Let me say a few things by way of an introduction.
At the outset, and what many of you know to be true, I have written a lot of really stupid stuff–prompting more than few to question, “That guy’s a judge?” Let me also make clear that the mad rush to take down statues of historical significance (or rename military bases for that matter[i]), whether we like the history or not, is silly. See Kopf: Shall We Demolish the Monument to Chief Justice John Marshall? Simple Justice (August 30, 2017) (noting that greatest Chief Justice in our nation’s history owned slaves). Thirdly, Judge Silberman, a Senior Judge on the D.C. Circuit, is far too conservative for my tastes.
OK, so what do I write about?
Well, it seems that Judge Silberman was going to be interviewed by his colleague on the D.C. Circuit, Judge Robert L Wilkins, who happens to be black. In particular, Wilkins was set to interview Silberman last Monday as part of a summer series for law clerks and interns.[ii] Prior to the interview, Judge Silberman sent out an e-mail to everyone, staff and judges alike on the D.C. Circuit and the D.C. District Court.
He was annoyed at Senator Elizabeth Warren. She had proposed legislation that apparently suggested to Silberman that Confederate graves were at risk.[iii] This really concerned him as his ancestors had fought on opposite sides of the Civil War, one for the Union and another for the Confederacy.
In his email, he wrote, “Since I am about to be interviewed, I thought it appropriate to unburden myself in opposition to the madness proposed by Senator Warren: the desecration of Confederate graves.” “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 in the South if the Confederate States Returned.”
Silberman explained 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.
Silberman’s email prompted a response from a black law clerk for Judge Sullivan, a district judge now much in the headlines for the Flynn case. Sullivan is black too. The law clerk identified himself as one of a small number of black law clerks at the courthouse and a former history teacher in Louisiana whose maternal ancestors were enslaved in Mississippi.
Mr. Petit, the clerk, wrote to Judge Silberman, “Hi Judge Silberman. Since no one in the court’s leadership has responded to your message, I thought I would give it a try.” He continued, “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 that fought to maintain white supremacy (or the Southern economy of slavery) . . . 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.
The email went on to suggest that military installations that bore Confederate names were sore subjects. The missive was well researched and written and far longer than my brief synopsis. Like Silberman’s email, the clerk’s email went to everyone at the two courts.
What followed was (1) a clarification by Silberman that he was only concerned with cemeteries as Judge Wilkins had earlier suggested in a response to Mr. Petit; (2) a response to Mr. Petit from Judge Silberman that reads, “Thank you for your thoughtful message” and “Judge Wilkins is absolutely correct; my concern was limited only to cemeteries.”; and (3) a flurry of other emails from other judges noting the clerk’s courage and insights.[iv]
Here is my short take:
- Judges who are as old as me, or older like Silberman, would be advised to write less and think more.
- At best, Silberman’s view of Civil War history is distorted. This from a guy who has a bust of Lincoln in his office and served for many years as President and then Chair of the Historical Society for the United States Courts in the Eighth Circuit.
- It is nuts to rename military bases and remove statues from public venues suggesting, as such activities do, that we can remake history in our own modern notion of justice. It is far better to be reminded than it is to deny.
- Petit should be lauded for his response to Silberman. And, he was.
- The kerfuffle says far more about the outside world than it does about the innards of the federal judiciary.
All the best,
Richard G. Kopf
Senior United State District Judge (Nebraska)
[i] Should we rename Ft. Robinson in Nebraska? It was named in honor of Lt. Levi H. Robinson, who had been killed by Indians while on a wood detail. And yet in1879, Chief Morning Star (also known as Dull Knife) led the Northern Cheyenne in an outbreak. Because the Cheyenne had refused to return to Indian Territory, where they believed conditions were too adverse for them to survive, the army had been holding them without adequate food, water or heat during the severe winter to try to force them into submission. And, soldiers hunted down the escapees, killing men, women, and children in the “Fort Robinson massacre.” The Supreme Court described it as a “shocking story” and “one of the most melancholy of Indian tragedies.” Conners v. United States, 180 U.S. 271 (1901) (Justice Henry Billings Brown finding no federal liability). Perhaps not ironically, the Justice had written the majority opinion in Plessy v. Ferguson.
[ii] More broadly, the interview of a Senior Judge is frequently done to make oral and video histories of the judge’s life and times. Indeed, I interviewed the former Chief Judge of the Eighth Circuit, Bill Riley, for precisely that reason.
[iii] I understand that during the debate over the amendment, which took place behind closed doors, Sen. Tom Cotton, R-Ark., offered an amendment that would exempt graves and monuments. Warren pushed back, arguing that an exception for monuments would be far too broad and could become a loophole that undermined the requirement, but she agreed that there was no need to rename gravesites themselves.
[iv] The Intercept received a leaked copy of these emails from an anonymous source who was not Mr. Petit and, wrongly in my view, suggested that Silberman was against renaming military bases. The Washington Post followed up with a story of its own.