[Congressional Record Volume 160, Number 78 (Thursday, May 22, 2014)]
[Senate]
[Pages S3246-S3247]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, later today we are going to vote on the 
confirmation of David Barron, who has been nominated for a vacancy on 
the U.S. Court of Appeals for the First Circuit.
  Yesterday, we were able to overcome the unjustified Republican 
filibuster of this extraordinary nominee. Now, I have had the privilege 
of serving longer in this body than any other Senator here. I have 
never seen so many filibusters of judicial nominees by any President, 
Republican or Democratic. In fact, Republicans filibustered the very 
first judge President Obama sent to this body, a judge who was strongly 
supported by the Senators from his State, one of whom was the most 
senior Republican in this body, the other a moderate Democrat. 
Fortunately, enough Senators joined together to overcome that 
filibuster.
  David Barron is currently a professor at Harvard Law School. He is a 
nationally recognized expert in constitutional law and the separation 
of powers, administrative law, and federalism. He clerked on the U.S. 
Supreme Court for Justice John Paul Stevens. In fact, I recall that 
Justice Stevens had so much regard for him that he attended Mr. 
Barron's nomination hearing.
  I am in full support of Mr. Barron's nomination. It is almost as if 
he was sent to central casting for who should be a court of appeals 
judge. I have not seen any judicial nominee with better qualifications 
by either a Republican or Democratic President.
  Let me respond to some of the criticisms levied against him with 
respect to the so-called drone memos as well as allegations that he 
would not be an independent judge who adheres to the rule of law. I 
reject both of those criticisms.
  Over the last few weeks, I have spoken extensively about the issue of 
the drone materials and would refer specifically to my statement of May 
14 of this year. While Senators may disagree with the administration's 
policies regarding the use of drones for lethal counterterrorism 
operations--and I have raised concerns about some of those operations--
it is important not to conflate the confirmation of David Barron with 
the disclosure of Justice Department memoranda over which he had no 
control. He wrote an analysis of the law. Others make the decision of 
what they will do.
  Yesterday the Justice Department made the right decision by agreeing 
to publicly release the redacted version of the legal justification for 
the government's potential use of lethal force against U.S. citizens in 
counterterrorism operations. I welcome the administration's additional 
step toward greater transparency.
  Incidentally, these materials have been available to all Senators in 
recent weeks. We have had them in the unredacted form in a secure room 
here in the Capitol. We did that so that nobody could claim: Well, if 
only I knew what was in those memos, I could make up my mind. Every 
single Senator has had an opportunity to read them before today's vote.
  We have heard some Senators argue that the Justice Department legal 
analysis provides the government with a blank check to use lethal force 
against Americans in places such as Germany or Canada. Oh my God, talk 
about grasping at straws. We are dealing with reality here, not Alice 
in Wonderland. Such a claim is simply inaccurate, inconsistent with the 
understanding anybody would have reading these materials.
  In any event, the Attorney General has confirmed that Anwar al-Awlaki 
is the only American who was specifically targeted and killed since 
2009. Awlaki was a senior operational leader of all of Al Qaeda in the 
Arab Peninsula, located in Yemen. He directed the failed attempt to 
blow up an airliner over Detroit on Christmas Day 2009. He was 
continuing to plot attacks against the United States when he was 
killed, according to the Attorney General.
  I am glad a number of Senators share my deep regard for the 
constitutional rights of Americans and have spoken about that on the 
floor. I hope that after Mr. Barron is confirmed, they will show they 
really believe what they have been saying by joining me and 21 other 
Senators in cosponsoring the USA FREEDOM Act to help restore America's 
constitutional and privacy rights.
  Finally, both Mr. Barron and a long list of bipartisan supporters 
have forcefully refuted any indication that he views the role of a 
judge as that of a policymaker. In a response to a question from 
Senator Grassley, Mr. Barron stated the following under oath:

       The judicial obligation is to set aside whatever personal 
     views one may have and to decide the particular case at 
     issue. A judge must base the decision in any case solely on 
     the facts and the law, while respectfully considering the 
     arguments of the litigants. I would take that obligation to 
     be an inexorable one, just as I felt obliged to set aside any 
     personal views I may have had in providing legal advice 
     within the executive branch while serving as the Acting 
     Assistant Attorney General for the Office of Legal Counsel 
     and as a career lawyer in that Office. I believe the best way 
     to ensure one honors that obligation is to immerse oneself 
     fully in the particular facts of the case and the law 
     relevant to it and then to apply the law faithfully to those 
     facts.

