Kopf: A Short Take on Judge Silberman and The Law Clerk

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.

Judge Silberman

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.”

He added:

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.

30 thoughts on “Kopf: A Short Take on Judge Silberman and The Law Clerk

  1. shg

    I hope Mr. Petit, the law clerk, chooses to be a criminal defense lawyers, because he’s got guts.

    But then the fact that someone leaked this email is concerning. I get from the Fragile Clerk Club that they believe that there should be no secrets in chambers, but judges can’t talk amongst themselves without outside eyes peering in, and interpreting what they’re saying in the least charitable way, the loss will be a problem. Then again, Judge Silberman didn’t have to include staff in his email, so unless it was a judge who ratted him out, he was complicit in what happened here.

    1. Kathryn M. Kase

      I hope Mr. Pettit goes on to clerk at SCOTUS, opens a criminal defense practice, and, later, becomes a federal judge. Because he’s got guts and the ability to assemble an impressive argument.

      (See, Judge Kopf and SHG, the kids just may be all right.)

  2. losingtrader

    I have written a lot of really stupid stuff

    No, you? Really?
    That contempt citation for randomly texting you too often…..does that count?
    I was always under the impression you were my personal judge I could call on to issue random silly court orders but the job has gone to your head, Kopf.

    You may still luck out and be accurate about the Huskers not losing a game…… if they don’t play any, or alternatively you can argue the loss didn’t occur if nobody was there to see it.
    What schadenfreude if they go undefeated with no fans in the stadium, but I fear Nebraska is competing with Houston to fill all available ICU beds and I know NE has no chance there.

    Loser. Join me.


  3. Ray

    I’m beginning to think that our federal judges have a lot of free time on their hands… Must be the COVID-19 shutdown.

    I’m not big on tearing down statues (seems kind of Stalinesqe to me–although I’m not sure why our federal military installations should continue to be named after Confederate generals).

    Chopping off the head of Christopher Columbus seems the new rage; there must be a lesson here. When it comes time for your monument to be erected leave instructions with your family to have the government do something abstract (a flat stone, a round globe, or maybe a pyramid) with a nice quote. No need to get the Columbus treatment by some radical leftist a hundred years from now. (They always seem to have a lot of free time on their hands as well).

    *I enjoy your commentaries very much, so please excuse my irreverent snark. (I’m self-employed, so whatever free time I have on my hands doesn’t count–so don’t go there).

      1. Richard Kopf

        If his portrait was removed, could there still be “Jefferson- Jackson Day” fundraiser?

        1. hlmd

          “Let me also make clear that the mad rush to take down statues of historical significance… is silly.”

          Are you including the confederate monuments erected during the Jim Crow era among those of historical significance? What *is* this historical significance you would assign to them? We’re not exactly talking about the proverbial baby with the bath water here. Those monuments venerate men not in *spite* of their despicable deeds, but *for* of their despicable deeds. They were erected with the explicit intention of bolstering white supremacy and intimidating the Black citizenry and re-writing history in service of those ends. They aren’t historical artifacts, they are post-bellum, white supremacist agitprop.

          (Adam Domby’s book “The False Cause: Fraud, Fabrication, and White Supremacy in Confederate Memory” makes a stronger case for those assertions than I could hope to here.)

          1. SHG

            The inclusion of the words “Of historical significance” was to answer your question before it was asked. Yet, you asked anyway because you just couldn’t control yourself.

    1. Richard Kopf


      Thanks for the kind words. And, I love snark.

      No monuments. Perhaps when I die (if my kids pony up for a tiny headstone covering nothings since I will be cremated), these words might be engraved: “I had a lover’s quarrel with the world.”

      But, then again, I would just be stealing from someone far smarter, and a far better writer, than yours truly. My life has been a pretense. No reason to drop it when dead.

      All the best.


  4. Richard Parker

    In 2008, in the city of Tver (Russian Republic) on a back street, I encountered a graveyard of Lenin statues.

    Draw your own conclusions and lessons.

  5. Anonymous Coward

    Is it still possible to split the difference? I think the wholesale destruction of history by going full Taliban on statues is wrong, and naming army bases after defeated enemies is illogical. It’s not like we have a Fort Cornwallis, Fort Sitting Bull, or Fort Santa Anna anywhere in the US, so why have a Fort Bragg?

    1. Richard Kopf

      Anonymous (I refuse to believe you are a coward),

      Sure, my friend, we could split the difference. On rational basis review (kidding), it might even survive. But, if we are to be intellectually coherent, I don’t see much real difference and a lot odd twists and turns when start renaming things to fit present day sensibilities.* But, I acknowledge that my eye sight is failing.

      All the best.


      * General George Henry Thomas, “the Rock of Chickamauga” who fought valiantly for the North, but was from the South, is said to have owned slaves throughout much of his life. Shall we force Fort Thomas, Kentucky, to change its name?

