Law clerk speaks up after judge's courtwide email sparks debate over removing Confederate symbols

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A black law clerk was the first to respond after a federal appeals judge shared an email with hundreds of colleagues in which he opined as “madness” a proposal by Democratic U.S. Sen. Elizabeth Warren of Massachusetts.

Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit opposed an early version of a measure that would have banned Confederate markers at gravesites in military cemeteries, the Washington Post reports.

That provision was later removed from the proposal, which would require the removal of names of Confederate generals from military bases. The Intercept had the first coverage. The Volokh Conspiracy also had coverage.

“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 went on to say he was participating in a courthouse interview series about his life and career. Silberman said his ancestors had fought on both sides during the Civil War.

“It’s important to remember that Lincoln did not fight the war to free the slaves,” Silverman continued in the courtwide email. “Indeed he was willing to put up with slavery if the Confederate states returned.”

The first person to respond was Derrick Petit, who said he was one of only five black law clerks in the entire circuit. He is also a former history teacher in Louisiana.

Petit said his maternal ancestors were enslaved in Mississippi. “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,” Petit said.

“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) … 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. … This moment of confronting our nation’s racial history is too big to be disregarded based on familial ties.”

Silberman later responded to Petit that his concern about Warren’s proposal was limited to cemeteries. In an interview with the Washington Post, he said he wasn’t criticizing Warren’s entire proposal.

“I didn’t intend that to be public,” Silberman said. “I was being interviewed about my life for the court family.”

Petit declined a Washington Post request for an interview. The Intercept said it received the correspondence from a member of the court staff who was not the law clerk.

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