  Mr. Barron's respect for the rule of law was recently reaffirmed by 
Stanford Law Professor Michael McConnell, a well-respected conservative 
scholar and former George W. Bush appointee to the Tenth Circuit. In a 
letter dated May 7, 2014 in support of Mr. Barron's nomination, 
Professor McConnell stated:

       I suspect that on particular controversial issues, Barron 
     and I disagree more often than not. But I have read much of 
     his academic work, and followed his performance as acting 
     head of the Office of Legal Counsel. In my opinion, his 
     writings and opinions have demonstrated not only intelligence 
     (even where we disagree) but respect for the rule of law. In 
     the Office of Legal Counsel, whose functions closely resemble 
     those of a judge, Barron's publicly released opinions 
     indicated that he was consistently a force for legal 
     regularity and respect for the constitution and laws of the 
     United States. That is an important and precious thing.

  I ask unanimous consent that Professor McConnell's letter be printed 
in the Record at the conclusion of my remarks.
  It should be clear from Mr. Barron's testimony and Professor 
McConnell's letter that David Barron would faithfully discharge his 
duty as a judge in a manner consistent with the Constitution. Senator 
Grassley cited yesterday to some statements made by Mr. Barron in his 
academic writings, but as Professor McConnell noted in his letter:

       It is important to bear in mind that academic legal writing 
     in constitutional law is often exploratory and provocative. 
     No one should assume that an academic would take the same 
     approach toward deciding cases that he does in writing about 
     cases.

  Professor McConnell should know, as he is a prolific academic who was 
similarly able to discharge his duty as a judge faithfully and 
consistently with the Constitution when he served on the bench. As a 
reminder to Republicans who are currently opposing Mr. Barron's 
nomination on these grounds, I will note that the Senate unanimously 
confirmed Professor McConnell's nomination to the Tenth Circuit by 
voice vote in 2002 during the George W. Bush administration.
  Mr. Barron is truly an outstanding nominee. So outstanding, in fact, 
that Professor McConnell called him ``one of President Obama's two or 
three best nominations to the appellate courts.'' I would urge all 
Senators to vote to confirm Mr. Barron to the First Circuit.

[[Page S3247]]

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                          Stanford Law School,

                                                      May 7, 2014.
     Hon. Senator Harry Reid,
     Majority Leader, U.S. Senate,
     Washington, DC.
     Hon. Senator Mitch McConnell,
     Republican Leader, U.S. Senate, Washington, DC.
     Hon. Senator Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Senator Charles Grassley,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Re Letter of support for David Barron.

