It’s not often you feel bad for federal clerks (I mean, it happens). They’ve basically won one of the great prestige-offs of the legal industry. And when their time learning the profession at the robes of their judge — or not learning it, as the case may be — is over, they can write their ticket to any one of a number of excellent post-clerkship careers. All of which is particularly true if you manage to land a clerkship at the D.C. Circuit, which even in the land of elite clerkships is a goddamned gold star.
But, that doesn’t mean you don’t have to deal with some bullshit. Like, perhaps, when Judge Laurence Silberman decides to email the entire circuit his thoughts about how awful it is that people want to change the names of Confederate monuments. Yup. That really happened.
As reported by The Intercept, on Sunday, Judge Silberman decided to unload his thoughts on Elizabeth Warren’s amendment to the National Defense Authorization Act to strip the names of Confederates from military assets. Yeah, the Reagan appointee is not pleased that in 2020 we are finally having the conversation about removing the names of the losers of the Civil War from military bases and monuments. As he wrote in an email to the entire circuit:
“Since I am about to be interviewed I thought it would be appropriate to unburden myself in opposition to the madness proposed by Senator Warren: the desecration of Confederate graves,” Silberman wrote.
The interview Silberman referenced was part of a series of chats judges do, open only to court staff. Silberman went on to explain that his great-grandfather had fought for the Union as part of Ulysses S. Grant’s army and was badly wounded at Shiloh, Tennessee. His great-grandfather’s brother, meanwhile, joined the Confederate States Army and was captured at Gettysburg, Pennsylvania. “It’s important to remember that Lincoln did not fight the war to free the Slaves Indeed he was willing to put up with slavery if the Confederate States Returned,” he wrote (lack of punctuation and errant capitalization in the original, and throughout). “My great great grandfather Never owned slaves as best I can tell.”
There’s an awful lot to unpack in this wildly inappropriate missive, but why listen to ‘lil old me when an actual D.C. Circuit clerk did all the work of calling him out? That’s right, no one responded to Judge Silberman’s email for a whole day until an unnamed clerk rose to the challenge. Now that takes some guts. And they did it with some real style, as you can read for yourself:
“Hi Judge Silberman,” began the career-risking reply-all email, “I am one of only five black law clerks in this entire circuit. However, the views I express below are solely my own,” they went on. “Since no one in the court’s leadership has responded to your message, I thought I would give it a try.”
“[M]y maternal ancestors were enslaved in Mississippi. While the laws of this nation viewed my ancestors as property, I view them as hostages. In a hostage situation, when someone does something that leads to the freeing of the hostages, I am not sure if the hostages would be concerned as to whether the person that saved them, actually intended to save them. In this instance, as people considered to be property, my ancestors would not have been involved in the philosophical and political debates about Lincoln’s true intentions, or his view on racial equality. For them, and myself, race is not an abstract topic to be debated, so in my view anything that was built to represent white racial superiority, or named after someone who fought to maintain white supremacy (or the Southern economy of slavery), see Photo of Liberty Monument attached, should be removed from high trafficked areas of prominence and placed in museums where they can be part of lessons that put them in context.
“In your message, you talked about your ancestors, one that fought for the confederacy and one that fought for the Union. This seems to be a true example of a house divided. However, it is very clear what the Confederacy stood for. In 1861, at the Virginia secession convention, Henry L. Benning (for whom Fort Benning is named) in explaining the reasoning for Georgia’s decision to secede from the United States stated, “[it] was a conviction … that a separation from the North was the only thing that could prevent the abolition of her slavery…[I]t is probable that the white race, being superior in every respect, may push the other back.” Unfortunately, in this scenario, no matter how bravely your uncle fought for the Confederacy, the foundation of his fight was a decision that he agreed more with the ideals of the Confederacy, than he did with those of the Union. And in the end, he chose the losing side of history.
“Finally, I will note that the current movement to rename Government owned facilities is in line with your previous opinions on the importance of names and what they represent. In 2005, you publicly advocated for the removal of J. Edgar Hoover’s name from the FBI Building due to the problematic material you came across in your review of his FBI files after his death. You equated it to the Defense Department being named for Aaron Burr. In view of your opinion of J. Edgar Hoover’s history and your advocacy for renaming the FBI building because of the prominence it provides Hoover’s legacy, it is very strange that you would be against renaming our military facilities, since the legacy of the Confederacy represents the same thing. This moment of confronting our nation’s racial history is too big to be disregarded based on familial ties.”
That’s just glorious.
Several judges finally weighed in, most thanking the clerk for their words:
“I know it took courage to send such an email — I am grateful you shared your very important voice and views with me,” a circuit court judge replied.
The Intercept also notes another judge “worked to do clean up for Silberman, noting that, while he couldn’t speak for Silberman, perhaps he only meant to refer to the possibility that the legislation may have applied not just to base names, but also to gravesites.” Of course, Warren has already agreed that actual gravesites would not need to be renamed, but it’s a great out and Silberman jumped onto that life preserver:
“Thank you for your thoughtful message,” he wrote the clerk in a reply all, saying the other judge’s interpretation was “absolutely correct; my concern was limited to cemeteries.” Silberman didn’t explain why he needed to suggest the Civil War wasn’t really about slavery if he had such a minor objection. Silberman did not immediately respond to a message left at his chambers.
Once again, the work of correcting white privilege was left to a black person — and someone pretty far down on the circuit’s hierarchy. That’s a problem. When well-meaning white liberals want to know what they can do to dismantle white supremacy, and are told by BIPOC that they need to call out that stuff when they see it, THIS is exactly what they mean.
Listen, this is a fantastic story because this clerk is awesome and called out a Circuit Court judge. But everybody in the circuit — especially Silberman’s fellow judges — had an opportunity to do something important that they frankly missed.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
Jordan Rothman is a partner of 
