Federal Judge Lambasts Amendment to Rename Confederate Bases as “Madness,” Gets Thoroughly Bodied by Clerk

The battle over renaming U.S. bases that currently honor Confederate officers broke out in the U.S. Court of Appeals in Washington, D.C., on Monday. But the argument was not in the courtroom; rather, it was launched, and settled, over email. 

In an email sent Circuit-wide on Sunday, Judge Laurence Silberman, a Reagan appointee, lambasted Sen. Elizabeth Warren, D-Mass., for her amendment to the National Defense Authorization Act requiring the military to strip the names of rebel officers from any military assets. 

“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.”

Silberman’s post, which went out widely to scores of Court staff and judges, sat unanswered over the next day, until the first volley was sent back not by a fellow judge but by a clerk: courtroom employees who work directly with judges to research and write their opinions. 

“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.

The correspondence was provided to The Intercept by a member of the Court staff on the condition the identity of the clerk (who was not the source) and judges who replied be kept confidential. 

One side of the Battle of Liberty Place Monument in New Orleans, Louisiana taken by Dorothea Lange in 1937.

The ice broken, others weighed in, with two federal district judges, both of them black as well, replying all to thank the clerk for their thoughtful note. A third 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. 

Indeed, 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, a source familiar with the discussions said. 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. 

The drowning Silberman lunged for the olive branch. “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.

Two more judges weighed in on the clerk’s behalf as the afternoon went on. “Yes — thank you,” wrote one district judge. “It also appears that Senator Warren’s amendment to the annual defense bill that seeks to rename certain Defense Department Assets has advanced in the Senate, and is receiving bipartisan support.”

“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. 

Silberman’s attack on Warren followed a similar attack by President Donald Trump last week, when he referred to the Massachusetts senator as a “seriously failed presidential candidate.”

Seriously failed presidential candidate, Senator Elizabeth “Pocahontas” Warren, just introduced an Amendment on the renaming of many of our legendary Military Bases from which we trained to WIN two World Wars. Hopefully our great Republican Senators won’t fall for this!

— Donald J. Trump (@realDonaldTrump) June 11, 2020

The week before last, Warren privately filed an amendment to order the military to remove the names of Confederates, giving one year to form a commission and rename them. The amendment was to be attached to the National Defense Authorization Act, a must-pass piece of legislation that is debated by senators behind closed doors. 

Warren first posted about her amendment on Tuesday, but it wasn’t until the measure was being considered in executive session the next day that Trump began tweeting, presumably having been tipped off by somebody involved in the debate. 

Cotton was the most vocal opponent of the amendment, but at least two Republicans on the committee, Sens. Joni Ernst and Mike Rounds, were supportive, enough to give Warren the votes she needed. It carried by voice vote. 

Silberman’s rapid climb down shows how thoroughly progressives have won the debate over Confederate monuments more broadly. The art of the wedge amendment, like the one Warren introduced, is an ancient Senate tradition, even if its most effective practitioners in recent years have been Republicans, who have perfected the crafting of writing amendments designed to inflame racial and other social tensions. Forcing Democrats to defend undocumented felons is a favorite ploy. While progressive Democrats have little problem voting to support universal rights regardless of who it covers, those running in swing districts often balk or side with Republicans. 

Democrats, far more of a multiracial coalition than the mostly white GOP, have struggled to turn cultural issues into a wedge to drive into the opposing party. That more so reflects a lack of opportunity than some hesitation to use the tactic. Now that LGBTQ rights are broadly accepted as a cultural norm, Democrats are only too happy to attack Republicans on the issue.

Last week, amid protests against systemic racism and police violence, Democrats found a new one, and exploited it to a rather remarkable political advantage over Trump. On Monday evening, Politico reported that the Army secretary and defense secretary were both “open” to a bipartisan discussion about renaming 10 bases named after Confederate officers who betrayed their nation and led an insurrection against the United States in order to defend the institution of slavery. Many, as well, are considered to have been poor military commanders, irrespective of their treason. Perhaps most absurdly, one base, Fort Pickett, is named for the commander of the most disastrous charge of the war at the Battle of Gettysburg. 

The fact that some 10 bases around the country are named for leaders of a failed rebellion has long bubbled as a concern for those aware enough to make the connection between, say, the iconic Fort Bragg in North Carolina and Braxton Bragg, a major slave owner widely considered to be one of the worst Confederate generals in terms of sheer competence. Rep. Gregory Meeks, D-N.Y., has long advocated for stripping the names of rebels away from military bases. 

Warren’s initial measure gave the military one year to make the change; the amended version gives it three years. It would apply to Forts Bragg, Benning, Gordon, Pickett, A.P. Hill, Lee, Polk, Beauregard, Hood, and Rucker, as well as any streets, ships, aircraft, or other assets named after rebel leaders.