[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.
____________________