At age 75 Laurence Silberman, a conservative senior judge on the U.S. Court of Appeals for the D.C. Circuit, is maintaining his reputation for blunt talk off the bench.
In a recent speech before a Federalist Society chapter in San Francisco, Silbeman excoriated the media for raising "phony" ethical objections to the recent behavior of Justices Antonin Scalia and Clarence Thomas -- as well as Thomas' wife Virginia -- in relation to conservative causes. As he completed his defense of the justices, Silberman said, "it should be quite obvious that those in the media who criticize Justices Thomas and Scalia for these sorts of alleged ethical lapses are hypocrites."
As reported recently by Ed Whelan at National Review Online, Silberman went on to highlight a "real concern" about the ethics of another justice -- namely, retired justice Sandra Day O'Connor, who came in for criticism for her recent involvement in political debates over judicial selection in Nevada and Iowa. Silberman revealed that when O'Connor, who has come out against judicial elections, invited Iowa's federal judges to an apparently partisan event on the issue last fall, the judges sought advice from the Judicial Conference's Committee on Codes of Conduct. The Committee sent out a letter opinion advising the judges not to attend because of its political nature, and none did attend. (Our efforts to obtain the opinion have been unsuccessful; they are viewed by the committee as confidential.)
In discussing O'Connor, Silberman also attacked coverage of the issue, and in the process won himself a new antagonist: New York University School of Law legal and judicial ethics expert Stephen Gillers. Silberman criticized a Blog of Legal Times item that quoted Gillers, whom Silberman described as “a so-called specialist in judicial ethics.” Gillers saw no problem in O'Connor's involvement in a Nevada referendum on judicial elections. Silberman said the BLT had "rather predictably supported" O'Connor's activities.
Gillers, who has taught the subject for 33 years and authored a leading casebook, took offense at Silberman's characterization. In a letter he posted online at the Legal Ethics Forum blog, Gillers told Silberman, "I am not 'a so-called specialist.' That characterization was unnecessary to your argument in your talk, as well as wrong." Gillers continued, "Certainly, you can criticize my views and ideas, but there is no need to use terms like 'so-called.'"