[Congressional Record (Bound Edition), Volume 160 (2014), Part 6]
[Senate]
[Pages 8474-8477]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           BARRON NOMINATION

  Mr. GRASSLEY. Mr. President, I wish to speak about Harvard law 
professor David Barron's nomination to the First Circuit. I will do so 
by addressing some aspects of Professor Barron's record I find 
particularly troubling. At the end of the day, I believe his record 
reveals a nominee who simply doesn't belong on the Federal bench.
  I will also update my colleagues on the efforts to withhold material 
relevant to this nominee from the American public, as well as, it 
appears, from the Senate.
  Unfortunately, the White House continues its refusal to confirm that 
it has provided the full Senate with all Barron-related drone 
materials. As I stated 2 weeks ago, every Senator should be provided 
access to any and all Barron memos related to the drone issue, but 
before I turn to Barron's drone materials, I will discuss with my 
colleagues some of the other problematic aspects of this nominee's 
record.
  I have reviewed the record. It is a record of legal reasoning and 
policy positions that are far outside the mainstream of legal thought. 
Professor Barron's record is even outside the mainstream of typically 
left-wing legal thought that we see in so many of our law schools. It 
is a record that reveals Professor Barron's judicial philosophy. While 
that judicial philosophy may be appropriate for the ivory towers of 
academia, it has no place on a Federal appellate court. It is also a 
record that reveals Professor Barron's embrace of an approach to 
judging that is flatly inconsistent with what Federal judges are called 
upon to do.
  Professor Barron has been very candid about his view on the role of 
the Federal courts. So from that standpoint, he is intellectually 
honest. It is fair to say he appears to view the Federal judiciary as a 
political branch of

[[Page 8475]]

our government, not the judicial branch interpreting law instead of 
making law. I will recount some of the evidence which leads me to this 
conclusion.
  Professor Barron has written that the courts are a ``significant 
wielder of power'' for ``progressive potential.''
  What he appears to mean is that the courts should be used as an 
instrument to impose progressive policies on the American people, a 
role generally reserved to the legislative branch of government. These 
are of course policies that liberals couldn't otherwise impose through 
legislation because they are so far outside the political mainstream.
  Professor Barron also appears to believe that progressives should 
mask their motives. He has written that candor and clarity have 
potential to ``obstruct progressive decisionmaking'' and that ``candor, 
clarity, and activism cannot co-exist.''
  If that is what he believes, he is intellectually honest. His 
solution to this problem is, ``Candor and clarity seem a preferable 
choice for sacrifice'' to all-important progressive decisionmaking.
  I would like my colleagues to stop and think about whether that kind 
of thinking is compatible with the role of a Federal judge. It is 
surely compatible with being a legislator but not being a judge. I 
think the answer is, quite simply, it is not because judges are called 
upon to decide cases based upon laws applied to the facts.
  Consider this quote from the professor: ``Principled frankness has 
its place, but it need not always lie between the covers of the United 
States Reports.''
  Let that sink in for a moment. The ``United States Reports'' he is 
referring to of course are the volumes containing the reported opinions 
of the U.S. Supreme Court.
  So when we consider this statement together with his view that candor 
and clarity have the potential to ``obstruct progressive 
decisionmaking,'' it then becomes very clear he believes that liberal 
judges should hide their true intent.
  That is an astounding proposition. It is unthinkable that someone who 
holds such a cynical view of the judiciary could obtain a lifetime 
appointment to one of the Nation's highest courts. What more assurance 
could my colleagues have that Professor Barron views the Federal 
judiciary merely as a tool for liberal policymaking?
  Consider another statement. The professor has suggested that 
``principled judicial interpretation may obstruct democratic 
constitutional politics.''
  Is that the sort of person who should be judging instead of 
legislating? Comments such as these make it clear to me that this 
nominee has a ``whatever it takes'' judicial philosophy. He will 
aggressively do whatever it takes to reach his desired progressive 
policy outcomes.
  Are any of my colleagues ready to vote for a judicial nominee who has 
hinted that ``principled judicial interpretation'' might occasionally 
need to take a backseat to political considerations? It is in a body 
such as we are in right now--the Senate--where political considerations 
and policy considerations rule according to what our constituents tell 
us, but that is not something a judge takes into consideration.
  The professor is an unabashed advocate of what he calls ``progressive 
federalism.'' According to Professor Barron, the purpose of progressive 
federalism is to ``promote national and local relations consistent with 
a broader liberal political vision.''
  Legislators are supposed to have political vision. Judges are 
supposed to judge and not have political vision because they don't run 
for office. Is that the type of individual we want on the Federal 
bench?
  He has added:

