Part V in a Series, BF Editor's Blog. David Sentelle: How One Right-Wing Judge Can be a Wrecking Ball to the Constitution

BUZZFLASH EDITOR'S BLOG

Mark Karlin, Editor and Publisher, BuzzFlash.com

This is my fifth entry on David Sentelle, the Zelig of partisan GOP judges on the federal court. But as promised, I am going to spend one entry in this series introducing you to a partisan right wing sidekick of Sentelle's, Senior U.S. District Appellate Court Judge Laurence Silberman.

You can read the fourth entry by clicking here; the third entry by clicking here; the second entry by clicking here; and then following that back to the first entry by clicking here.

Like Sentelle, Silberman has had a profound impact in protecting and advancing the interests of the GOP, as a jurist and as a behind the scenes Republican advisor.

November 16, 2007

It was not surprising that Ronald Reagan appointed Laurence Silberman to the D.C. Court of Appeals in 1985.

Silberman has long been rumored to have been involved in -- along with William Casey -- a 1980 back-channel deal with Iran to delay the release of the American Embassy hostages until after the November election in which Reagan faced Jimmy Carter. Indeed, the hostages were released the day that Reagan was inaugurated.

Even Senator Harry Reid makes reference to the probable Reagan Campaign/Silberman collusion with Iran to keep our citizens in capitvity longer in order to help the right wing win the 1980 election, which they did. Reid mentioned this in comments questioning Silberman's credibility in regards to his appointment as co-chair of the whitewash Iraq Intelligence Commission.

Reid actually does a good job of detailing some of Silberman's more egregious partisan activity as a judge, including his overturning of the Poindexter and North Iran-Contra convictions -- in which he was joined by David Sentelle -- to, as Reid notes, "In 1987, when Reagan was under investigation by an independent counsel, Silberman did away with the Independent Counsel Act, saying it was unconstitutional."

Of the North/Poindexter "Get out of Jail Free Cards" that Silberman and Sentelle handed them, Reid recalls: "There is the documentation of many meetings of Silberman with the people in the White House, including Colonel North, prior to this all taking place." That is how partisan GOP hacks work, and why the Democratic leadership has been snoozing as the right wing has made the court system just another arm of the RNC and Republican presidents.

Furthermore, Reid notes chillingly in terms of connecting the dots, "Silberman worked as an attorney in the Justice Department. He took the No. 2 job under President Ford when Rumsfeld and Cheney had top jobs in the White House of President Ford."

But perhaps even more disturbingly is the blatant role that Silberman played in advising players in the effort to impeach Clinton, while ruling on cases relating to Clinton as he sat on the federal bench.

David Brock, who was then -- before his conversion to becoming an honest journalist -- a writer working as a hit man to pen articles that would help smear Bill Clinton recalls that Silberman and his wife openly discussed strategy with him on how best to wound Clinton.

Again, we will run a long revealing excerpt from an interview, this one with Brock that appeared on BuzzFlash on May 29th of 2002:

BUZZFLASH: Now let's talk about another aspect of involvement in the judiciary. You were very involved with the Judge Clarence Thomas nomination hearings in terms of your writing for the right-wing. You also seemed quite involved with the Silbermans. It was still astonishing to see the extent that a sitting federal judge was interacting with the efforts to attack Clinton -- Judge Lawrence Silberman and his wife that is. Silberman gave you advice on proceeding with articles that attacked Anita Hill and the President.

DAVID BROCK: Judge Lawrence Silberman, who sits on the D.C. Circuit Court of Appeals, was an appointee of President Reagan to that court. His wife Ricky was the vice-chairman of the Equal Employment Opportunity Commission during the period that Clarence Thomas was the chairman on the Commission. I met them originally as sources for my first book on the Clarence Thomas-Anita Hill hearings. They went beyond the role of source.

BUZZFLASH: And he was a sitting judge at the time?

DAVID BROCK: Yes he was a sitting judge. For example, they reviewed in draft the galleys of that book. And so it certainly went beyond a reporter-source relationship. And coming out of that, Judge Silberman became a mentor to me and was someone who I relied on, as well as Ricky, for political advice while I was at the American Spectator pursuing a lot of the anti-Clinton stories. When Ricky Silberman left the Equal Employment Opportunity Commission, she founded, or was one of the co-founders, of the Independent Women's Forum -- it was actually her idea. And it was actually Ricky Silberman's idea to approach Ken Starr to file that friend-of-the-court brief in the Paula Jones case. And Ricky knew the Jones case was simply payback for the Anita Hill affair. She thought, wouldn't it be delicious that Clinton would now be accused of sexual improprieties in the same way that Clarence Thomas had been? Judge Silberman played an absolutely key role at a critical juncture.

I write in the book that I had misgivings about publishing the Troopergate article, even back at the time I was working on it. I had some concerns about -- both about the credibility of the troopers and also had some concerns about setting the precedent of vetting a sitting President's private life. Because again, Troopergate, you know, did not have anything to do at that time with sexual harassment. It was simply tales of alleged extramarital affairs, not even currently, but back when Clinton was governor of Arkansas. And so I was concerned about the journalistic precedent of that, and the political impact, and the impact on my own career if I went ahead with that story. And so I did seek advice from a handful of people, and Judge Silberman's advice was to publish the article. And I think it's fair to say, had he advised me not to, I very well might not have. That's how seriously I took his advice.

BUZZFLASH: Well, you say on page 146 of your book, in reference to that, "though, he was a sitting federal judge who would rule on matters to which the Clinton administration was a party. Larry strongly urged me to go forward."