    2. PML

      All I know is if they try and change the names of the bases like Bragg, Hood, Stewart, Polk, Knox and others there is liable to be a mutiny within the Army. The names and history of these bases along with the pride of serving at them is significant. Not to mention the Millions on dollars that would be involved in changing the names.

      Just my opinion after serving for close to 43 years active and as a civilian with the military.

      1. SHG

        Over time, names become dissociated from their source and associated with their present existence, such that the name no longer “honors” anyone, but is that place as it has been for a very long time.

  6. Geoff Barry

    The statue issue is not simply judging historic figures by modern morality, or “going full Taliban” (as AC says). John Marshall may have owned slaves, but he remains arguably the greatest chief justice in US history – our history. Many of the Confederate statues were erected in the late 19th and early 20th century during the resurgence of white supremacy movements in the South. This was part of the “Lost Cause” mythology, a glorification and white-washing (ahem) of the Confederacy as an expression of some sort of “southern” culture. So, if the Daughters of the Confederacy erect a statue of Jeff Davis in 1910 as a deliberate expression of white supremacy, what respect or honor do we owe that action? Jeff Davis is not a hero of the United States – he stands for nothing other than an effort of the southern states to secede from the United States in order to preserve the institution of slavery. And that statue wouldn’t even be a historic artifact of the Confederacy – at best, one could argue it is a historic artifact of the white supremacist sentiments of the Jim Crow era. At worst, as with the Confederate flag, it remains a symbol to the white supremacists of our own time. Given that we are still dealing with that nonsense (especially our black citizens), I don’t think this is a case where we can all stand around together chuckling at the idiocy of those wacky early 20th century white supremacists . . .

    1. SHG

      This issue has been address here in the past, but using the actual facts rather than whatever you learned in sophomore critical theory class. Before you lecture next time, you might want to make sure you aren’t the stupidest guy in the room.

  7. miketrials

    For starters, I really like Judge Kopf. We (trial lawyers) need more like him. But I gotta get off of the train on this one.

    Simply put, there’s no equivalence between removing Confederate monuments and renaming bases (long, long overdue) and desecrating Confederate gravesites (not appropriate, ever). They have no relation, and attempting this form of equivalence, questioning whom else’s monuments should be removed, plays into Southern victimhood on this topic. Washington and Jefferson usually are suggested, and the Judge points to John Marshall. Slaveowners all, but there is a minor difference between them and those other Virginians, including the sainted Bobby Lee, who repudiated their oaths of allegiance and raised their hand in armed insurrection against a lawfully elected government. In so doing, Lee et al. supported a war begun and by another nation (so it claimed), the result of which was that over 600,000 Americans died. Failing to recollect this is, I regret to say, “silly,” or perhaps more accurately, historically disingenuous.

    Sure, there are a dozen-odd military bases named for CSA generals, including some who don’t deserve having a latrine bearing their name. But a Polaris sub (?!?), SSBN-634, capable of extinguishing millions of lives with the push of a button, named Stonewall Jackson? This takes irony to a new level. And the cruiser USS Chancellorsville. Are you kidding me? Laugh as you will about the French, but at least they’ve left to the Royal Navy the ignominy of naming ships after Trafalgar and Waterloo.

    Sorry, Judge, you’re dead wrong. Most of the monuments and vessel/base namings postdate the war and Reconstruction by decades, and are drawn directly from the aggrieved sensibilities of the South, and not those of a patriotic America. If it is appropriate to name a military base after even a competent Southern leader, and there are plenty who qualify, then hy not start naming bases and vessels after Peiper and Yamashita?

    1. SHG

      I often wonder how hard it would be to be capable of distinguishing between “I disagree” and “you’re dead wrong.” You don’t care for it, which is fine but merely a normative choice. It’s not a reason, just your sensibility. No one is ever wrong because they don’t share your sensibility. And since this is America, you’re always allowed to disagree.

  8. Jake

    Don’t all our nation’s enemies lives’ matter? Where are the statues of Osama bin Laden and Saddam Hussein? Why are no bases named after Hoàng Minh Thảo, Paul Hausser, or Alfred von Schlieffen? We should start a petition.

  9. miketrials

    That’s a fair cop. I’ll be among the first to concede that subtlety too often escapes me, and you’re certainly right about the right to disagree which accrues to each of us. I’ve often deployed the former in defense of the latter.
    But I didn’t call views on this subject “silly,” and hope you will concede that it is not exhibiting a mere “sensibility” to take issue with a monstrosity like slavery (I’d hope we’re far past the point where there’s any valid contention about this being a fundamental basis for the creation of the Confederacy), or that its leaders were, not to put too fine a point on it, traitors. I don’t see much daylight between a Ft. Benedict Arnold and Ft. Bragg, which for me reside in the same zip code. Betrayal for money is immoral, but for slavery tends more to the amoral.


    1. SHG

      Did you feel you were so horrifically unclear in your initial comment that you had to spew your feelz again, lest anyone not know exactly how Mike felt, because Mike is the Feelings Leader of SJ? And use the reply button, Feelings Leader.

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