       Federalism is what we progressives make of it. Rehnquist 
     and his conservative colleagues have been making the most of 
     it for more than a decade. It's time for progressives to do 
     the same.

  That is a pretty explicit example of his judicial philosophy. That 
philosophy is that the courts are an instrument of leftist 
policymaking. He sees the courts as basically a third political branch. 
That view of the Federal judiciary is totally incompatible with the 
limited role the Constitution assigns to the courts.
  It should be clear to all Senators that if he is confirmed, the 
professor would bring an extreme progressive political agenda with him 
to the First Circuit. Political agendas belong in the Senate, not in 
the First Circuit.
  His academic work gives us some indication of the kind of judge he 
would be. I would note that we had a hearing last week where some of my 
colleagues on our Judiciary Committee expressed their frustration about 
the nomination process. They remarked that every nominee who comes 
before a committee dutifully promises that he or she will objectively 
and dispassionately apply the law to the facts and respect precedent.
  But my Democrat colleagues claim, after being confirmed, some 
nominees do not simply call the balls and the strikes. Let me assure my 
colleagues that we don't need to guess at what kind of judge the 
professor would be. It is not a mystery. He makes no secret of it.
  Let's take another look at his academic work. It is clear the 
professor wouldn't be bound by the law when deciding cases. He's 
admitted as much. Professor Barron is an outcome-oriented legal 
thinker. He will select his desired progressive results and then find a 
way to get there. As I said, it is a ``whatever it takes'' judicial 
philosophy.
  Here is what the professor said about precedent and the doctrine of 
stare decisis: ``Any good lawyer knows how to distinguish a precedent, 
if you need to.''
  You see, in the professor's world view, precedent is just an 
inconvenient obstacle that can be easily dismissed on the road to his 
preferred outcome. Can any of us doubt that as a judge the professor 
would cleverly choose the precedents that he agrees with and ignore 
those he disagrees with?
  Let me give you some more evidence. He lost a case before the Supreme 
Court 9 to 0. In other words, a unanimous vote against legal arguments 
that the professor advocated. He told the press that the Supreme Court 
``got it wrong'' and that his brief ``was right after all.'' Imagine 
that, being voted down 9 to 0 and saying the Supreme Court got it wrong 
because in the professor's judgment every member of the Supreme Court 
got it wrong--but not our professor nominee. What does this statement 
suggest that we can expect from him when it comes to his respect for 
legal precedent? I don't think we can expect much. We cannot expect him 
to follow legal precedent because he disagrees with the Supreme Court 
even after they disagree with him 9 to 0.
  There is more evidence the professor wouldn't be confined by the law 
in reaching the right outcome in a case. He has written that judicial 
decisionmaking, guided by statutes and legal precedent, is ``awfully 
cramped and technical, because it doesn't reflect a broader legal 
culture.''
  Now, get back to basics. I thought the role of a judge was to apply 
the law, not to go fishing around for the ``broader legal culture'' 
until you find support for the result you want.
  So I think we can be very clear. I don't expect President Obama to 
nominate conservatives to the Federal bench. When this President was 
elected, I didn't expect that a crop of young Scalias, Thomases, and 
Alitos would be filling the vacancies in our courts. Judicial nominees 
are a Presidential prerogative, and I voted for many of this 
President's judicial nominees who don't share my views on 
constitutional interpretation or federalism or the First Amendment. I 
voted for them because they were accomplished judges and lawyers who I 
believed could put their personal preferences aside once they took to 
the bench. I would and did expect when I voted for them to objectively 
rule based upon the law; or, if I wasn't absolutely sure, I was willing 
to give them the benefit of the doubt.
  However, given the statements from this nominee's body of work that I 
have recounted today, as well as others, I can't understand how any of 
my colleagues could think the same about this nominee. In fact, I don't 
believe that I have seen a nominee who has

