supreme Court. It cannot be very often,
which I think speaks very well for both of us
(laughter), though some will think precisely the
opposite (laughter).
The one case I do recall, however, and
one which he, in his characteristically tenacious
fashion, occasionally, and I may say unsuccessfully,
seeks to chide me with, involved his insistence upon
adjudicating the meaning of a statute that perhaps
did not exist (laughter), Congress seemingly having
repealed it. Judge Silberman would not consider the
predicate question of whether the statute before him
even existed because the parties had not raised the
issue.
(Laughter.)
This is a true story, you know.
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(Laughter.)
Even that lapse from sweet reason
(laughter) had a certain admirable quality to it,
however, resting as it did upon Judge Silberman's
firm conviction that courts had no business snooping
around where they had not been invited.
(Laughter.)
Over the years, Judge Silberman has been
to me not just a good friend, but a valued advisor.
He was the counsel whom I consulted on matters
legal, ethical, and political during the
confirmation process for both of my judicial
appointments. I trust his legal judgment almost as
much as my own (laughter), and his political
judgment much more so.
His portrait well deserves to be hung in
this Court, and in a few other places around town as
well, not just for his ability, but for his ardor.
There is one thing Larry Silberman has never been.
Even his worst enemy -- I assume just for the sake
of argument that he has enemies -- has never accused
of him of being wishy-washy.
(Laughter.)
And it is that quality of his above all
that I salute today. Larry Silberman is a man who
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has cared deeply and passionately about every
enterprise in which he has been involved, and those
of us who have served with him will never forget the
inspiration he has provided.
(Applause.)
JUDGE GINSBURG: Thank you, Justice
Scalia.
I know from Larry's own mouth that his
enemies are well chosen. He said Marshall Tito did
not like him.
(Laughter.)
But that was only because Larry spoke
the truth.
(Laughter.)
Our next speaker is Justice Clarence
Thomas. Justice Thomas served on this Court in 1990
and 1991, when he was nominated to the Supreme
Court. As you can tell, we have quite a
distinguished group of alumni here.
We are very pleased to have you back
with us today, Clarence.
JUSTICE THOMAS: Chief Judge Ginsburg,
members of the Court, Silberman family, Ricky,
friends, law clerks, colleagues, I am honored to be
here on this wonderful occasion to honor my friend
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and colleague, Judge Larry Silberman, and I am
pleased to see so many of his colleagues, present
and former, here today, including my present
colleagues Justice Scalia and Justices Ginsburg and
Breyer.
Judge Silberman had the earliest and
deepest influence on me as a judge. During my alltoo-brief
tenure here at the District of Columbia
Circuit, he was always there with words of advice
and counsel, never pushing or insisting, just always
available.
When I came to this Court in March of
1990, he offered me only one piece of unsolicited
advice. He advised that, before I consider any
case, I should determine what my role as a judge is
in that case. That advice has been the centerpiece
of my tenure on the bench.
Although I came to know Judge Silberman
professionally when we both served as judges on this
Court, I have never forgotten that he was also a man
of many achievements. His calling as a judge came
only after he had already led a career that most
would have rightfully considered full.
He started his career in public service
as an appellate attorney with the National Labor
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Relations Board. It is there, no doubt, that Judge
Silberman first learned to love the administrative
state.
(Laughter.)
He then moved to the Labor Department,
becoming Solicitor, and then Under Secretary. Then
at the ripe old age of 39, and looking much as he
does today (laughter), Judge Silberman became Deputy
Attorney General, taking the helm of a Department
reeling from the unfolding Watergate investigation.
In this position, he helped restore the Nation's
confidence in the Justice Department. We can only
imagine what might have happened to that Department
and the rule of law if a man of lesser abilities or
possessing insufficient virtues had assumed that job
at such a critical time.
Judge Silberman's career in the law was
paralleled by an active role in foreign affairs and
national security. After his service as Deputy
Attorney General, Judge Silberman served as
Ambassador to Yugoslavia, then seen as one of the
most important embassy assignments.
He advised the Reagan campaign on
foreign affairs and he served during the first
Reagan Administration on the General Advisory
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Committee on Arms Control and Disarmament.
Throughout it all, Judge Silberman was a forceful
voice on editorial pages of our national newspapers
and in journals urging a tougher policy toward the
Soviet Union and its allies. It is fair to say that
Judge Silberman was one of the key thinkers who
contributed to the Reagan Administration's policies
that produced the Nation's triumph over
international communism and the end of the Cold War.
Even as Judge Silberman helped restore
the rule of law at home, he was also helping to
create the conditions for its spread abroad. Judge
Silberman's experiences as a public servant, when
combined with his fine grasp of the law, made him
one of the Nation's leading figures on the Federal
bench. His opinions demonstrate an understanding of
the actual workings of government and a keen
analytical mind. I would like to mention just two
such opinions, one from his early years on the
bench, one from the later years.
