Tuesday, June 16, 2020

Two Leaks from the D.C. Circuit List Serve

By Josh Blackman - June 16, 2020 at 07:26PM

Enough about Supreme Court cases with leaks. Now, let's move onto the second highest court in the land. In August 2019, someone leaked to the Washington Post an email exchange between D.C. Circuit Judge A. Raymond Randolph and D.D.C. Judge Emmet Sullivan.

A U.S. District Court judge forwarded an email to about 45 judges and their staffs to flag an upcoming climate-change seminar co-sponsored by the research and education agency of the judiciary branch. His note said, "just FYI."

Within an hour a judicial colleague responded sharply to the group, questioning the first judge's ethics and urging him to get "back into the business of judging, which are what you are being paid to do." He also said, "The jurisdiction assigned to you does not include saving the planet."

Randolph subsequently recused from a case involving climate change.

Now, another email exchange has leaked from the D.C. Circuit to the Intercept.

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.

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."…

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.

May I offer some helpful advice to judges, and everyone else: do not treat email as confidential. Everything you put in print may wind up in the Washington Post–literally.

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