[[Page 8476]]

been more candid about his or her desire to use the courts as an 
instrument of political ideology than Professor Barron.
  This nominee's views are fundamentally incompatible with the limited 
constitutional role of the Federal courts. Here I want to go back to 
the people who wrote the Constitution and tell you what they really had 
in mind about the courts. In Federalist No. 78, Alexander Hamilton 
famously referred to the judicial branch of government as ``the least 
dangerous branch,'' because in the constitutional vision of our 
Founders the courts would have ``neither force nor will, but merely 
judgment.'' The professor's judicial philosophy turns that vision on 
its head. His record reveals a judicial philosophy that says 
progressive policy ends justify the legal means to get there. It is a 
judicial philosophy in which will trumps judgment. I don't share those 
views, and I cannot vote for this nominee or a nominee who does.
  Now I will take a few minutes to update my colleagues on another 
aspect of this nominee that deals with the Barron drone materials and 
the White House's apparent refusal to provide this body with every one 
of the Barron-related drone materials.
  Two weeks ago I came to the floor calling on the Obama administration 
to release any and all Office of Legal Counsel materials on the drone 
program that were written by or related to the professor. I also called 
upon the administration to comply with the Second Circuit's opinion 
last April ordering the Department of Justice to release a copy of the 
41-page Barron drone memo in redacted form. We know this particular 
memo provides the legal arguments for targeted killing of American 
citizens overseas.
  Yet the administration refuses to comply with the court order of the 
Second Circuit to make the arguments public, albeit in redacted form, 
and I haven't heard any indication that the administration intends to 
do that. Not only that, but the White House refuses to tell us whether 
they have made available to the full Senate all of the professor's 
drone-related materials.
  Since 2010, the press has reported that Professor Barron wrote at 
least 2 memos that justified the Obama administration's drone policies 
while he was at the Office of Legal Counsel, and the Second Circuit 
said that there are at least 3 and possibly as many as 11 memos on the 
administration's drone policy. That much is very clear. What isn't 
clear is the scope of the professor's writings on the legality of the 
administration's drone program. We don't know this because the 
administration continues to ignore the bipartisan demands of Members of 
the Senate to make available all of those drone memos, particularly the 
ones written by the professor. We don't know how many of the drone 
memos exist because this administration refuses to even confirm whether 
they have provided all the drone memos to the full Senate. These 
materials are of crucial importance to the full Senate's consideration 
of this nominee.
  I would recount for my colleagues what has happened thus far. On May 
12, White House Press Secretary Jay Carney said that a single drone 
memo--what Carney referred to as the al-Awlaki memo--had been made 
available to the full Senate. But the Press Secretary was asked 
repeatedly how many drone memos exist, and he repeatedly dodged the 
question.
  Here is what Mr. Carney said. Question: ``How many of them are 
there?'' Mr. Carney answered:

       What I can tell you is a couple of things. First, on the 
     Senator Paul op-ed in which he does call for the memos to be 
     made available to senators, we have made the memo available--
     the memo in question available before the vote.

