David
Barron’s appointment to the First Circuit Court of Appeals is detrimental to
the integrity of the judiciary for three reasons. First, during his time with
the Justice Department, Barron wrote the opinion justifying the drone killing
of an American Citizen without due process, Anwar al-Awlaki. Second, he has
long advocated for the courts to be used to justify the expansion of government
regulatory authority. Third, both Republican and Democratic Senators oppose his
nomination.
First,
it is a remarkable occasion when the ACLU comes down on the same side of an
issue as Republicans and Conservatives. In a letter issued to US Senators on
May 5, 2014, the ACLU outlined
their position on why Senators should wait to confirm David Barron to the
First Circuit.
“Before voting on the nomination of
David Barron for the United States Court of Appeals for the First Circuit, the
American Civil Liberties Union strongly urges you to read the two known Justice
Department legal opinions, authored or signed by Mr. Barron, which reportedly
authorized the killing of an American citizen by an armed drone, away from a
battlefield. The ACLU also urges you to obtain and read any and all other legal
opinions related to the targeted killing or armed drone program that were
written or signed by Mr. Barron. The ACLU does not endorse or oppose any
nominee, but strongly urges the Senate to delay any vote on confirmation of Mr.
Barron until all senators have an opportunity to read, with advice of cleared
staff, these legal opinions that authorized an unprecedented killing, as well
as any other opinions written or signed by Mr. Barron on the killing program.”
The
documents discussed are memoranda written by David Barron and his colleague
Mark Lederman at the Justice Department’s Office of Legal Counsel (OLC).
Specifically, the two men were given the responsibility to craft a
justification declaring the legality for the deliberate killing of Anwar
al-Awlaki without due process, despite his US citizenship. This
issue has continued to draw more attention since an earlier blog
post.
As
the ACLU warns in its letter,
“No senator can meaningfully carry out his or her constitutional obligation to
provide “advice and consent” on this nomination to a
lifetime position as a federal appellate judge without being able to read Mr. Barron’s
most important and consequential legal writing.”
Second,
Mr. Barron’s confirmation is under fire because of his pursuit of expanding governmental
regulatory authority, as discussed in an earlier blog
post. Barron’s view
of federalism, “turns the
constitutional balance on its head in an effort to achieve progressive policy
goals by giving states more authority to enact stringent regulations of
commerce and by giving the federal government more power in the social sphere,
presumably to liberalize abortion and marriage laws.”
David Barron wrote
in his Fordham Law Review article that, “[A]ny Justice who has anything like a substantive constitutional
vision should also be expected to have some such conception of the proper
vertical allocation of powers and one that will promote rather than undermine
that vision.”
Lastly,
Democratic Senator Mark Udall of Colorado recently said
of Barron, “David Barron is highly qualified, but as one of the
authors of the Anwar al-Awlaki opinion, Barron’s nomination understandably
raises key questions about the administration’s legal justification for the
targeted killing of Americans and about its year-old pledge of greater
transparency.” Mark Udall is joining with other Democratic Senators to oppose
Mr. Barron’s confirmation.
Republican Senator Rand Paul cautioned
that, “I can’t imagine appointing someone to the federal bench, one
level below the Supreme Court, without fully understanding that person’s views
concerning the extrajudicial killing of American citizens.”
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