In In Re: Sealed Case, Judge Silberman
wrote that the independent counsel law violated the
Constitution by interfering with the President's
executive powers and the delicate balance created by
the separation of powers. As a former Deputy
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Attorney General, perhaps no one at the time
understood better than he the inherent dangers posed
when the prosecutorial function is unaccountable to
the political process. Unfortunately, the Supreme
Court disagreed with him in Morrison v. Olson.
More recently, in Campbell v. Clinton,
Judge Silberman wrote that a lawsuit brought by
Members of Congress challenging the
constitutionality of the war in Kosovo was nonjusticiable.
Observing that Congress had many ways
to stop executive war-making, Judge Silberman
observed that the Federal Courts had no role in
adjudicating a struggle between the branches over
war and foreign policy.
As a former Ambassador and foreign
policy advisor, he understood that the political
branches must have flexibility, whether in
cooperation or in conflict, to manage foreign policy
and protect the national security.
It is popular these days to celebrate
the men and women, and rightfully so, who fought
World War II as the "greatest generation." But, I
think we should also consider ourselves fortunate
that during the Cold War men and women such as Larry
Silberman led our Nation and stood against evil.
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Confronted by a powerful enemy armed
with nuclear weapons and bent upon world domination,
they fought a war no less dangerous than World War
II, yet one that demanded at least as much patience,
endurance, and caution. They ensured that our
Nation would endure while simultaneously preserving
our fundamental liberties and freedoms. Our leaders
today have much to learn from Judge Silberman's
example, as they now confront an altogether
different, yet equally dangerous, enemy.
I now end where I could have just as
easily begun. Many in this room came to know Judge
Silberman in his current role as a judge or in one
of his many official positions, but I first met him
as the husband of Ricky Silberman (laughter), who is
no doubt the best part of his full and distinguished
life. If ever there was a marriage, indeed a
romance, in which two became one, it is theirs.
I first met Ricky Silberman in December
1980 and worked with her on a book recording our
efforts to promote alternative ways of thinking
about matters of race. Though the effort to
encourage more diversity of thought was doomed to
fail, providence would see to it that our friendship
was permanent.
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Ricky Silberman began her tenure as Vice
Chairman of EEOC almost 20 years ago, shortly after
I began my tenure as Chairman. I have few memories
of my own tenure there at EEOC without her at my
side, and certainly no good ones that do not include
her.
It was Ricky Silberman who counseled me
to talk to Judge Silberman when it was suggested
that I consider becoming a judge, a suggestion that
I viewed as slightly better than ludicrous. For
this advice and counsel, I am deeply indebted to
them, to both of them, and, I might add, I am also
indebted because of them.
In the good times they always invited me
to celebrate in their home, and in the bad times,
the dark days, they also gave my wife and me refuge
there in their home and in their hearts.
This beautiful portrait honors two lives
that have been lived as one, and this is a good
thing.
(Applause.)
JUDGE GINSBURG: Thank you, Justice
Thomas.
I would like now to welcome another
esteemed former colleague, the Honorable Patricia
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Wald. Judge Wald served on this Court from 1979 to
1999 and served as Chief Judge from 1986 to 1991.
Since leaving the D.C. Circuit, Judge Wald has
served as a member of the International Criminal
Tribunal for the Former Yugoslavia.
Judge Wald.
JUDGE WALD: Chief Judge Ginsburg,
members of my old Court, distinguished Justices,
distinguished guests, and especially Ricky and
members of the Silberman family, I am happy, indeed,
to be back inside this hallowed courtroom, albeit on
a different side of the bench and for such a fine
occasion as the unveiling of Judge Silberman.
After three years away, I realize more
clearly what a good life it was and is. There is no
scrambling for clients or funding. Your colleagues
forever keep you on your toes. The support staff is
fabulous, and no one, even your grammar school class
agent, can ask you to raise money.
(Laughter.)
Of course, judges do have their
differences about what the law is, and especially
about what those translucid 5-to-4 decisions of the
Supreme Court say it is (laughter), about where to
look for guidance -- to the legislative history, so
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immaculately drafted by anonymous lobbyists
(laughter), or to the inimitable words penned by
Alexander Hamilton to James Madison on a stagecoach
ride from Philadelphia to New York (laughter), about
the intended or unintended consequences of our
actions on consumers, investors, criminals, and that
rare figure that occasionally crosses our path, the
ordinary man or woman in the street.
Now Harry Edwards has written that these
"differences are less frequent and not so deep as
the press and scholars make them out." I'm a little
less sure of that, but I do believe that we have the
best chance of getting it right, or nearly so, when
the colleagues are smart, hard-working, reasonably
tolerant, or maybe not unreasonably intolerant, of
each other's views (laughter), and intent themselves
on producing what Justice Holmes called a "firstrate
piece of work."