DAVID BROCK: By the way, his court sits right below the Supreme Court. And so there are a lot of cases that come before the court dealing with the Executive Branch -- regulatory matters, things of that nature. When various assertions of executive privilege were being made by the White House during the impeachment, he sat in on at least one, if not more, of those cases.

BUZZFLASH: And Silberman did not recuse himself.

DAVID BROCK: No, he did not recuse himself, even though, as I said, he had been directly involved. I think it's clear that the kind of activity that Silberman was engaging in is not permitted. It falls into a category of the kind of partisan politics that's not permitted. And he was aware of this, because he would jokingly say to me that, when I would go to him for advice, he often started out saying something like well, it would be improper to advise you on this. And it was set sort of tongue-in-cheek, and then he would go ahead and advise me. So he was aware of what he was doing.

Aside from me, he was also very influential with the Wall Street Journal editorial page in terms of advice. And of course, the Journal editorial page was, along with the Spectator, probably the second principal anti-Clinton vehicle during that time.

DAVID BROCK: If you go back to the Thomas situation, and you look at the issue of the principal advisors to Clarence Thomas during the confirmation strategy, some of them, I later learned, did know some damaging information about him. During the hearing they kept the press away, and they successfully dodged it all. But my view is that if you look at Bush v. Gore, that that decision is tainted by Thomas' ties to the conservative movement in a way that even Scalia and Rehnquist are not, because, of course, they were confirmed with large majorities. But Thomas directly owes his position on the Court to the Federalist Society and to the conservative movement more broadly. And so I think that he really can't be an independent actor. And I think that's why his vote is always so predictable. And in this case, Bush v. Gore, I don't think anyone expected anything other than the way Thomas did come down. And so the implication there is that this is a continual pattern of payback, essentially, by Thomas.

BUZZFLASH: You described the beginning of the full-out assault on the Democrats. You say on page 45 of your book, "more than any single figure for the right, Bork's nomination represented the culmination of a strategy put in place at the beginning of the Reagan administration to force a right-wing economic and social agenda on the country by judicial fiat. Judicial conservatism, the respectful idea of a limited role for the judiciary in a democracy, was abandoned by these right-wing judicial extremists who belonged to a secretive legal network called the Federalist Society, which was devoted to restricting privacy rights and reproductive freedoms, rolling back civil rights gains, and thwarting the authority of government to regulate industry in the public interest."

Then you go on to note that, in the Reagan administration, Federalist lawyers included our old friends Ted Olson and Kenneth Starr, and Clarence Thomas at the Equal Employment Opportunity Commission.

DAVID BROCK: And Judge Silberman, and Bork.

BUZZFLASH: What do you think about the Bush administration making such a key issue of the appointment of their Federalist judges, and Trent Lott threatening to hold up the work of the Senate?

DAVID BROCK: I think one of the most important things in this whole story is the founding of the Federalist Society, and the influence that it has exerted over the years. It started on a couple of college campuses by a couple of law students, one of whom is now the Secretary of Energy, Spencer Abraham, as simply a conservative student organization. If you look at the composition of this administration, the membership in the Federalist Society or affiliation with the Federalist Society is one of the strongest common elements or themes that you can draw, not only for the Executive Branch appointments, but I think, more importantly, for the courts. It is a way for the right-wing to recognize many of their own. And it's essentially a litmus test, without having to impose the actual test, of membership in the Federalist Society. I think one of the ways that you see the influence of the conservative movement most strongly is in this area of the judiciary. And it doesn't necessarily get a lot of press attention. But it is one of the principal ways, if not the principal way, of paying back the conservative movement.

* * *

As in our BuzzFlash Editor's Blog yesterday, we end up back at the fraternity for the right wing takeover of the federal bench: The Federalist Society.

We mentioned that their annual conference is now going on in Washington D.C. The "A" team of the "silent coup" of our judicial system are all there, most of them trotted out as "star" speakers. Even Bush spoke to them last night.

In his remarks Bush, once again -- in an act of brazen hypocrisy -- "blasted" the Senate. Why? According to the Chicago Tribune, Bush complained, in his November 15th Federalist Society speech, that "inside the Beltway,''' too many people have interpreted the Senate's constitutional authority of advise and consent in the confirmation of federal judges as the power to "search and destroy.'' Bush went on to lambaste the Democrats in the senate for not rubber stamping EVERY hack, partisan judge that he nominates.

The Tribune quotes an alternative perspective:

''President Bush's Federalist Society speech tonight sets new standards for hypocrisy on the judicial nominations wars that he has needlessly and deliberately provoked for political reasons,'' says Glenn Sugameli, senior legislative counsel for Earthjustice.

"All too often, President Bush’s previous and current nominees for lifetime federal judgeships have been chosen precisely because their extreme records will reignite ideological battles, ensuring they will not be confirmed at all or without a major fight,'' says Sugameli , calling the speech "gasoline on the simmering embers of the judicial nomination wars.''

Ah yes, but Bush is convinced that the right wing takeover of the judiciary is on course and settling in for a new generation, as he told the members of the Federalist Society: "There's also good news -- and it's here in this room. Thanks in part to your efforts, a new generation of lawyers is rising. A new culture is taking root in our legal community. And principled men and women who understand the Constitution and are able to defend it are finding their way to our nation's law schools and law faculties and law firms -- and even to the corridors of power here in Washington, DC."

Chilling words, indeed.

BUZZFLASH EDITOR'S BLOG