       Dear Senators Reid, McConnell, Leahy, and Grassley: I do 
     not often interject myself into the politics of judicial 
     confirmations, but in the case of David Barron I make an 
     exception. In my opinion, David Barron is one of President 
     Obama's two or three best nominations to the appellate 
     courts. Based on his scholarship and record of public 
     service, he has the potential to be one of this nation's 
     outstanding jurists.
       It should be obvious that my assessment does not stem from 
     political agreement. Barron has described himself as an 
     advocate of ``progressive constitutionalism''; I believe the 
     Constitution should be interpreted without a partisan lens, 
     in terms of the principles reflected in its text and history. 
     I suspect that on particular controversial issues, Barron and 
     I disagree more often than not. But I have read much of his 
     academic work, and followed his performance as acting head of 
     the Office of Legal Counsel. In my opinion, his writings and 
     opinions have demonstrated not only intelligence (even where 
     we disagree) but respect for the rule of law. In the Office 
     of Legal Counsel, whose functions closely resemble those of a 
     judge, Barron's publicly released opinions indicated that he 
     was consistently a force for legal regularity and respect for 
     the constitution and laws of the United States. That is an 
     important and precious thing.
       Some groups have been described Barron as ``an unabashed 
     proponent of judicial activism.'' That characterization, 
     frankly, demonstrates a lack of familiarity with the tone of 
     much academic debate over constitutional issues. Within that 
     framework, Barron stands out as an advocate of lawyerly 
     restraint. It is important to bear in mind that academic 
     legal writing in constitutional law is often exploratory and 
     provocative. No one should assume that an academic would take 
     the same approach toward deciding cases that he does in 
     writing about cases.
       In ordinary times, Barron's legal ability and professional 
     integrity would suffice to ensure his confirmation. But 
     unfortunately, in recent decades, and especially during 
     President George W. Bush's presidency, the opposition party 
     has taken a more ideological and adversarial posture toward 
     judicial nominations than the framers of our Constitution 
     intended. It is understandable that Republicans today would 
     apply the same adversarial standards to President Obama's 
     nominations as the Democrats applied to exemplary nominees of 
     his predecessor. It is my hope that eventually, this process 
     of mutually assured destruction will pass, for nominees of 
     both parties. That cannot be expected to occur without mutual 
     accommodation and confidence that the same standards apply to 
     nominees from both sides.
       Nonetheless, David Barron's nomination should be supported 
     by Senators of both parties. Perhaps the most significant 
     constitutional questions of our time arise from the 
     unilateral use of executive power in both the domestic and 
     international arenas. David Barron has written powerfully on 
     this subject, demonstrating a balance between the need for an 
     energetic executive and the centrality of law and the 
     legislative branch. He has supported efforts to adopt laws to 
     enable judicial review of executive actions that might 
     otherwise escape judicial review because of lack of standing, 
     and has written powerfully about the need for constitutional 
     limits on executive excesses.
       Some may wonder whether Barron's defense of separation of 
     powers against executive unilateralism, which he articulated 
     in the context of the Bush presidency, will survive intact in 
     a presidency he supports. That is a legitimate question. No 
     one knows the answer. But speaking as a fellow legal academic 
     and sometime nominee, I believe that David Barron is a 
     straight shooter and will not trim the sails of his deep-felt 
     constitutional convictions on account of the different 
     direction of political winds. One of this nation's proudest 
     claims is that the limitations of constitutionalism hold firm 
     without regard to which party is in power. I believe David 
     Barron will carry on that tradition.
       Beyond generalizations about judicial philosophy, this 
     nomination has encountered resistance because of Barron's 
     authorship of opinions in the Office of Legal Counsel 
     justifying drone attacks by American forces on specified 
     individuals abroad. The Administration's public legal defense 
     of these strikes, especially by Attorney General Eric Holder, 
     have been less than convincing as a legal matter. It is 
     important for Congress to consider the legality of these 
     strikes, but I strongly urge that Barron's nomination to the 
     First Circuit not be collateral damage to this debate.
       The pertinent question for this nomination cannot be 
     whether any Senator agrees or disagrees with the practice of 
     drone strikes. Barron was not Commander in Chief and he did 
     not order the strikes. He has not been nominated to a 
     position with authority over drone strikes, so his view of 
     those strikes is relevant only to the more general question 
     of his suitability to be an appellate judge on a court of 
     broad jurisdiction. His job as acting head of the Office of 
     Legal Counsel was to advise the President based on the 
     traditional legal authorities of text, history, and 
     precedent. He must be evaluated in light of that role.
       Of course, neither I nor anyone else can evaluate the legal 
     arguments made in Barron's OLC opinions until they are 
     released. But whatever their content, it is difficult to 
     imagine that they would place Barron outside the mainstream 
     of professional legal judgment. The question of drone strikes 
     is novel and much debated, and the authoritative legal 
     sources are scant. It is far from clear that the Due Process 
     Clause even applies to military attacks on targets in places 
     abroad where American law does not run. If it does, it is 
     equally unclear what kind of process is required when split-
     second decisions are made that could save countless innocent 
     lives. These are discussions that should occur in the proper 
     place, but a judicial nomination is not the forum for their 
     resolution.
       Ultimately, this confirmation requires a judgment about 
     judicial character. The most important characteristic of a 
     great judge is not brainpower or empathy, but the willingness 
     to apply rules of law dispassionately and unflinchingly to 
     all cases, regardless of the political context. My sense from 
     long conversations with David Barron, and review of his 
     writings and legal opinions, is that he is such a person. I 
     urge members of the Senate to give their advice and consent.
           Best regards,
                                             Michael W. McConnell.

  Mr. LEAHY. I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.

                          ____________________