Larry Silberman and I served together on
the Court for nearly 15 years. I would be less than
candid if I said the background music was always
melodious.
(Laughter.)
Being on a Court is somewhat like a
marriage, covering an emotional continuum from utter
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boredom to unutterable intensity.
(Laughter.)
With apologies to Judge Bork and Diane
Rehm, it might be characterized as, quote, "lurching
toward commitment" (laughter) -- commitment to a
common vision of fairness and justice.
Now Larry and I started out from
distinctly different vantage points, but I harbored
a certain clandestine admiration for his legal
skills, and I think he occasionally reciprocated.
(Laughter.)
Larry's work was always comprehensive,
he wrote stylishly, and his analyses and critiques
cut quickly to the heart of the matter, not
infrequently to the jugular.
(Laughter.)
When we disagreed, it was usually on
essence and not on cosmetics.
As the years went on, I guess it could
be said that we both mellowed, avoided unnecessary
collisions, and even looked conspicuously for areas
where we could agree, and, surprisingly, there were
a good number. That, of course, is what good
appellate judging is about, the unfettered exchange
of strong views on important subjects that political
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considerations in the legislature or timidity in the
executive sometimes make so difficult.
Every once in a while -- sorry, Larry --
he almost seemed like a soft touch.
(Laughter.)
In the last years before I left the
Court, Larry and I in the mornings held a sort of
mini-salon in Nancy Padgett's Law Library. He would
read The Washington Times at home, and The
Washington Post, New York Times, and Wall Street
Journal when he got to the office. I would read The
Washington Post at home and the others at work.
Then we would have a symposium on the day's affairs.
To be truthful, I miss those times.
Larry is funny. His wit can be acerbic, but often
he turns it on himself, and when he turns on the
charm, he can be almost irresistible -- almost.
(Laughter.)
And we did find more than a few
commonalities. The Walds bought a cabin in the
woods of West Virginia from the Silbermans, where
Larry, before he retreated back to the city, had
considerately installed a towering TV antenna that
brought in the Redskins on Sundays.
(Laughter.)
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Against all likelihood, two of our
clerks carried on a romantic courtship that
eventuated in marriage and a couple of kids, of what
ultimate political persuasion I wouldn't even hazard
a guess.
(Laughter.)
Neither of us ever claimed to have
converted the other, but we did work out a pretty
good bilateral entente. It didn't revolutionize the
Republic, but it certainly added spice to life on
this great Court.
Congratulations.
(Applause.)
JUDGE GINSBURG: Thank you very much,
Judge Wald.
John Manning is the Michael I. Sovern
Professor of Law at Columbia Law School and our next
speaker. Professor Manning first met Judge
Silberman in 1985, when then Mr. Manning was
clerking for Judge Robert Bork, and they have
remained great friends ever since.
John.
MR. MANNING: Thank you, Judge Ginsburg.
Members of the Court, Judge and Mrs. Silberman, the
Silberman family, and distinguished guests, it's
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wonderful to be here to celebrate this moment with
the Judge and Mrs. Silberman.
Because I teach administrative law and
Federal Courts, the temptation for me is to speak at
length about Judge Silberman's many contributions to
my field. Were I to do so, I would note that Judge
Silberman has been almost unique in his devotion to
the philosophy of judicial restraint. No one has
been more faithful to the idea that a judge must
keep in the very front, and not the back, of his or
her mind that appropriate role of the judiciary.
This philosophy expresses itself in
Judge Silberman's opinions, in a relentless focus
not only on big questions like standing and
justiciability, but also on small questions that
often get swept under the rug, like whether an issue
is, in fact, properly before the Court to decide.
(Laughter.)
Judge Silberman's discipline and insight
in policing the properly limited role of the Federal
Courts leaves quite an important and influential
legacy, one that I know he will continue to build in
his seniority.
But that's not what I am here for.
That's not what I am here to talk about. Rather, I
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am here to speak about the many young and formerly
young Washington lawyers who are fortunate enough to
count Judge Silberman as a friend and mentor. Now
this is a very large group. Its core is his law
clerks, but there is a broader group of which I am a
part, the non-clerk clerks.
Now some of us, like me, got to know the
Judge when they clerked on the D.C. Circuit and he
came into other chambers to shmooze with their
judges. Some of us met him I'm not sure quite how,
maybe through his law clerks or through his friends.
But we are a large and diverse group of men and
women. We are Republicans and we are Democrats, but
the one thing that we have in common is that we rely
on the Judge as our rabbi, our confessor, and our
friend. His advice to us is invaluable, and,
indeed, the only time we disregard Judge Silberman's
advice is when Mrs. Silberman countermands it.
