[Congressional Record (Bound Edition), Volume 160 (2014), Part 6]
[Senate]
[Pages 8770-8771]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           BARRON NOMINATION

  Mr. CRUZ. Madam President, I rise to discuss the nomination of David 
Barron to be a Federal court of appeals judge. I commend my friend 
Senator Rand Paul for his excellent remarks earlier today and his 
leadership against Mr. Barron's nomination.
  I have known Mr. Barron for a long time. He and I were classmates in 
law school. He is a smart man. He is a talented man. He is a professor 
at Harvard Law School and he is a well-respected professor. However, 
Mr. Barron is an unabashed judicial activist. He is an unapologetic and 
vocal advocate for judges applying liberal policy from the bench and 
disregarding the terms of the Constitution and the laws of the land. If 
the Members of this body vote to confirm him, we will bear 
responsibility for undermining liberty and undermining the rule of law 
in this country.
  It is well known that Mr. Barron, as a senior official in the Obama 
Justice Department, authored memos allowing the U.S. Government to use 
drones to kill American citizens abroad who were known and suspected to 
be terrorists, without any trial, without any due process. To date, we 
still don't have the details of all of those memos. A number of us, 
including myself, have called for releasing the memos that would allow 
the U.S. Government to use lethal force against U.S. citizens. I am 
pleased to say the administration has, in part, complied, but we don't 
have all of those memos. Yet this body is being asked to proceed with 
giving Mr. Barron a lifetime appointment without knowing the full 
context of the advice he gave.
  I would note that Mr. Barron previously, in 2006, joined a group of 
legal scholars calling for more transparency in the OLC opinions that 
he subsequently wrote and that the administration is now keeping 
secret.
  But beyond that, beyond Mr. Barron providing the legal basis for the 
targeted killings of American citizens abroad without judicial process, 
Mr. Barron, both in law school and in his writings as a law professor, 
has been an enthusiastic advocate of judicial activism. It has become 
de rigueur for judicial nominees to forswear activism, to say--even if 
their record is to the contrary--no, no, no, Senator, I will comply 
with the law. To Mr. Barron's credit, his writings have a degree of 
candor that are unusual.
  So, for example, he has argued that courts should override elected 
State legislatures and enforce leftwing policies. Mr. Barron, in one 
particular law review, wrote:

       State supreme Courts, not state legislatures, have also led 
     the revolution in school financing equality, though judicial 
     actions have catalyzed political responses.

  He went on to say that liberals should not object to conservative 
court decisions because ``progressive constitutionalists enamored of 
the Anti-Court rhetoric rarely take account of its potential downstream 
effects on state-court interpretation and legitimacy.''
  In other words, he is worried that people on the left might be 
arguing that courts should follow the law because that would constrain 
the ability of courts to instead impose a far-left political policy 
agenda.
  Likewise, in a different article, he argues:

       It is precisely because the Anti-Court strain singles out 
     conservative judicial activism as the problem that it 
     threatens to work progressive constitutional theory into a 
     corner: it needlessly rejects the progressive potential of a 
     significant wielder of power--the courts. . . .

  Let me underscore that. Every Member of this body who votes to 
confirm Mr. Barron is voting for a candidate who has stated he intends 
to use the courts as a ``significant wielder of power.'' Indeed, what 
is the agenda that he would embrace? He has elsewhere written:

       We contend that the constitutional argument favoring 
     preclusive executive power necessarily rests on a strong form 
     of living constitutionalism.

  There are Members of this body--Democratic Members of this body--who 
are campaigning right now in their home State saying they do not 
support judicial activism, they do not support a so-called living 
constitution, judges imposing far-left policies and disregarding the 
law. Well, let me say, any Democratic Member of this body who votes for 
Mr. Barron is on record in support of judicial activism and living 
constitutionalism.
  Beyond that, Mr. Barron has explicitly written his opposition to 
federalism. Indeed, he says, ``There is precious little in the 
Constitution's text or the history of its adoption that compels the 
particular conservative allocation of national local powers favored by 
the Rehnquist Court.''
  He has made clear his agenda to overturn or ignore Supreme Court 
precedents. When he says there is ``little in the . . . text or the 
history,'' it seems somehow that he has not read or focused on the 
Tenth Amendment or the

[[Page 8771]]

Federalist Papers or the debates on ratification.
  Beyond that, he is an emphatic advocate of the takings clause, of 
government power taking private property, such as the Kelo decision--
big money interests going to government and using government power to 
condemn your private land. He is an emphatic advocate of that and of 
courts facilitating and expanding that.
  He has written that the executive branch should be able to waive laws 
with which it disagrees--a lawlessness that, sadly, has run rampant in 
this administration.
  Anyone who cares about property rights should be dismayed by this 
nomination and should vote against it if you do not want to see overly 
aggressive takings jurisprudence that allows the government to take 
your private property.
  Anyone concerned about free speech should be concerned about this 
nomination if you do not want to see expansive government power taking 
away the rights of citizenry to free speech.
  Anyone who cares about local control and federalism and the ability 
of local school boards and legislatures to make policy decisions should 
be concerned.
  Anyone concerned about our right to life should be concerned about 
drones having the power to take our life without judicial process.
  Anyone concerned about liberty and the rule of law should be deeply 
concerned about a judicial nominee who embraces courts as a tool of 
power and the President disregarding the law.
  I urge my colleagues to oppose this nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Madam President, what is the order?
  The PRESIDING OFFICER. The Senate is in morning business until 12:15 
p.m.
  Mrs. BOXER. Madam President, I ask unanimous consent that I be able 
to speak for as much time as I may consume until that time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. Madam President, Senator Cruz makes an impassioned plea 
against a nominee who is considered by some to be exemplary. It is his 
right to do that, but let me say before my friend leaves the floor, as 
impassioned as he is, calling Mr. Barron a liberal, I have heard many 
call Mr. Barron a conservative. So he must be doing something right. I 
think it is interesting. So let's keep politics out of this and look at 
someone's record.

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