Judging Larry

On February 6, President Bush announced the formation of an independent commission that would look at the nation's intelligence capabilities, "especially our intelligence about weapons of mass destruction," he said. Then he added, perhaps a tad defensively given the way things have worked out in Iraq, "The proliferation of weapons of mass destruction poses the most serious of dangers to the peace of the world."

Unfortunately, the person chosen to become co-chair of this all-important commission is a judge named Laurence Silberman from the U.S. Court of Appeals for the District of Columbia Circuit.

"Picking Silberman verges on the brazen," said U.S. Senator Harry Reid of Nevada on the Senate floor February 11. "It's a thumb in the eye to those who are looking for a real investigation."

So who is this "thumb," exactly?

Silberman, 68, served as a member of a Reagan-Bush advisory group in the 1980s and was appointed to the bench by President Reagan in 1985. Now that he's again taken on a prominent role in public life, it's time to examine his past. Here are questions for Silberman that Democrats should be asking -- and demanding the answers to:

1. Is it true that you met with an Iranian envoy in a Washington hotel in 1980
and spoke about a deal to prevent an "October Surprise," which, as
author Gary
Sick describes, would have meant the release of American hostages shortly
before the presidential election? What, specifically did you tell the Iranian
envoy who offered "to ensure President Jimmy Carter's defeat in the
election by arranging to release to [Ronald] Reagan the 52 U.S. hostages being
held in Tehran," as you told a Miami Herald reporter (April 12, 1987)?

2. Why, four years after your meeting with the Iranian envoy, did you decide not to step down from being a judge in the case of Colonel Oliver North, who'd been accused of making a secret deal to free U.S. hostages in Lebanon even though, as the late Lars-Erik Nelson wrote in Newsday (June 14, 1994), a judge "who has personal involvement with the principals in a case should recuse himself"? Why, as Nelson pointed out, did you not tell your colleagues on the bench that you had a possible conflict of interest? And why did independent counsel Lawrence E. Walsh say in his book Firewall: The Iran-Contra Conspiracy and Cover-Up that you were so biased during the oral arguments of North's appeal that you nearly prevented an appellate counsel "from presenting a coherent argument"?

3. Why did you and other officials of Crocker National Bank of San Francisco, where you served as executive vice president from 1979 to 1982, fail to report $3.98 billion in currency deposits from foreign banks, which U.S. Senator Paul Simon described as "laundering" transactions, according to The Washington Post (Oct. 3, 1985), and which resulted in a $2.25 million Treasury Department fine on the bank?

4. Why did you vote to strike down a special prosecutor law in 1988 in Morrison v. Olson lso, which New York Times columnist Anthony Lewis describes as "the most audacious effort in generations to exalt the constitutional power of the president"?

5. What were you referring to when you complained on June 13, 1992, about The Wall Street Journal ("its reporters, not its simpatico editorialists," according to Tony Mauro in American Lawyer, June 22, 1992), The Washington Post, the Los Angeles Times, and The Associated Press? What did you mean when you called Nina Totenberg of National Public Radio the "wicked witch of the airwaves," and when you ripped into The New York Times' Supreme Court reporter, Linda Greenhouse, citing the "Greenhouse effect"?

6. Can you explain why, as David Brock writes in his book Blinded by the Right: The Conscience of an Ex-Conservative, you winkingly ignored judicial ethics when you encouraged Brock to pursue rumors that Bill Clinton used state troopers to procure women for him while he was governor -- and offered advice and moral support while Brock was preparing a scathing book about Anita Hill? And what did you mean when you prefaced your "advice to [Brock] with the wry demurrer that judges shouldn't get involved in politics"? As Brock writes, "'That would be improper,' he'd say -- and then forge ahead anyway." And why did you and your wife, as Brock explains in his book, respond so enthusiastically to some of Brock's writings, "literally squealing with joy about the case [Brock] had constructed implicating [former Senator Paul] Simon, a vocal critic of Silberman's during the judge's own confirmation hearing"? "They were passing the phone to each other," writes Brock, "marveling at my 'genius' at the top of their lungs. 'You got him. You nailed him. You fucked him. You killed him.'"

7. Why did you explode over then-Attorney General Janet Reno's efforts to keep Secret Service agents from testifying before Kenneth Starr's grand jury in July 1998, saying she "sold out her integrity to protect her boss," according to the New York Post (July 18, 1998), and accuse the president of "declaring war" on Starr, the independent counsel, during the Monica Lewinsky scandal? And why did you act as a judge in the case if, as Brock says, you had personal knowledge about the president's affair with Lewinsky?

8. And why, when serving on a three-judge panel in a federal courthouse, did you threaten liberal-minded fellow Judge Abner Mikva with physical violence, shouting, "If you were 10 years younger, I'd punch you out!'" as Michael Winerip writes in The New York Times Magazine (September 6, 1998)?

9. Why did you "accuse William Rehnquist's archconservative Supreme Court of having a secret plan to declare the death penalty unconstitutional" in November 2002, as Adam Cohen writes in The New York Times (Nov. 24, 2002) -- despite the fact that the court had only recently "reiterated its view that capital punishment is constitutional even for 16-year-olds," and that your remarks brought the meeting of the Federalist Society, a conservative group of lawyers and academics, to a "loopy low"?

Come to think of it, "loopy" is actually a good way to describe Silberman. It comes up twice in a Lexis-Nexis search of his name, along with "basically baffling" (Greenhouse, The New York Times) and "churlish" (Neil Lewis, The New York Times). But surely Silberman can clear up these misunderstandings -- by answering these questions.

Find out more about Silberman from the href="http://www.allianceforjustice.org/news_and_press/press_release_collection/collection/press_silberman.html">Alliance for Justice, a national
association of environmental, civil rights, and other organizations.

Tara McKelvey is a Prospect senior editor.