(Laughter.)
So what has this got to do with Judge
Silberman's legacy Just this: Judge Silberman has
tried to instill in a generation of Washington
lawyers a sense of honor, to make us gentlemen and
gentlewomen. Now what exactly does this mean
Well, even though Judge Silberman is the
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Federal Judge about the least likely to make law, I
will now attempt to describe a restatement of what
might be called "Silberman's laws."
(Laughter.)
First, be loyal. Don't bad mouth the
people you work for. If you don't respect someone,
don't take a job from that person, as simple as
that.
Second, be modest. Make others look
good rather than yourself. Don't claim credit for
things you've accomplished even if you deserve it.
Third, be discrete. Hold close your own
confidences and, of course, the confidences of
others. Discretion is not only good for reputation,
but also good for your soul.
Fourth, be honest. Tell nothing but the
truth even when the truth redounds to your
detriment.
And, fifth, and most importantly, act
with integrity. Your principles are not matters of
convenience. They are tested only when it hurts.
It is too hard and too confusing to strategize about
where your personal advantage lies. So just do
what's right. In the end, your integrity is the one
thing that no one can take away from you.
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These values may seem self-evident, even
obvious, but they are too often fragile when
confronted with the exigencies of the moment. By
his counsel and his conduct, Judge Silberman has
taught countless young lawyers that honor is not
negotiable.
Judge, we will try to live by these
values, and we will try to pass them on to others.
We will always be grateful to you and to Mrs.
Silberman for teaching us the meaning of honor by
your example. Thank you very much.
(Applause.)
JUDGE GINSBURG: Thank you, Professor
Manning.
I would now like to introduce Eugenie N.
Barton, who served first as an intern in Judge
Silberman's chambers in 1988 and then as his law
clerk during the 1990 to 1991 term. Ms. Barton is
currently counsel to the Wireless Policy Division of
the Federal Communications Commission.
Welcome back.
MS. BARTON: Thank you. Judge Ginsburg,
may it please the Court, Judge Silberman, Mrs.
Silberman, and my fellow clerks, it is my privilege
to speak today as a member of a very special family,
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the family of the Judge's clerks. The Judge has
cared for us as a family, not only during our
clerkships, but as we have matured as lawyers and as
we have become parents ourselves. The Judge has
taken great interest in the safe delivery and
subsequent progress of his clerks' offsprings, whom
he calls his "grand-clerks."
(Laughter.)
It is now my pleasure to assist at
another delivery, the delivery of the Judge's
portrait to its place of honor in this Court. Of
course, like all clerks, I have my own favorite
memory, a story that distills for me the essential
qualities of the Judge both on and off the bench.
The incident occurred during the last
set of oral arguments of my clerkship. All was
going smoothly, the attorney seemed to be doing
quite well before the judges, when suddenly he said,
"This is really a simple case. No one has been hurt
here. No one has been harmed by this action."
I saw the Judge stiffen; his
constitutional antenna went up.
(Laughter.)
He said, "I was inclined to favor your
position, but now I begin to wonder how, if there is
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no injury, you have standing to bring this case
before the Court."
(Laughter.)
We watched as the startled attorney
turned white, stuttered, and then began to sway.
His knees buckled and he went down in a dead faint.
(Laughter.)
As the attorney went down, the Judge
leapt from the bench, his robe streaming behind him.
"Call 911. Get an ambulance," he said, as he bent
over the prostrate form.
(Laughter.)
As the man stirred, the Judge made sure
that he was all right. Imagine the attorney’s
embarrassment at looking up to see Judge Silberman.
(Laughter.)
After a brief pause, oral argument
continued as the attorney found his standing both
literally and constitutionally.
(Laughter.)
For me, this incident symbolizes the
character of Judge Silberman on and off the bench.
On the bench he is conservative in the deepest
sense, conserving the role of the judicial branch to
determine real cases or controversies in which the
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litigants have suffered a legal injury. But off the
bench the Judge acts and will go generously to the
aid of any fellow who is down.
As a clerk, I was fortunate to share
with the Judge an interest in Shakespeare and a
belief in the primacy of Shakespeare's text. The
law was not my first career. Before going to law
school, I had been a Shakespeare scholar and
dramaturg with the Shakespeare Theater, but I was
out of step with the times because my interest in
the meaning of Shakespeare's text was no longer the
focus of the Shakespeare industry. Academics now
wrote about Shakespeare and whatever critical "ism"
served their own ends. The director's concept in
the theater often replaced Shakespeare's. Judge
Silberman had no patience with that approach to
Shakespeare.(Laughter.)
And he fought against and taught against
the analogous misappropriation of meaning in the
law. Judge Silberman was a teacher's teacher, my
teacher. He was the master at reading the plain
meaning of the words, of interpreting them in the
historical context of past decisions, and with due
regard to the constitutional roles of each branch of
government in determining meaning.
