The Volokh Conspiracy

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Two Leaks from the D.C. Circuit List Serve

Judges should stop treating internal emails as confidential.

|The Volokh Conspiracy |


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.

Update: The Washington Post identified the law clerk who wrote to Judge Silberman.

"Since no one in the court's leadership has responded to your message, I thought I would give it a try," wrote Derrick Petit, who works in the chambers of U.S. District Judge Emmet G. Sullivan.

Petit, who declined to be interviewed, concluded his reply to the judge by writing, "This moment of confronting our nation's racial history is too big to be disregarded based on familial ties."

And WaPo also identified the judges who wrote back.

Petit's reply prompted a chain of responses from judges who praised the law clerk for speaking up.

"Thank you for your thoughtful response," wrote District Court Judge Tanya Chutkan.
"Your concerns are indisputably well taken," added D.C. Circuit Judge Harry Edwards. "I hope that one day these issues will be behind us."
"I know it took courage to send such an email," wrote D.C. Circuit Judge Patricia Millett.
Judge Robert Wilkins, who was set to interview Silberman on Monday as part of the summer series for law clerks and interns, also chimed in.

He thanked Petit for his message, "the sentiment of which I absolutely agree." Wilkins also offered a clarification to his colleague's initial email. Silberman, he said, may have been objecting only to the cemetery provision of Warren's proposal.
"I cannot speak for Judge Silberman, but I raise this because it may have been that aspect of the bill to which he was referring and I didn't want there to be an unnecessary misunderstanding," Wilkins wrote.

That prompted Silberman — who was nominated to the bench by President Ronald Reagan and took senior status in 2000 — to write again.
"Thank you for your thoughtful message," Silberman wrote to Petit. "Judge Wilkins is absolutely correct; my concern was limited only to cemeteries."

Silberman spoke to the Post:

Silberman emphasized in an interview Tuesday that he was not criticizing Warren's entire legislative proposal.

"I didn't intend that to be public," Silberman told The Post. "I was being interviewed about my life for the court family, and Judge Wilkins correctly understood what I said."

Wilkins, a former public defender, spent years helping to plan and build the National Museum of African American History and Culture to examine the nation's history, learn from stories of racial division and engage in these types of conversations.

Because of the back-and-forth this week, Wilkins said Tuesday that he and Silberman have scheduled a follow-up discussion for the courthouse community Wednesday.