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.”