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I would like to conclude my remarks by
quoting an excerpt from one of the Judge's favorite
speeches from Shakespeare, Henry the Fifth's speech
to his outnumbered troops as they prepare for the
battle of Agincourt. This, the St. Crispian's Day
speech, is a speech about boldness and bravery,
about history and personal memory, about courage in
the face of tremendous odds. It is also a speech
about the rewards of doing one's duty. The king
musters his troops thus:
This day is called the feast of Crispian:
He that outlives this day, and comes safe home,
Will stand a tip-toe when the day is named,
And rouse him at the name of Crispian.
He that shall live this day, and see old age,
Will yearly on the vigil feast his neighbors,
And say 'To-morrow is Saint Crispian:'
Then will he strip his sleeve and show his scars.
And say 'These wounds I had on Crispin's day.'
Old men forget: yet all shall be forgot,
But he'll remember with advantages
What feats he did that day: then shall our names.
Familiar in his mouth as household words
Harry the king, Bedford and Exeter,
Warwick and Talbot, Salisbury and Gloucester,
Be in their flowing cups freshly remember'd.
This story shall the good man teach his son;
And Crispin Crispian shall ne'er go by,
From this day to the ending of the world,
But we in it shall be remember'd;
We few, we happy few, we band of brothers;
For he to-day that sheds his blood with me
Shall be my brother; be he ne'er so vile,
This day shall gentle his condition:
And gentlemen in England now a-bed
Shall think themselves accursed they were not here,
And hold their manhoods cheap whiles any speaks
That fought with us upon Saint Crispin's day.
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I think it is no accident that Judge
Silberman loves this speech, and I think it is a
fitting speech for this special day. It reminds
us about the special place in history that belongs
to those who serve their country with bravery and
honor, with no thought of the personal sacrifice
they make in that service.
It is the speech of a leader who
inspires others to harken to the call of service
to his country. These are the values that the
Judge has instilled in his clerks by his example
and his teaching.
In the Crispian's Day speech,
Shakespeare imagines the reunions in future years
of the happy few, the band of brothers who served
under Henry. We, too, as Judge Silberman's
clerks, each have special memories of our time
with the Judge. We share in a special bond of
fellowship that is part of Judge Silberman's
legacy. Judge Silberman is a lawyer's lawyer, a
judge's judge, and in my case a teacher's teacher.
The Judge took his job as a teacher
seriously. He shaped his clerks into better
lawyers, tougher thinkers, and upright men and
women. He taught us to argue vigorously for our
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views and to change them if we saw that they were
wrong.
We learned from the Judge's example
to step up to our own personal and professional
challenges. He taught us to do our duty.
As I look around me today, I see many
of my fellow clerks who are devoting their days
and nights to serving their country and upholding
its laws in very difficult times. I see others
whose primary job is dedication to their families.
They are all following the example Judge Silberman
set, the example of an honest and forthright man
who has done his duty as he has seen it.
As a judge, he has understood and
upheld the Founders' view of the proper
distribution of power and the limits of law. He
has upheld these limits so vigorously, I think,
because, like Shakespeare's Henry, the Judge knows
and understands the tough realities of politics
and power and the necessity of holding the rule of
law as a check to those forces.
In the Crispian's Day speech,
Shakespeare celebrated a great man and a great
moment, and the power of artists to create a
memory that will resonate as their legacy. It is
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fitting to dedicate Shakespeare's speech to the
Judge and to this portrait ceremony. The artist
who has given us Judge Silberman's portrait has
provided us with a lasting image to remind us of
the man and the values he has passed on in his
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life and his work.
They are his legacy to us.
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That legacy will resonate in our memory and the
memories of those who will come after us. Thank
you.
(Applause.)
JUDGE GINSBURG: Thank you, Ms.
Barton.
Our next speaker is Stuart Levey,
another of Judge Silberman's law clerks. Mr.
Levey, who served during the 1989 to 1990 term, is
currently Associate Deputy Attorney General of the
United States. He will present the portrait,
which will be unveiled by Mrs. Silberman.
Mr. Levey.
MR. LEVEY: Chief Judge Ginsburg,
Judge Silberman, Mrs. Silberman, distinguished
guests, former clerks, it is a pleasure and an
honor to be part of this ceremony.
I will not presume to add to the
remarks that we have already heard from Justice
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Scalia and Justice Thomas, Judge Wald, John
Manning, Genie Barton about the Judge's career and
public service, his greatness as a judge, his
impact on the law, and his judicial philosophy.
They have all certainly expressed those sentiments
more eloquently and authoritatively than I could.
I'm also not really equipped as Genie
is to add to the cultural sophistication of this
event.