  Again, the White House is dodging here and just addressing one memo. 
So Mr. Carney was asked a second time at the news conference. The 
questioner said: ``How many memos are there? How many memos in which he 
[meaning Barron] was a principal author outlining the legal case?''
  Mr. Carney answers: ``There was one memo in question that I have 
referred to, and that has been made available to U.S. Senators.''
  So the questioner came back: ``Are there others?'' Mr. Carney, the 
Press Secretary, answers: ``Are there other memos that he [meaning 
Barron] drafted? I don't know.''
  Now get this: An answer of ``I don't know'' to how many memos exist. 
That is as good as the White House can do when there is this high level 
of discussion about how many memos exist? Surely there are people 
scrambling around the White House to have an answer, even if they don't 
want to give the answer, because it is already obvious that they want 
to know what is going on themselves. But you still get the answer: I 
don't know how many memos there are. That is the best answer we can get 
from the White House after weeks of bipartisan requests from Senators 
to provide the full Senate with any and all of the professor's drone 
materials. ``I don't know'' is simply not an acceptable response from 
the White House.
  Again, the White House seems to imply that it has provided all of the 
Barron-related memos on the drone program, but the fact of the matter 
is that they will not confirm that. Unfortunately, it appears many 
Democrats as well as members of the media have fallen for this ruse. 
The Second Circuit mentioned at least three memos that were responsive 
to the New York Times Freedom of Information Act request for materials 
on killing Americans abroad. So we know that there are multiple drone 
memos. That is a matter of public record.
  Has anyone in this administration bothered to read the Second 
Circuit's opinion? We know that there are multiple memos on the drone 
program--as many as 11. As the New York Times has reported since 2010, 
there are at least two drone memos that this nominee has written. But 
there may be more. The best answer we have gotten so far is ``I don't 
know.''
  On May 14 the White House changed its tune just slightly. Another 
White House spokesperson told the press that the White House said it 
had provided all of the Barron drone materials related to ``U.S. 
citizens.''
  But, again, the White House hasn't said whether there are additional 
materials that the professor wrote on the drone program. It is not at 
all clear to me why this administration thinks it has done its duty to 
provide the full Senate with materials that are crucial to our 
consideration of this nominee's fitness for a lifetime appointment, 
particularly considering the fact that the White House should make at 
least that one memo available to the public. It is similar to when 
President Jackson didn't like what John Marshall ruled in a particular 
case; the Chief Justice ruled, now let him enforce it. Are we going to 
have that respect for the circuit court opinion that says the White 
House ought to release to the public this decision? Is that the oath 
the President of the United States took to uphold the Constitution?
  Why does this administration think that any Senator would vote on a 
judicial nomination without having reviewed the nominee's work on such 
an important topic?
  Moreover, as I mentioned 2 weeks ago, the Freedom of Information Act 
litigation in the Second Circuit is still ongoing. Whatever responsive 
memos that the administration has not yet released may become public in 
the future. Again, are my colleagues ready to vote on this nomination 
without having reviewed all relevant writings of the nominee? Are my 
colleagues ready to shrug their shoulders and accept the White House 
Press Secretary's statement when he says, ``I don't know'' how many 
memos there are? Are my colleagues prepared to face their constituents 
and explain that they didn't bother to track down this controversial 
nominee's complete record on this topic before they voted?
  The Constitution requires every Senator to provide advice and consent 
on a nominee. We cannot satisfy that obligation if this administration 
continues to withhold the professor's writings. At the very least, the 
White House should say definitively that no additional Barron-related 
drone materials exist. What are they hiding?
  The Second Circuit says the professor is the author of the memo that 
sets

[[Page 8477]]

forth the legal framework used to justify killing Americans overseas. 
What else has he written that the administration refuses to release to 
the full Senate? The Members of this body will never know until the 
administration ends the obstruction and provides access to each and 
every one of the memos on drones that Professor Barron has written. 
Again, the administration should comply with the Second Circuit's order 
requiring them to make the opinion of the Office of Legal Counsel 
public, even if it is with redactions.
  Why the rush to have this vote before the public gets to read the 
legal reasoning? Why is the other side so afraid of waiting to vote 
until their constituents read this nominee's legal rationale for the 
targeted killing of American citizens?
  It is time for the White House and the administration to stop playing 
games regarding how many of the professor's memos there are. It is time 
for the White House to stop hiding from the public the materials they 
have been ordered by the court to disclose.
  I will vote against this nominee and urge my colleagues to do the 
same.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Schatz). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. BOXER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. Mr. President, under the order I ask unanimous consent 
for 20 minutes to address the Senate.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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