(Laughter.)
In fact, her literary references make
me cringe with embarrassment as I recall one
incident from my clerkship. One day I was coming
back from lunch with the Judge and we were riding
up the elevator, and he told me he was really
excited because he and Mrs. Silberman were going
to "Aida" that night. I promptly asked him, "Oh,
Judge, is that a new restaurant"
(Laughter.)
That question, of course, delighted
the Judge because it let him launch into one of
his favorite topics, which was the inferiority of
my education compared to a Dartmouth education.
(Laughter.)
So I am going to stay modest here and
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just talk about what I am qualified to talk about,
which is what my relationship with the Judge has
meant to me. While it is presumptuous to speak
for a group of law clerks as distinguished as the
Judge's, I really believe that my feelings on this
topic are representative of the group.
For all the reasons you have already
heard, Judge Silberman is, without a doubt, the
finest professional mentor a new lawyer could ever
imagine. He imbues his clerks with respect and
enthusiasm for the law. He approached literally
every case with this infectious excitement about
trying to figure out the right answer and, equally
important, why that answer was right.
We all had this experience of
discussing and arguing, and sometimes even
yelling, with him in his chambers about how the
cases should be decided and why. As John
Manning's comments probably indicate, that
discussion was sometimes especially animated when
it concerned the possibility of not actually
reaching the merits of the case.
(Laughter.)
The Judge truly does believe in
judicial restraint and has imbued us all with a
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keen sense of what the proper role of the Court
is. In fact, his commitment is so strong that it
is rumored that he would buy lunch for any clerk
who persuaded him that the Court didn't have
jurisdiction for a reason not argued by the
parties.
(Laughter.)
I don't know if that's actually true.
It didn't occur during my year.
(Laughter.)
But it was precisely that interaction
in chambers that made the experience so
transforming for me. As I think Judge Wald's
comments indicated, it probably won't surprise you
to learn that in chambers he was equally blunt,
honest, and unfiltered.
(Laughter.)
I remember when I was first hired he
told me, "Stuart, as my law clerk, I expect you to
act as my lawyer, and I want you to tell me right
away if you think that I'm wrong about something."
And I think he really meant it, but in practice
what actually happened -- (laughter) -- was that
he certainly didn't hesitate to tell me when I was
wrong about something.
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(Laughter.)
And, ironically, that, in all
seriousness, was the best part of the job. The
Judge was willing to criticize me at least; I
won't speak for my co-clerks. He was willing to
criticize me, and so, therefore, you knew that
when he gave you positive feedback, it actually
meant something.
Most of all, you could tell just by
being with him that he cared not only about
getting the right answers in the cases, but about
turning us into better lawyers.
I knew even at the time how lucky I
was to have that experience. What I didn't
realize was that, while I would act as his lawyer
for one year, he would act as my lawyer for the
rest of my career.
The effort that the Judge puts into
his relationship with his law clerks and former
law clerks and “non-clerk clerks” is one of his
most remarkable qualities. He has more than 50
law clerks and many more adopted clerks, some of
whom are here. There are many, many different
personalities among the group. Yet, he has
managed to create and maintain a strong bond with
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virtually all of us.
It's been 12 years since I've clerked
for the Judge, and I cannot remember a single time
when he was too busy to take my call or to meet
with me. What's even more amazing is that never
once, after seeking his guidance, did I have a
feeling that by reaching out to him I had burdened
him in any way. In fact, quite the opposite.
There have even been times when the Judge has been
worried about me, and he has reached out to me to
see if there was anything he could do to help.
I think that all of us who clerked
for Judge Silberman or who have been touched by
him feel that he has given so much more to us,
both during our clerkships and after, than we
could ever give to him. That's why we're all so
pleased to be part of this ceremony and to present
this portrait in his honor.
I am told I am supposed to introduce
Ricky Silberman, but after the beautiful comments
that Justice Thomas made on that topic, I don't
think there's anything more to say other than to
turn over the ceremony to Mrs. Silberman for the
unveiling. Thank you.
(Applause.)
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MRS. SILBERMAN: Thank you, Stuart,
and particularly to all of the clerk family for
giving me the honor of unveiling this splendid
portrait, which you today present to the Court.
I do so on behalf of the Silberman,
Balaban, and Otis family who proudly sit in the
front row. It's a wonderful day for all of us.
To have so many people here who have meant so much
in our lives, my heart is very full.
Listening to the friends and
colleagues and clerks brought back lots of
memories. Genie's St. Crispian's Day speech has
special meaning since Larry took me to see the
play 47 years ago on our second date.
(Laughter.)
And he does love it; you're
absolutely right.
But I also thought about another
quote from the Bard which I have over the years
tried, albeit not always successfully, to get him
to think about, and that is the words from Henry
the Fourth, Part 1, "the better part of valor is
discretion."
(Laughter.)
But, as I look back over the years, I
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realize that, had I been able to censor him and to
change him and to filter him when I wanted to, he
would not have been the man that I have loved for
47 years whose true valor, if not discretion,
whose devotion to principle, whose loyalty, humor,
steadfastness, and capacity for love have been so
wonderfully captured by Peter Egeli, as you will
now see.
It is just an extraordinary portrait,
and I want to thank Peter as I go over to unveil
it. Thank you all.
(Applause.)
JUDGE GINSBURG: On behalf of the
United States Court of Appeals for the District of
Columbia Circuit, I would like to thank all of
Judge Silberman's clerks for the gift of this
magnificent portrait, which we gratefully accept
and which will hold a place of prominence in our
courtroom downstairs for many, many years.
When I first came on the Court 16
years ago, Larry was the only judge that I knew
other than Judge McGowan, for whom I had clerked.
I got some advice from him very early on. He
said, “About this opinion-writing business,
remember that the only people who read our
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opinions are the winning lawyer, the losing
lawyer, and the winning lawyer's mother.”
(Laughter.)
Yet, his opinions seemed to be
crafted with the utmost care and skill. About 10
years later he told me that he wrote them on a
yellow pad by hand, which explains much of it, but
I wasn't sure how literally to take that since he
also said he used a quill pen.
(Laughter.)
As Mr. Levey said, Judge Silberman
has taken an interest in every case, finds every
case challenging, interesting, and worth getting
to the bottom of. I think that's what has made
him such a wonderful colleague.
Judge Silberman, if you would like to
share some reflections with your friends and
colleagues, we'll give you two minutes.
(Laughter.)
(Applause.)
JUDGE SILBERMAN: Members of the
Court, Chief Judge Ginsburg, friends from the
Supreme Court, all four of them who came down -- I
appreciate it no end -- Nino, Clarence, and Pat,
my ex-colleagues who spoke, they are all three
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dear friends.
Nino is my oldest friend in town. We
go back a long way. It was he that actually
talked me into becoming a judge. I returned the
honor by talking Clarence into becoming a judge.
(Laughter.)
So, Nino, you are responsible for two
of us.
Pat, I was thinking about our
relationship on the Court, which has come to mean
so much to me. It is interesting that you said
something that I was prepared to say about us. We
never disagreed about anything petty or small.
There is not a petty bone in your body. I miss
you terribly, just as I don't miss Nino because,
when he left, I became more senior.
(Laughter.)
When Clarence left, I got his
furniture.
(Laughter.)
John, Genie, and Stuart, I can't
imagine looking in the mirror and finding a more
wonderful picture even if it were not totally
accurate.
(Laughter.)
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I'm enormously appreciative.
When I was a banker 20 years ago, I
was amused by the legal term non-bank bank, which
has been alluded to by several speakers. To
borrow that convention today, today could be
described as a non-funeral funeral.
(Laughter.)
Everyone lies about the protagonist.
(Laughter.)
I'm grateful to all of you who have
come to witness this hanging.
(Laughter.)
You have seen the portrait. I,
frankly, dreaded sitting for hours without an
opportunity to cross examine counsel.
(Laughter.)
But it turned out to be a delightful
experience because Peter Egeli is so interesting.
He doesn't fit the expected profile of an artist.
He is an ex-Marine who loves hunting, fishing, and
boating. He, too, along with his lovely wife Stu,
recently bought a trawler. We had a lot to talk
about. It was he who gave me advice as to how to
navigate through Woods Hole last summer.
(Laughter.)
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I am particularly pleased that many
of my friends brought their spouses. If I do not
mention the spouses, even if they are also
friends, it is only because our time is limited.
This gathering included Bob Segal, my
oldest friend, going back to first grade. He went
to Harvard Law School ahead of me, and recently
stepped down as Chairman of a large Philadelphia
law firm. He was bigger than I was, and once when
we were kids he tried to strangle me.
(Laughter.)
He claimed he was provoked because I
hit him in the mouth with a stick, and he offers
to show the scar to prove it.
(Laughter.)
If it's true, my defense is that I
had not yet read Machiavelli.
(Laughter.)
Also here from out of town are my
Dartmouth contemporaries, Bill Tell and Tom
Schwarz, and a number of my law school classmates
from Washington, including another Federal Appeals
Court Judge, Tim Dyk, as well, of course, as my
colleague, Judge Williams, who is also a
classmate.
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Speaking of judges, I am pleased that
Chief Judge Wilkinson from the Fourth Circuit
seized once more the opportunity to rub shoulders
with Washingtonians.
(Laughter.)
Judge Plager of the Federal Circuit,
a colleague of Tim Dyk's, braved cross-town
traffic to come over, and Bill Lewis came down
from Connecticut without Redskins game tickets.
Welcome is the contingent from
Georgetown Law School, where I have taught for 15
years, led by Dean Judy Areen, including three of
my past teaching partners, Sally Katzen, Paul
Cappuccio, and Chris Landau.
There are a number of people here who
I served with in past Administrations, too many to
mention, but I am delighted to see them. I should
acknowledge four who I had the honor of swearing
in: Don Rumsfeld, who was here earlier and had to
leave but left his lovely wife, from the present
Defense Department; Frank Carlucci from a past
Defense Department; Bill Barr and Ted Olson from
past and present Justice Departments.
Most of you will recall that
wonderful dialog from "Harry Met Sally" when Harry
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explains that a man can't have a real friendship
with a woman because lust gets in the way. It is
similarly hard for anyone who has served in the
executive branch, particularly after going through
six confirmations, to have a true friendship with
a Senator or ex-Senator.
(Laughter.)
Homicidal rage gets in the way.
(Laughter.)
Nevertheless, both Governor Pete
Wilson and Ambassador Bill Brock are here, close
friends, perhaps because they went on to prominent
executive branch posts and scrubbed off the Senate
patina.
(Laughter.)
Besides ex-law partners, there are a
number of other Washington lawyers who apparently
did not dare to pass on the invitation.
(Laughter.)
They are, of course, welcome, as well
as all my non-lawyer friends, including neighbors
and fellow boaters. There remains my family, my
colleagues, and my clerks.
I wish to acknowledge my son Bob and
daughter-in-law Christina, my older daughter Kate
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and her husband Mike Balaban, my younger daughter
Annie and her husband Nathaniel Otis. I am very
proud of all three of my children in part for
their accomplishments; more importantly, for their
choice of spouses, and most of all for their coproduction
of my eight grandchildren:
(Laughter.)
Katie Rose, Christopher, Rob, and
Jack Silberman; Jack, Hank, and Joey Balaban; and
the newest entry, Charlotte Otis.
That brings me to my wife Ricky. The
cliche, of course, that male honorees always say
is that everything that I have done or become I
owe to my wife. I always thought the proper
response from a wife should be, "If it were
entirely in my hands, you would have done much
better."
(Laughter.)
I owe Ricky a good deal more than the
cliche suggests. She gave me a life, a happy
life. I think the portrait reflects that.
When I met her at a Harvard dance in
the summer of 1955, I was introduced to her and
danced with her once and came back to the three
roommates who introduced me to her and told them I
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was going to marry her. They were astonished.
She doesn't really believe it. I'm still
astonished. But the explanation is that I have
been in love with her for almost 50 years because
I was in love with the idea of her before I met
her.
As some of you know who have heard me
muse on the subject, I have been somewhat
ambivalent about being a judge. That is so
because for a long time I have been troubled about
the overlegalization of American society, and
sometimes wonder at the value of my efforts.
Still, I have loved the actual work and have been
fortunate to have had the colleagues on this Court
that I have had, men and women of enormous talent
and great dedication.
The best part, however, of being a
Federal Appellate Judge has been the opportunity
to have spent time with a parade of
extraordinarily talented young men and women who
have shared my chambers, my work, and my thoughts.
It is they who are responsible for this gift to
the Court and for this ceremony. It is as big a
thrill as I ever had or ever will experience.
I wish I had the time to talk about
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all 48 of them. I can remember, virtually can
remember, every single one of their contributions
on every case. Even more clearly, I remember our
luncheons and our lunch conversations, often over
a glass of Chianti at AV's, sometimes with my
secretary Christine drinking too much Chianti.
(Laughter.)
I am grateful that almost always they
became friends with each other. I was once asked
why that happened. The answer is they had a
common enemy.
(Laughter.)
Nevertheless, most of them have
stayed close and have done me the great honor to
have occasionally consulted me about their career
and personal decisions. They have done
extraordinarily well, and of that I am also very
proud.
Thank you.
(Applause.)
JUDGE GINSBURG: Thank you, Judge
Silberman, for 17 years of service on this Court,
for your friendship and colleagueship, and for the
17 more years you've promised us as a Senior
Judge.
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(Laughter.)
For those of you who couldn't see,
Judge Silberman's remarks were, in fact, written
out by hand on a pad.
(Laughter.)
In a moment the Court will be in
recess, and the members of the Court sitting on
the bench will then come down to greet the family
and view the portrait. During that time we ask
that all guests immediately proceed to the
reception on the fifth floor, and not enter the
well of the Court. The Silberman family will be
at the reception in just a moment.
We thank you again for joining us on
this happy occasion, and we look forward to seeing
you shortly at the reception.
We stand adjourned.
(Whereupon, the proceedings were
concluded at 5:07 p.m.)
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